UK court orders review of right to work for asylum seekers

IT IS a case of good news, bad news, and good news with immigration matters. Firstly the decision in RN was very positive for Zimbabwean asylum seekers, then came the withdrawal of the 7-year concession which affected many foreign nationals in the UK, and now we have an interesting judgement which makes room for the Home Office to allow people waiting in the legacy queue the permission to work.

There has been a very interesting judgment which has just come out of the High Court that has held to be unlawful the policy of a blanket denial of right to work for those caught in the legacy cases. The case is called Tekle v Secretary of State for the Home Department [2008] EWHC 3064 (Admin).

This decision does not give blanket permission for all legacy cases, it states that the Home Office needs to go back to the drawing board and re-think their policy.

The claimant in this case, Mr Tekle, is an Eritrean national. He applied for asylum in this country in November 2001 claiming to have arrived here on false documents shortly beforehand following the deportation of his Ethiopian mother from Eritrea and the detention of his father as a member of a political movement out of favour in Eritrea.

His application for asylum was refused and his appeal dismissed on the May 31, 2002. In April 2004, his solicitors made a fresh application for protection based on a UNHCR paper of January 2004 explaining the difficulties that had been faced by young men of mixed ethnicity and of military service age in Eritrea.

On July 7, 2005, his solicitors sought an update as to what was happening on this fresh claim. They wrote again on August 31, 2006, requesting an update and making further submissions in relation to the inability of the claimant to return to Eritrea or to be removed there.

On August 7, 2007, a further application was made to vary the conditions of his temporary admission to include permission to work as the claimant had been living in the United Kingdom for a considerable period of time without access to funds and living off the goodwill of others.

The Home Office refused to grant the claimant permission to work citing the paragraph 360 of HC 395 which states the following:

“Right to Request Permission to Take up Employment

An asylum applicant may apply to the Secretary of State for permission to take up employment which shall not include permission to become self employed or to engage in a business or professional activity if a decision at first instance has not been taken on the applicant’s asylum application within one year of the date on which it was recorded. The Secretary of State shall only consider such an application if in his opinion any delay in reaching a decision at first instance cannot be attributed to the applicant.”

The Claimants Solicitors challenged the decision of the Home Office in the High Court and argued that it was irrational for the Home Office to apply Rule 360 to applications for permission to seek employment in cases where there is a deliberate decision to defer consideration of whether the fresh claim is indeed a fresh claim in accordance with the priorities set out in the year 2006 in the backlog clearance policy.

Further arguments were put forward on the basis that refusing the applicant permission to work was in breach of his human rights under Article 8 of the ECHR considering that the Home Office was not presently removing people to the claimant’s country of origin.

The High Court did not order that the claimant should be granted permission to work but they did declare that the present policy is unlawfully overbroad and unjustifiably detrimental to claimants who have had to wait as long as this claimant has. The Judge ordered that the policy should be reviewed and reformulated in light of the judgement in this case within three months.

This judgement gives room for the many thousands of people that have cases that are held up in the legacy queue. (See previous article on legacy cases).

Many applicants have applied for permission to work and have been refused.  A change in the Home Office Policy makes sense and has been advocated for by many refugee groups. This is a positive decision and we have to wait and see what changes the Home Office will make.

I would like to categorically state that this decision DOES NOT mean that all individuals in the legacy queue are entitled to permission to work. It means that the Secretary of State has been directed to review the policy or else to face further court action. We, therefore, have to wait and see what the Home Office will do in the coming months.

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.

Rumbidzai Bvunzawabaya is a Solicitor at RBM Solicitors based in Coventry. She can be contacted at info@rbmsolicitors.co.uk or telephone: 02476243685