Min Min & Anor, R (on the application of) v Secretary of State for the Home Department

JUDGE MACKIE: The claimants Ms Omar and Mr Min today seek judicial review of the Secretary of State's decisions to refuse them a right to work while awaiting decisions on their applications to make fresh claims, both of which were put forward on 9th May 2005. The second claimant received permission from Cranston J on 10th March 2008, and as regards the first claimant, permission was conceded by the defendant in the Court of Appeal following a previous refusal by Stanley Burnton J (as he then was). There is also an application by the second claimant to renew an application for permission, which I propose to deal with separately, after giving judgment in this case.

The issue in these two cases is the meaning of "application for asylum" within Article 11 of the Council Directive 2003/9/EC of 27th January 2003, laying down minimum standards for the protection of asylum seekers, which I shall refer to as the "Reception Directive".

Both claimants arrived in this country and claimed asylum. Their applications were unsuccessful and their appeals failed. They have each sought to make fresh claims and seek the right to work. The claimants say that their proposed fresh claims amount to an application for asylum within Article 11; the defendant submits that they do not.

I turn first to the facts which I will deal with briefly because they are not central to this case, it being one of interpretation of the provision which I have identified. Like counsel, I will not deal with the first claimant at all, but concentrate only on the facts as they affect Ms Omar. Ms Omar arrived in the United Kingdom on 29th December 2003 and made an asylum claim the following day, which the defendant rejected on 17th February 2004. On 12th May 2004 the Immigration Adjudicator rejected the asylum claim, finding that the appellant's account lacked credibility. On 8th October 2004 the claimant's attempts to challenge the Adjudicator's determination were rejected by Collins J. On 9th May 2005 the claimant made a fresh application for asylum and there followed a sequence of correspondence which I need not record until February 2007, when permission to apply for judicial review was granted by Bean J. On 31st August 2007 the respondent refused the appellant's application for a right to work. There ensued a correspondence which led to this application.

I next turn to the provisions which are at the heart of the application, which have been the subject of admirable submissions to me from Mr Wilson QC and Mr Nathan for the claimant, and Mr Tam QC and Mr Beard for the respondent. The starting point is fresh claims and the Immigration Rules at 353, which are familiar to those who work in this court. 353 provides, amongst other things that:

Paragraphs 360 and 360A deal with a grant of permission to take up employment, and provide in relevant part as follows:

That provision springs from the Reception Directive to which I have already referred. Both sides place considerable reliance on various provisions within the Directive to support their competing submissions. So I will refer briefly to the principal provisions upon which they rely. The recitals to the Reception Directive include:

Beyond the recitals, and I have regard to all of them when construing the Directive, there are the articles, of which particular emphasis is laid on the following. Article 1 provides that the purpose of the Directive is to lay down minimum standards for the reception of asylum seekers in Member States. The claimants emphasise that there is nothing explicit that limits the reception of asylum seekers to first time or initial asylum seekers only. Within the definitions, there is, at Article 2(b):

At 2(c):

Article 3 is concerned with the scope and reads as follows:

Article 5 and Article 6, dealing with information and documentation, contain provisions relied upon by the defendant as showing that what is intended by the Directive is indeed a reception or welcome to asylum seekers, not a regime to deal with those who have been received into this country, had their applications dealt with and refused and then exhausted rights of appeal.

Some reliance is placed by the claimants on Article 7, dealing with residence and freedom of movement, but the central article in this case is Article 11 that provides in relevant part as follows:

Another article to which attention has been directed is Article 16. Article 16 is headed "Reduction or withdrawal of reception conditions" and is a sort of anti-abuse provision. The article provides:

The claimants rely upon that third condition as being an indication that an asylum seeker may already have lodged a previous application but still be an asylum seeker within the Reception Directive. The defendant says that the condition is entirely consistent with what happens in this and other jurisdictions, those seeking asylum often make multiple applications, frequently under different names.

Paragraph 4 of Article 16 provides:

I turn from the Reception Directive to the Procedures Directive, which I will mention more briefly. The recitals provide at (1):

There is a further reference to the Charter of Fundamental Rights at (8). There is a reference at (11) of the recitals to the interests of applicants and Member States of deciding as soon as possible on applications for asylum. Recital (15) refers to the situation where an applicant makes a subsequent application without presenting new evidence or arguments, and provides that:

Throughout this Directive there are, at passages identified by counsel for the claimants, references to the word "application" preceded by an adjective such as "subsequent", "inadmissible" or "unfounded", which they rely upon to suggest that the absence of such adjectives from "applications" in the Reception Directive connotes a broad meaning.

