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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> ZO (Somalia) & Anor, R (on the application of) v Secretary of State for the Home Department [2009] EWCA Civ 442 (20 May 2009) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2009/442.html Cite as: [2009] 1 WLR 2477, [2009] WLR 2477, [2009] 3 CMLR 27, [2009] EWCA Civ 442, [2009] INLR 652 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE MACKIE QC CBE
MR JUSTICE BLAKE
C0/585/2007 for ZO, CO/9493 for MM and C0/10249/06 for DT
Strand, London, WC2A 2LL |
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B e f o r e :
Lord Justice Keene
and
Lord Justice Hooper
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The Queen on the Applications of ZO (Somalia) and MM (Burma) |
Appellants |
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- and - |
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Secretary of State for the Home Department |
Respondent |
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And |
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The Queen on the application of DT (Eritrea) |
Respondent |
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-and- |
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Secretary of State for the Home Department |
Appellant |
____________________
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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 the Treasury Solicitor) for Secretary of State for the Home Department
Hearing date: 1 April 2009
____________________
Crown Copyright ©
LORD JUSTICE HOOPER:
The issue
"Does a person whose asylum claim has been finally determined in country A against him or her and who makes a subsequent claim for asylum in country A come within the ambit of the European Union "Reception Directive" and thus is able to enjoy the benefits of Article 11(2) of the Directive?"
"If a decision at first instance has not been taken within one year of the presentation of an application for asylum and this delay cannot be attributed to the applicant, Member States shall decide the conditions for granting access to the labour market for the applicant."
"360. 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.
360A. If an asylum applicant is granted permission to take up employment under Rule 360 this shall only be until such time as his asylum application has been finally determined."
"Fresh Claims
353. When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.
This paragraph does not apply to claims made overseas.
353A. Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise.
This paragraph does not apply to submissions made overseas."
"Permission to work - Fresh claims
If a failed asylum seeker makes a fresh asylum claim then provided it is accepted as a fresh claim the procedures set out above should be followed, i.e. the claimant will be entitled to apply for PTW provided he satisfies the criteria in Paragraph 360 of the Rules, otherwise any request for PTW would be a mandatory refusal. If the new asylum claim is not accepted as a fresh claim the person will have no entitlement to apply for PTW."
The facts and procedural history
ZO
MM
DT
The Reception Directive
"Whereas
(1) A common policy on asylum, including a Common European Asylum System, is a constituent part of the European Union's objective of progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Community.
(2) At its special meeting in Tampere on 15 and 16 October 1999, the European Council agreed to work towards establishing a Common European Asylum System, based on the full and inclusive application of the Geneva Convention of 28 July 1951 relating to the Status of Refugees ...
...
(4) The establishment of minimum standards for the reception of asylum seekers is a further step towards a European asylum policy.
(5) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Directive seeks to ensure full respect for human dignity and to promote the application of Articles 1 and 18 of the said Charter.
…
(7) Minimum standards for the reception of asylum seekers that will normally suffice to ensure them a dignified standard of living and comparable living conditions in all Member States should be laid down.
…
(12) The possibility of abuse of the reception system should be restricted by laying down cases for the reduction or withdrawal of reception conditions for asylum seekers.
..."
"(b) 'application for asylum' shall mean the application made by a third-country national or a stateless person which can be understood as a request for international protection from a Member State, under the Geneva Convention [relating to the status of refugees]. Any application for international protection is presumed to be an application for asylum unless a third-country national or a stateless person explicitly requests another kind of protection that can be applied for separately;
(c) 'applicant' or 'asylum seeker' shall mean a third country national or a stateless person who has made an application for asylum in respect of which a final decision has not yet been taken;
…
(i) 'reception conditions' shall mean the full set of measures that Member States grant to asylum seekers in accordance with this Directive;
(j) 'material reception conditions' shall mean the reception conditions that include housing, food and clothing, provided in kind, or as financial allowances or in vouchers, and a daily expenses allowance;
..."
"1. This Directive shall apply to all third country nationals and stateless persons who make an application for asylum at the border or in the territory of a Member State as long as they are allowed to remain on the territory as asylum seekers, as well as to family members, if they are covered by such application for asylum according to the national law.
..."
"1. Member States shall inform asylum seekers, within a reasonable time not exceeding fifteen days after they have lodged their application for asylum with the competent authority, of at least any established benefits and of the obligations with which they must comply relating to reception conditions.
Member States shall ensure that applicants are provided with information on organisations or groups of persons that provide specific legal assistance and organisations that might be able to help or inform them concerning the available reception conditions, including health care.
2. Member States shall ensure that the information referred to in paragraph 1 is in writing and, as far as possible, in a language that the applicants may reasonably be supposed to understand. Where appropriate, this information may also be supplied orally."
