R (MM (Burma) and another) v Secretary of State for the Home Department R (DT (Eritrea)) v Same [2009] EWCA Civ 442; [2009] WLR (D) 166

R (MM (Burma) and another) v Secretary of State for the Home Department; R (DT (Eritrea)) v Same; [2009] EWCA Civ 442; [2009] WLR (D) 166

R (MM (Burma) and another) v Secretary of State for the Home Department
R (DT (Eritrea)) v Same
[2009] EWCA Civ 442; [2009] WLR (D) 166

CA: Laws, Keene, Hooper LJJ: 20 May 2009

A person whose asylum claim had been finally determined in country A against him or her and who made a subsequent claim for asylum in country A came within the ambit of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (“the Reception Directive”) and was therefore able to enjoy the benefits of art 11(2) of that directive and be afforded conditional access to the labour market.
The Court of Appeal so stated when giving reasons (i) for allowing, on 1 April 2009, the appeals of the claimants, MM (Burma) and ZO (Somalia), from the decision of Judge Mackie QC on 25 June 2008 [2008] EWHC 1604 (Admin) dismissing their claims for judicial review of decisions refusing them permission to work several years after they had made as yet undecided applications for asylum subsequent to earlier unsuccessful asylum claims, and (ii) for refusing on the same date the appeal of the defendant, the Secretary of State for the Home Department, from the order of Blake J of 11 December 2008 [2008] EWHC 3064 (Admin) declaring that the refusal of DT’s application for permission to work, which had been made five years after an as yet undetermined application for asylum made subsequent to an earlier unsuccessful asylum application, was, in the light of the delay, a breach of article 8. The Court of Appeal granted DT an extension of time for issuing a respondent’s notice seeking to uphold the decision of Blake J on the grounds that DT fell within the ambit of the Reception Directive. Having announced its decision, the Court of Appeal decided it would be an unnecessary and disproportionate use of the court’s time to hear argument about article 8 and expressed no view as to the correctness of Blake J’s conclusion on that point.
HOOPER LJ said that there was nothing in the wording of the Reception Directive to exclude subsequent asylum applications. The Secretary of State’s strongest argument was the use of the word “reception” in the title and the body of the Directive, but it was accepted that the Reception Directive applied to a first time asylum seeker whose application was made long after his arrival. The definition in art 2(c) referred to an application “in respect of which a final decision has not yet been taken” not to a person “in respect of whom a final decision has not yet been taken”. A subsequent asylum seeker, pending a decision on the subsequent application, was a person in respect of whose application a final decision had not yet been taken. The Secretary of State’s argument that the Directive did not include subsequent asylum seekers within its ambit because to do so would allow persons whose applications for asylum had been rejected to easily trigger the provisions of the Directive by making fresh submissions which would need to be analysed to see if they were “fresh claims” under domestic legislation was rejected. The possibility of abuse was recognised and provided for in the terms of the Directive and His Lordship would be loath to adopt a restrictive interpretation because of the administrative problems caused by a backlog. The Reception Directive and Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in member states for granting and withholding refugee status (the “Procedures Directive”) were designed to implement a common asylum policy and it would be strange if a definition in the Reception Directive were to be given a different meaning to the very similar wording in the Procedures Directive, it being clear that the Procedures Directive applied to subsequent applications. The Secretary of State did not dispute that if a person who made a subsequent claim for asylum was within the ambit of the Reception Directive, domestic legislation obliged the Secretary of State to grant permission to work if a decision at first instance had not been taken within one year of the presentation of the subsequent application for asylum and that delay could not be attributed to the claimant. ZO and MM’s appeals were allowed and the Secretary of State’s appeal in DT was dismissed but not for the reasons given by Blake J.
LAWS and KEENE LJJ agreed.
Appearances: Richard Wilson QC and Philip Nathan (instructed by Messrs Duncan Lewis) for ZO; Richard Wilson QC and Philip Nathan (instructed by Scudamores) for MM; Michael Fordham QC and Adam Tear, solicitor advocate, (instructed by Messrs Duncan Lewis) for DT; Robin Tam QC and Daniel Beard (instructed by Treasury Solicitor) for the Secretary of State.
Reported by: Elanor Dymott, solicitor

See the case here.