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High Court considers State liability and permission to work whilst awaiting a decision on a fresh claim

High Court considers State liability and permission to work whilst awaiting a decision on a fresh claim
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High Court considers State liability and permission to work whilst awaiting a decision on a fresh claim


Negassi, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 386 (Admin) (04 March 2011)

This case was considered in the High Court and judgement was delievered on 4th March. The action was brought by the claimant, a 35 year old Eritrean national. He had initially arrived in the UK in September 2005 using a false passport. He claimed asylum and was refused by the Secretary of State for the Home Department (herein after referred to as the SSHD). His appeal was heard and dismissed. He travelled to Ireland where he also claimed asylum.

The Irish authorities returned him to the UK in accordance with the provisions of the Dublin Convention. He then submitted representations advanced as a fresh claim. His representatives lodged judicial review action against the SSHD's delay in dealing with his application and refusal not to grant employment rights to the claimant whilst he was waiting for a decision. A request for permission to work was said to have been requested in 2008.
High Court considers State liability and permission to work whilst awaiting a decision on a fresh claim
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The Court considered the Council Directive 2003/9/EC which lays down the minimum standards for the reception of asylum seekers (known as the reception Directive). Article 11 deals with employment rights and provides that member states shall provide for provisions for access to the labour market if no decision is made in respect of the applicants initial application for asylum (and subject to the delay not being attributable to the applicant).

The defendant SSHD argued that the Directive applied only in so far as the claimants initial asylum application and that he could not benefit from the Directive in subsequent applications as he had exhausted his appeal rights.

The claimant's arguments were essentially twofold:

That the blanket prohibition on employment was unlawful and breached his article 8 rights

And that the breach was not justified

The claimant argued that he was entitled pecuniary and non pecuniary damages as a result. The arguments raised were based on ECHR authorities namely Niemietz v Germany (1993) 16 EHRR 97 and Sidabras v Lithuania (2006) 42 EHRR 6).

The court did not find for the claimant in this case although it was recognized that the case was a difficult one. The judge did not accept that there had been a breach of the claimant's article 8 rights to a private and family life and no interference. Damages could only be awarded where a breach of article 8 is determined. The judge commented that even if he had found that there was an article 8 breach, that that breach would have been proportionate in accordance with the law.

In this case it is worth noting that the judge considered the case to be difficult and recognized that in some cases, prohibition could give rise to a claim. Ultimately, in this case however, damages were denied to the claimant.

It is believed that the case may go to the Court of Appeal and therefore a different outcome may be possible. All new updates will be posted.

For further information, please contact us on 0207 569 3035 or alternatively at info@ergensharif.co.uk or visit our website at www.ergensharif.co.uk




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