"1. Member States shall ensure that, within three days after an application is lodged with the competent authority, the applicant is provided with a document issued in his or her own name certifying his or her status as an asylum seeker or testifying that he or she is allowed to stay in the territory of the Member State while his or her application is pending or being examined.
...
4. Member States shall adopt the necessary measures to provide asylum seekers with the document referred to in paragraph 1, which must be valid for as long as they are authorised to remain in the territory of the Member State concerned or at the border thereof.
5. Member States may provide asylum seekers with a travel document when serious humanitarian reasons arise that require their presence in another State."
"1. Member States shall grant to minor children of asylum seekers and to asylum seekers who are minors access to the education system ... "
"1. Member States shall determine a period of time, starting from the date on which an application for asylum was lodged, during which an applicant shall not have access to the labour market.
2. If a decision at first instance has not been taken within one year of the presentation of an application for asylum and this delay cannot be attributed to the applicant, Member States shall decide the conditions for granting access to the labour market for the applicant.
3. Access to the labour market shall not be withdrawn during appeals procedures, where an appeal against a negative decision in a regular procedure has suspensive effect, until such time as a negative decision on the appeal is notified.
4. For reasons of labour market policies, Member States may give priority to EU citizens and nationals of States parties to the Agreement on the European Economic Area and also to legally resident third-country nationals."
"Member States shall ensure that applicants receive the necessary health care which shall include, at least, emergency care and essential treatment of illness."
"1. Member States may reduce or withdraw reception conditions in the following cases:
(a) where an asylum seeker:
- abandons the place of residence determined by the competent authority without informing it or, if requested, without permission, or
- does not comply with reporting duties or with requests to provide information or to appear for personal interviews concerning the asylum procedure during a reasonable period laid down in national law, or
- has already lodged an application in the same Member State.
When the applicant is traced or voluntarily reports to the competent authority, a duly motivated decision, based on the reasons for the disappearance, shall be taken on the reinstallation of the grant of some or all of the reception conditions;
(b) where an applicant has concealed financial resources and has therefore unduly benefited from material reception conditions.
If it transpires that an applicant had sufficient means to cover material reception conditions and health care at the time when these basic needs were being covered, Member States may ask the asylum seeker for a refund.
2. Member States may refuse conditions in cases where an asylum seeker has failed to demonstrate that the asylum claim was made as soon as reasonably practicable after arrival in that Member State.
3. Member States may determine sanctions applicable to serious breaching of the rules of the accommodation centres as well as to seriously violent behaviour.
4. Decisions for reduction, withdrawal or refusal of reception conditions or sanctions referred to in paragraphs 1, 2 and 3 shall be taken individually, objectively and impartially and reasons shall be given. Decisions shall be based on the particular situation of the person concerned, especially with regard to persons covered by Article 17, taking into account the principle of proportionality. Member States shall under all circumstances ensure access to emergency health care.
5. Member States shall ensure that material reception conditions are not withdrawn or reduced before a negative decision is taken."
The competing submissions
"'applicant' or 'asylum seeker' shall mean a third country national or a stateless person who has made an application for asylum in respect of which a final decision has not yet been taken".
He submits that a subsequent asylum seeker is a person in respect of whom a final decision has been made. Counsel for ZO, MM and DT submit that a subsequent asylum seeker, pending a decision on the subsequent application, is a person in respect of whose application a final decision has not yet been taken. The definition refers 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". They point to article 2(b) which provides that: "Any application for international protection is presumed to be an application for asylum ... ."
"The possibility of abuse of the reception system should be restricted by laying down cases for the reduction or withdrawal of reception conditions for asylum seekers."
They submitted that Article 16 (1)(a), third sub-paragraph does exactly that (paragraph 44 above). It makes provision for the reduction or withdrawal of reception conditions when, amongst other things, the asylum seeker "has already lodged an application in the same Member State".
"When the applicant is traced or voluntarily reports to the competent authority, a duly motivated decision, based on the reasons for the disappearance, shall be taken on the reinstallation of the grant of some or all of the reception conditions."
"Where an applicant makes a subsequent application without presenting new evidence or arguments, it would be disproportionate to oblige Member States to carry out a new full examination procedure. In these cases, Member States should have a choice of procedure involving exceptions to the guarantees normally enjoyed by the applicant."
"The purpose of this Directive is to establish minimum standards on procedures in Member States for granting and withdrawing refugee status."
"(c) 'applicant' or 'applicant for asylum' means a third country national or stateless person who has made an application for asylum in respect of which a final decision has not yet been taken".
"This Directive shall apply to all applications for asylum made in the territory, including at the border or in the transit zones of the Member States, and to the withdrawal of refugee status."
