Permission to work

There have been some interesting developments on permission to work for Legacy asylum seekers. Click here for the Story So Far.

I read in some stakeholder minutes recently that UKBA thought it had only be judicially reviewed once about failure to grant permission to work following the case of ZO (Somalia) v Secretary of State for the Home Department [2009] EWCA Civ 442 in the Court of Appeal. I thought this was very surprising at the time, and have now heard that there have been several successful judicial reviews. High Court judges are granting mandatory orders that UKBA grant permission to work. Judgment was given in one such case this week and I’ll post a link to it here once it is reported on BAILII.

This is a classic example of the Home Office wanting it both ways. UKBA lost the case and are so far having no luck appealing it. When UKBA win a court case but the appellants appeal, UKBA insist that the law is at stated in the judgment and will seek to remove people on this basis. When UKBA lose a case and try to appeal, they claim that the judgment should not be enforced. This particular example is even worse, though, as UKBA had the chance to apply for the judgment to be suspended pending resolution of any appeal but declined to do so at the proper time, only to resurrect the argument in individual cases later on.

The legal position is that anyone out there who has been waiting for a year or more for a decision on an asylum claim — whether a first claim or a fresh claim — can seek permission to work and can judicially review UKBA if permission is not granted.

Six year rule for asylum seekers?

The Daily Telegraph has claimed that there is a new policy that asylum seekers may be granted settlement after a wait of four to six (or possibly eight) years following a quiet change to immigration policies.

The policy is allegedly set out in a memo The Telegraph claims to have seen from Matthew Coates, a very senior figure at UKBA, which was signed off by still Immigration Minister Phil Woolas. It concerns Legacy cases and asylum seekers from countries such as Zimbabwe and Somalia to which it is almost impossible to enforce removals. The Telegraph reckons that Coates rejects the idea of an sort of formal amnesty but:

Instead, he recommends changing the current guidance to make it easier for immigration officials to allow the 40,000 to stay in the UK.

He suggests they could be allowed to stay here after having been here for as little as four years, in the most difficult cases, or around six to eight years – rather than 10 to 12 years as the rules stated.

He adds: “We do not believe the rule itself needs amendment. We do, however, need to make some amendments to the underpinning operational guidance to give caseworkers the necessary latitude to deal with this cohort.”

A rather incoherent article has followed the story in The Daily Mail but it really only confuses the issue. It is an appalling piece of writing.

There has been no formal change to Immigration Rule 395C, which lists compassionate circumstances to be considered in removal cases. However, there was a change in the summer to the Enforcement Guidance and Instructions on rule 395C (chapter 53.1.2), which now includes the following examples of cases that should be considered sympathetically:

• An initial application or an ‘in-time’ application for further leave (an application made before the individuals leave to enter/remain had expired) was submitted some time ago. A significant delay in such cases considered as being between 3-5 years.
• ‘Family’ cases where delay by UKBA has contributed to a significant period of residence (for the purposes of this guidance, ‘family’ cases means parent as defined in the Immigration Rules and children who are emotionally and financially dependent on the parent, and under the age of 18 at the date of the decision). Following an individual assessment of the prospect of enforcing removal, and where other relevant factors apply, a 3 year period of residence may be considered significant, but a more usual example would be 4-6 years. Family units may be also be exceptionally considered where the dependent child has experienced a delay of 4-6 years whilst under the age of 18.
• Any other case where delay by UKBA has contributed to a significant period of residence, Following an individual assessment of the prospect of enforcing removal, and where other relevant factors apply, 4-6 years may be considered significant, but a more usual example would be a period of residence of 6-8 years.

These passages are probably the source of the story (or perhaps reflect the implementation of the Coates memo) but they do not seem to bear out the spin given in The Telegraph and The Mail, neither of which mentions that the guidance applies to family cases where there has been significant delay. However, it does explain the occasional strangely liberal, compassionate looking decisions that lawyers may have seen recently.

Right to work

There are two recent important developments on this front.

The first is that the Home Office is appealing the ZO Somalia case on right to work for those who have made fresh asylum claims and have not received a decision within one year of their application. This may well be of interest to those stuck in the Legacy backlog awaiting decisions. Additionally, the Home Office are saying that even if they ultimately lose on the legal point, there is no obligation in European law to grant permission to work, only to decide the terms of access to the labour market. There will be no decisions made on right to work applications until the appeal is decided or the Home Office become, in their own language, ARE (Appeal Rights Exhausted).

