Minimum standards of dignity must be upheld for asylum seekers

29 July 2010 by

R (on the application of ZO (Somalia) and others) (Respondents) v Secretary of State for the Home Department (Appellant) [2010] UKSC 36 – Read judgment

The Supreme Court has ruled that the UK must provide minimum standards to asylum seekers, including the right to work, whether or not their first asylum application has failed. Asylum seekers will now be able to work if they have been waiting for over a year for a decision.

The ruling is the latest in a line of court defeats for the Government on its asylum policy, including the recent High Court ruling that part of the fast-track deportation system is unlawful, as well as the Supreme Court’s rejection of the policy of sending gay asylum seekers back to countries where they may face persecution for their sexuality.

Minimum standards of human dignity

The minimum standards for the reception of asylum seekers were brought into law by the EC Council Directive 2003/9/EC (the Reception Directive). These entitle asylum seekers to fundamental rights in light of the principles recognised by the Charter of Fundamental Rights of the European Union, and in particular those ensuring respect for human dignity. Article 11 of the Reception Directive guarantees that access to the labour market shall not be withdrawn during appeals procedure.

ZO arrived from Somalia in 2003 and MM from Burma in 2004. Both had their initial asylum applications refused and then made fresh applications. They attempted to judicial review the decision not to allow them to work, but had their applications rejected by the High Court. Their appeals were then allowed by the Court of Appeal.

In the Supreme Court, the Secretary of State argued that where an asylum seeker makes a second application for asylum after his first application has been finally rejected, he is no longer entitled to the benefits granted by the Directive, and in particular the right to work under Article 11. This was because, it was argued, the words ‘application for asylum’ in the Directive only apply to a first application, and not to subsequent fresh applications made after the first has been rejected.

The unanimous judgment of the court was given by Lord Kerr. He rejected the Secretary of State’s argument on the meaning of ‘application for asylum’:

… ‘an application for asylum’ in the Reception Directive must be interpreted to include a subsequent application made after an original application has been determined and that the term ‘asylum seeker’ should be construed accordingly to include a person who makes such a subsequent application. This conclusion seems to me to chime well with the spirit of the recitals to the Directive (para 31)

The court was concerned that if the Secretary of State was correct, then the expression ‘application for asylum’ must be given a markedly different meaning in the Reception Directive from that in the Procedures Directive, a similar instrument laying down minimum standards for asylum procedures. Lord Kerr went on to emphasise the original intention of the Reception Directive to ensure a dignified standard of living:

The Directive seeks to set minimum standards for the reception of asylum seekers that will normally suffice to ensure them a dignified standard of living. It would be, in my view, anomalous and untoward that an applicant who makes a subsequent application after his first application has been finally disposed of should be denied access to standards that are no more than the minimum to permit him to live with some measure of dignity. (para 31)

The court also rejected the Secretary of State’s arguments that various anomalies which would be generated by acceptance of the Applicant’s arguments would mean that the Reception Directive shouldn’t apply at all. The court suggested that in fact the Secretary of State’s preferred interpretation would lead to greater anomalies:

I am reinforced in that view by the consideration that, if the Reception were held not to apply, some decidedly curious consequences would follow. For instance, the duties under Article 8 of the Directive (to maintain as far as possible family unity) and under Article 13 (2) (to ensure a standard of living adequate for the health of applicants and capable of ensuring their subsistence) and 15 (1) (the provision of necessary health care) would not apply to those who make subsequent applications for asylum. (para 42)

The final, and perhaps strongest, of the government’s arguments was that if the court chose to guarantee the rights to previously rejected applicants, this would encourage asylum seekers to repeatedly bring unmeritorious claims in order to keep them within the rights system. However, the court ultimately considered this point ill-founded:

These provisions point powerfully to the way in which the problem of unmeritorious applications should be confronted and dealt with. This is not to be achieved by disapplying the Reception Directive to all repeat applications whether or not they have merit. The problem of undeserving cases should be counteracted by identifying and disposing promptly of those which have no merit and ensuring that those applicants who are genuine are not deprived of the minimum conditions that the Directive provides for. (para 49)

A high standard

The outcome of the Supreme Court decision is that tens of thousands of failed asylum seekers whose fresh applications are grinding their way through the system will now be entitled to basic rights, including the right to work. This is undoubtedly a high standard to maintain, and will place an increased burden on the state in strained times. However, it is surely preferable, as the court pointed out, to those rights being withdrawn after an initial failed application in order to discourage failed asylum seekers from bringing fresh applications, and therefore being stranded and unable to work for years as they wait for their applications to be dealt with.

The Home Office have said that they are “disappointed” with the ruling, with Damien Green, the Immigration Minister, maintaining that “this judgement will only have a short term effect. The long delays in the asylum system will be resolved by the summer of next year when all the older asylum cases are concluded.” If he is right, then this will be welcome news to asylum seekers currently languishing in the appeal process. Meanwhile, it has been reported today that the Home Office are seeking to minimise the impact of the judgment by restricting the kinds of jobs that asylum seekers can take. If this turns out to be true, the restriction may be vulnerable to a court challenge on the same lines.

For the time being, as the court concluded, the problem of undeserving cases “should be counteracted by identifying and disposing promptly of those which have no merit and ensuring that those applicants who are genuine are not deprived of the minimum conditions that the Directive provides for.” In other words, if the asylum system is too slow in dealing with cases, or fails to sift out poor applications early on, this cannot be a reason in itself to deny fundamental rights guaranteed by law.

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