"Member States may also provide that an examination procedure in accordance with the basic principles and guarantees of Chapter II [entitled "Basic principles and Guarantees] be prioritised or accelerated if:
...
(h) the applicant has submitted a subsequent application which does not raise any relevant new elements with respect to his/her particular circumstances or to the situation in his/her country of origin".
"1. Where a person who has applied for asylum in a Member State makes further representations or a subsequent application in the same Member State, that Member State may examine these further representations or the elements of the subsequent application in the framework of the examination of the previous application or in the framework of the examination of the decision under review or appeal, insofar as the competent authorities can take into account and consider all the elements underlying the further representations or subsequent application within this framework.
2. Moreover, Member States may apply a specific procedure as referred to in paragraph 3, where a person makes a subsequent application for asylum:
(a) after his/her previous application has been withdrawn or abandoned by virtue of Articles 19 or 20;
(b) after a decision has been taken on the previous application. Member States may also decide to apply this procedure only after a final decision has been taken.
3. A subsequent application for asylum shall be subject first to a preliminary examination as to whether, after the withdrawal of the previous application or after the decision referred to in paragraph 2(b) of this Article on this application has been reached, new elements or findings relating to the examination of whether he/she qualifies as a refugee by virtue of Directive 2004/83/EC [the Qualifications Directive] have arisen or have been presented by the applicant.
4. If, following the preliminary examination referred to in paragraph 3 of this Article, new elements or findings arise or are presented by the applicant which significantly add to the likelihood of the applicant qualifying as a refugee by virtue of Directive 2004/83/EC, the application shall be further examined in conformity with Chapter II.
..."
"1. Member States shall ensure that applicants for asylum whose application is subject to a preliminary examination pursuant to Article 32 enjoy the guarantees provided for in Article 10(1)."
The judgment of HHJ Mackie
" 38. ... , it is highly pertinent to have regard to observations made by Stanley Burnton J (as he then was) in the judgment he gave in January, which went to the Court of Appeal but resulted, I recognise, in permission then being granted. The judge said this in relation to the issue with which I am concerned:
'1.6... It is the experience in this court that there are many, many applications for asylum in cases where there has been a comprehensive, cogent and lawful rejection of an asylum application on bases which are alleged to constitute a fresh claim and which do not in fact constitute a fresh claim when critically examined, either by the Home Secretary or bought the court. A fresh claim must put forward material which creates a realistic prospect of success before an Immigration Judge, having regard to the decision which has already been taken. I do not say [that] this is such a case, but it is the case that the decision already taken in this case, as I have already indicated, was adverse to the claimant.'
He then goes on to deal with other matters at paragraph 1.7, and at 1.8, 1.9 and 1.10 sets out a series of considerations:
'1.8. In my judgment, in interpreting the Council Directive I should bear in mind that background fact. Of course, when someone applies for asylum at first instance (that is to say where a claim has not previously been considered), that person is an asylum seeker but, in my judgment, it would defeat any proper system of dealing with asylum applications if the mere fact that some wholly unverified alleged fresh claim were put forward resulted in someone being an asylum seeker for the purpose of the Directive and the Immigration Rules. Different considerations arise if, on proper examination, the fresh claim is indeed a fresh claim, but I would be loath to interpret either the English legislation or the European legislation as conferring rights on someone whose asylum claim has been rejected and is therefore relying on some supplemental and frequently illusory grounds in order to obtain a different decision from that which was originally made.
1.9. It is more convenient in this case to begin by reference to the Directive itself. Article 2 contains a definition of an application for asylum, which does not call for consideration. But 'applicant' or 'asylum seeker' is defined to mean a 'third country national and stateless person who has made an application for asylum in respect of which a final decision has not yet been taken'. That cannot be said of the claimant. She is a person who has made an application for asylum in respect of which a final decision has indeed been taken. It seems to me that therefore she is not an asylum seeker or applicant within the meaning of the Directive. I do not find that conclusion surprising, notwithstanding her current and outstanding contention that she has a fresh claim, for reasons I have already indicated.
1.10. That approach to the interpretation of the Directive is supported by Article 3 which defines a scope as being applicable:
'... to all third country nationals and stateless persons who make an application for asylum at the border or in the territory of the member state as long as they are allowed to remain on the territory as asylum seekers... if they are covered by such an application for asylum according to the national law.'
I emphasise the words 'if they are covered by such application for asylum according to national law'. There is no pending application for asylum according to national law. It may be that that only applies to the family members referred to in Article 3, but again the claimant is someone who has made an application for asylum. It having been rejected, she at the moment is not allowed to remain on the territory as an asylum seeker because her claim has been rejected and therefore she is not lawfully within this country."
Conclusion
LORD JUSTICE KEENE
LORD JUSTICE LAWS