The other important development applies only to Turks but is very important for them. In the new case of Sonmez v SSHD [2009] EWCA Civ 582 the Court of Appeal eventually concludes that prior breaches of immigration law do form an adequate basis for refusal of a permission to work application under the Ankara Agreement. The case concerns those who breached immigration law to establish employment or self employment and then have sought to rely on the Ankara Agreement to continue that employment or self employment. It is a split judgment, with Sedley LJ in the minority and Dyson and Maurince Kay LLJ in the majority. All agreed that the common law principle of ex turpi causa non oritur actio (‘from a dishonorable cause an action does not arise’) was not by itself reason to refuse the applications. This was the basis of the Tribunal’s earlier decision. The Tribunal had raised the point of their own motion and not referred themselves to relevant authorities more or less confining that principle to contract or tort. The majority, however, found that previous breach of immigration laws to establish employment or self employment did amount to an abuse and, relying on the earlier cases of Tum and Dari, Kondova and LF (Turkey) this was sufficient reason in European Community law to deny the benefits of the Ankara Agreement.

As with ZO Somalia, this won’t be the end of the matter. Both issues will probably end up in the House of Lords and then the ECJ. That could be several years down the line, though.

Permission to work for fresh asylum claimants

I recently wrote a post on fresh claims for asylum explaining what they are and summarising the criteria. New on this subject this week is ZO (Somalia) v SSHD [2009] EWCA Civ 442, in which the Court of Appeal holds that the same law on permission to work that applies to initial claims for asylum also applies to second or subsequent claims for asylum by the same person.

The Court of Appeal finds that the EC Reception Directive provides a right to work if an asylum claim is outstanding with the Home Office for more than a year. Time waiting for completion of an appeal does not count, it has to be a Home Office delay. The Court decides that there is nothing in the Directive to suggest that the rule does not apply to later claims for asylum, and that such an application need not have been found by the Home Office to be a ‘fresh claim’ within the meaning of immigration rule 353: a one year delay on a second or subsequent application for asylum is sufficient to trigger the right to work in the Directive.

The case is a follow up to the earlier case of Tekle, covered on the blog back in December 2008. I warned then that this does not automatically mean the right to work for Legacy cases, but as explained below this new case is a little different. The Home Office may pursue an appeal to the House of Lords, and even if they do not their appalling record at implementing judgments they lose suggests a long wait before anyone gets given permission to work in a form that would be accepted by an employer.

In fact, ZO (Somalia) is now the law unless overturned. It rather appears that anyone who can prove they made an asylum application to the Home Office — including a second or subsequent claim — and has been waiting for over a year for a decision now has the right to work in the UK. This must apply to thousands of people given the atrocious delays at the Home Office and the whole five year Legacy clearance exercise. It is arguable that the right to work is automatically imparted to them by the Reception Directive and European Community law. It is not something that the Home Office can grant or refuse, although the Home Office is obliged to decide the conditions for entry to the labour market. Nevertheless, the practical reality is that any person without a piece of paper from the Home Office to prove they have a right to work will have difficulty persuading an employer to give them a job.

If you are in this position, I’d suggest getting legal advice about your situation.

Permission to work for Legacy cases?

The case does not mean an automatic right to work

An interesting judgment has just come out in which the High Court has held to be unlawful the policy of a blanket denial of right to work for those caught in the Legacy backlog. It is called Tekle v Secretary of State for the Home Department [2008] EWHC 3064 (Admin). 

This does not mean that those in the Legacy will be granted the right to work. It means that the Home Office have to go away and re-think their policy. It would be open to them to maintain a selective ban on employment in certain cases or even perhaps to maintain a blanket ban, if they put forward better justification and some evidence. They have approximately three months to comply, otherwise there will be further legal action.

Given appalling and very damaging recent Home Office tardiness over Metock and Baiai, it would not be at all surprising if the three month deadline slipped. The Home Office are not good losers.

Waiting for Godot

A few higher court immigration cases came out recently, on which I will post in due course. One was HG & Ors v SSHD [2008] EWHC 2685 (Admin), in which Mr Justice Underhill grappled with the Legacy backlog and the five year wait faced by many Legatees. In other related news, Phil Woolas recently claimed that the Home Office is on track to finish the exercise by summer 2011 and the Home Office have said they are aiming to complete all urgent cases by March 2010.

In HG, Underhill J held that generally there was nothing unlawful about the failure to decide priority cases sooner than March 2010. However, there is room for challenging a Home Office decision that a particular case does not fall within the ‘truly exceptional or compassionate cases’ priority category, which covers cases that have been ’seriously mishandled’ or where there are ‘compelling compassionate circumstances’. Wanting to travel abroad to visit a seriously ill close relative falls within this category, but good medical evidence on the relative’s condition and illness is needed.

