THE UK Home Office’s appeal to the Supreme Court in ZO (Somalia) [2010] UKSC 36 has been dismissed.
This confirms that in cases where a fresh asylum claim has been lodged and no decision was reached for a year, the asylum seeker obtains a right to work under European law. This applies in the vast majority of fresh claims.
The Supreme Court’s decision to allow a Somali asylum seeker permission to work in the case of ZO is a landmark ruling. The Court recognised that people who have submitted new evidence to support their claim for asylum (a ‘fresh claim’), and who have waited longer than 12 months for a Home Office decision on their initial claim, should be given permission to work.
This is because they are included within the scope of the EU Reception Directive from the time their application is sent – a provision of the Reception Directive is that an asylum seeker can apply for permission to work if they have not had an initial decision on their claim from the Home Office after 12 months. It also means that those who have made a fresh asylum claim are eligible for asylum support rather being left destitute.
Jonathan Ellis, Chief Executive of the Refugee Council said: “We welcome the Supreme Court’s decision to accept that an asylum seeker who has submitted a fresh claim for asylum should be given permission to work after they have waited twelve months for a decision on their claim.
“The appeal by the former Secretary of State against the Court of Appeal’s decision that this person should be allowed to work, has wasted valuable time and resources at a time when asylum seekers should have been supported to get on with their lives rather than face destitution.
“The vast majority of asylum seekers who come to the UK would rather support themselves through work than be forced to be homeless or to rely on government support. Denying asylum seekers the chance to work means they cannot contribute to the UK economy and condemns asylum seekers and their families to abject poverty.
“We would urge the government to ensure those who have submitted fresh claims for asylum will now be granted support and permission to work under this ruling immediately.”
In light of the confirmation of this decision, it is worth doing a quick note on fresh asylum claims. A failed asylum seeker can apply for asylum again. This is referred to as a ‘fresh claim’. To stop people claiming asylum over and over again, there is a test that a fresh claim has to meet before it will be properly considered by the Home Office. This test for whether a claim is fresh is set out in Immigration Rule 353 and is essentially:
1. Does the asylum seeker have anything new to say, or has anything changed since last time?
2. Does this change of circumstances or new information give the new asylum claim a realistic prospect of success in front of an immigration judge?
The procedure is that the asylum seeker gets together all of the relevant new information and submits it to the Home Office, in person. The Home Office then decide (a) whether the test for a fresh claim is met and then if so (b) whether to grant asylum. The Home Office can conduct an interview if there are any issues that they need to clarify.
In most cases, a decision is made without an interview. If the Home Office decides that the test for a fresh claim has not been met, then there is no right of appeal. If they decide that the test for a fresh claim has been met, but they refuse the claim on other grounds, then there is a right of appeal.
If the Home Office will not even accept that the fresh claim test is met, the only way the decision can be challenged is by a process called judicial review. This is not a straightforward process and a solicitor is needed.
There are a lot of failed asylum seekers still in the UK. No-one seems to know how many. This is the consequence of the Home Office policy of kicking failed asylum seekers out of their accommodation and making them destitute, but not removing them. Inevitably, many drop off the radar and end up working illegally to try and fend for themselves.
The main types of fresh claims are as follows:
1. Where there is a change in a person’s personal circumstances. For example, if after the last claim was decided a person enters into a serious relationship and/or has children or develops a serious medical condition, that person might have a fresh human rights claim to put forward.
2. Where there is a change of country conditions, which means that those who were previously refused asylum because their country was relatively safe are now potentially in danger. There have recently been a lot of Sri Lankan and Zimbabwean fresh claims on this sort of basis.
3. Where new evidence comes to light. If the person’s personal credibility as a witness of truth was completely destroyed in an earlier claim for asylum, any evidence that he or she puts forward will of course be looked at with scepticism. Generally evidence from an independent and perhaps verifiable source is more useful.
Rumbidzai Bvunzawabaya is a Solicitor at RBM Solicitors based in Coventry. Visit website:http://www.rbmsolicitors.co.uk, e-mail info@rbmsolicitors.co.uk or call 02476520999
Disclaimer: This article only provides general information and guidance on immigration law. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information