Another legacy cases update

There are still quite a few people coming across this blog by searching for news about ‘Legacy’ cases. See previous posts on this if you are new to the subject. The news, such as it is, is that status still being granted in a lot of cases, apparently, but now without reasons being given. Previously some cases were coming through allowed with amazingly generous reasons being given (at least by normal Home Office standards).

If you are stuck in the queue and still waiting, some lawyers report that finding out the team and then name of the Home Office caseworker to whom the file has been allocated is the key. This is no mean feat in itself, and will require a certain amount of patience and perseverance on the telephone. With a specific named person to write to, it is then possible to send in representations setting out the reasons why the person should be allowed to stay, how settled he or she is in the UK and so on. A response is then, apparently, forthcoming.

Any comments from people with positive or negative Legacy decisions most welcome, as it would no doubt be useful to others.

Legacy update

I’m back, after a prolonged absence and thoughts of ending it all etc etc. The blog, not me. I’m fine, thank you.

The news is that of the 6000 or so (roughly 6,800, apparently) families who were the first to receive Legacy questionnaires, most of them will be getting status and that the paperwork should be coming through early this month, in March. The powers-that-be have been telling NGOs and community groups via various stakeholder groups and the like (always makes me think of Buffy et al) that local authorities complained pretty damn quick when the first tranche of status papers came through some months ago, which led the Home Office – ever conscious of the needs, wishes and feelings of immigrants and asylum seekers — to delay the whole caboodle. Local authorities were moaning because the recipients of status get kicked off Home Office support and become eligible for local authority support.

Being as most of the families would already have been on local authority support because they pretty much by definition included children, it sounds like a rubbish excuse to me. Hopefully we’ll see some action, now, though.

The delay only affected the first 6000 or so families, the ‘backlog clearance exercise’ has been ongoing for others, and I don’t have any news on the numbers granted status.

Legacy appeals coming through

A very well sourced rumour has it that 95% of the outstanding 450,000 asylum ‘legacy’ cases so far resolved have resulted in grants of status. However, I hear that the Asylum and Immigration Tribunal have been told to prepare for extra appeals. Who in their right mind appeals against a grant of status (well, legally you can’t anyway unless you haven’t been recognised as a refugee and want to be)? The expected increase in appeals rather suggests that at least some cases are expected to be refused.

The AIT figures may also be good news, at least in the short term, for immigration lawyers. 6,020 outstanding asylum cases were expected to be coming through to appeal between October 2007 and March 2008. An additional 670 appeals per month on top of the base level of appeals normally to be expected were anticipated as a result of legacy refusals from October 2007 onwards, increasing to 1,670 per month from February or March 2008.

I am unable to ascertain how many active cases have been or are being considered by the Home Office under the legacy programme, so it may be the case that 95% are being granted, and 670 or 1,670 per month does actually reflect a 5% refusal figure. It is difficult to believe that the Home Office is quite that efficient!

More news on legacy cases

Further to previous posts on this subject, there have been suggestions that the legacy ’case resolution exercise’ is producing some surprisingly humane outcomes. An organisation previously unknown to me called Positive Action In Housing (PAIH – I’ve included a link on my blogroll as they seem to be making good use of a blog format) put out a so-called ‘press releases’ last week that announced their approval at what they claim is a 90% success rate for legacy cases in Glasgow.

I can’t imagine any journalist actually reading the sorts of ‘press releases’ that the likes of PAIH and the Immigration Advisory Service transmit to the ether on such a regular basis. To whom do they send them, or are they just published on their websites? It looks a lot like ego-onanism to me. Just put the items on a blog and have done with it, please! It’s what blogs are for.

I have a few reservations about the reliability of the PAIH information. For starters, I can’t understand why the National Asylum Support Service (NASS) would have this kind of information. NASS doesn’t make decisions, they just provide accommodation. The Home Office is so fragmented and deaf to internal communication that it would be very surprising if someone had told NASS what was going on. It certainly hasn’t been made public.

If it is true it suggests a surprising and, for them, impressive amount of internal co-ordination at the Home Office and is very good news for asylum seekers stuck in the legacy backlog.  Unless the tabloids get hold of the story and kick up a fuss. Luckily, no-one seems to have read the ‘press release’ though.

I have heard encouraging information from other lawyers. There are tales circulating about status being granted, for example, because a place at school has been found for an asylum seeker’s child and removal would disrupt the child’s education. This would never normally form the basis for a grant of status, so it would appear that far more relaxed criteria than normal are being applied.

This won’t save anyone with criminal convictions, though. Ever since the deportation crisis under Charles Clarke, the Home Office has been paranoid about even very minor misdemeanours.