Under Section 4 [of Chapter 3] there is Article 32, dealing with subsequent application, which contains a framework. Article 32.1 provides that:

The article begins at 1 by referencing to a "person who has applied" not to "an asylum seeker". That categorisation applies elsewhere within the article, notably in paragraph 2. It is submitted on behalf of the defendant that it is clear from Article 32 that subsequent attempts to renew asylum claims are to be looked at in the context of Article 32 and not to be seen in the same category as asylum claims. In the interests of comparative brevity, I have not read out all the passages relied on by the parties.

I next turn to another document relied upon, which is the Charter of Fundamental Rights of the European Union. There is some uncertainty or disagreement about the status of this document, which seems to me not to matter greatly, bearing in mind that its provisions are specifically referred to in the Directive. Reliance is placed by the claimants particularly on the articles identified in the Directive, which are Articles 1 and 18. Article 1, under "Human dignity", provides that:

Article 15 grants a freedom to choose an occupation and the right to engage in work, which applies not just to every citizen of the Union, at 15.2, but to "everyone", at 15.1, but needs to be seen, as the defendant points out, in the context of 15.3:

Article 18 is the right to asylum. The defendant also points out the existence of Articles 51, 52, 53 and 54, which are familiar concepts in charters and treaties of this kind, which place restrictions on the practical scope of guaranteed rights and "abuse". Against that background I was also taken to some authorities.

As regards the approach to be adopted to construing EU legislation, I was referred to the well-known passage of Sir Thomas Bingham, Master of the Rolls (as he then was) in R v Stock Exchange ex parte Else [1993] WLR 70 where, in the well-known passage at page 76, between F and H, he observes that:

I was taken also to two decisions concerning the approach to construction, very short passages in the case of Humblet v Belgian State [1960] ECR 559, and in another ECJ case, Cimenteries (15th March 1967), to a short passage about the approach to construction. I say at once that I approach those cases and the question of the approach to construction with considerable caution. If any point were to arise on the approach to interpretation, the examination of the relevant law would need to be of greater length and, from one's experience of previous cases, of a wider range of authorities than those that have been produced, helpfully but at very short notice, by the claimants. So if this case goes any further, I would urge those seeking to rely on points of European interpretation to develop their case more fully and with more notice than I have had the benefit of.

Turning to the competing submissions, the claimant's case as set out in their skeleton argument is that, having made their respective claims for asylum on 9th May 2005, they became entitled to work under Article 11.2 of the Reception Directive 12 months later. They submit that the Reception Directive draws no distinction between initial and subsequent claims for asylum, and that accordingly nor should its domestic implementation in the form of paragraph 360 of the Immigration Rules. They submit that the defendant's own policy, at least in part, accepts this by conferring the rights available under paragraph 360 to those whose claims have been recognised as fresh under 353 but for whom the final decision has not been taken. The only other written submission in support of their application, other than in response to the defendant's argument, briefly makes a point on Article 16.

Those brief submissions were very helpfully developed in more detail by Mr Wilson for the claimants. The backdrop to his submissions is his suggested approach to construction: he says that the Directives are of direct effect and should be given effect to in that sense. The proposition was not conceded by Mr Tam. Mr Wilson submits that another principle of interpretation supported by his authorities is that where the wording is open to more than one interpretation the provisions should be construed in accordance with the relevant European Union principles. He submits that similarly directives must be construed having regard to respect for fundamental rights.

His first submission is that, simply on the face of the provision, one should see that the interpretation of the defendant is not available because it faces no restrictions upon the definition of "application for asylum" to limit it to a meaning such that only an initial application for asylum is covered. Yes -- but as far as that broad approach is concerned, the meaning of "application for asylum" and "applicant" or "asylum seeker" must be derived where there is an express definition from that definition. That led to counsel's second point, which is the one that I have already indicated in relation to Article 2(b). He says that an application for international protection is what his clients had made. That is presumed to be an application for asylum, another kind of protection that can be applied for separately. As a result, that definition carries over into 2(c) and, on the face of the definition, his clients are asylum seekers or applicants making applications for asylum. He says that, in a sense, the argument stops there, but then he relies upon a number of other factors which he says support his client's position.

He places emphasis on the Articles of the Directive to which I have referred. He relies upon the references in the preambles as being consistent only with the approach which he urges the court to take. He relies upon Articles 1 and 18 of the Charter, which he says should remove any doubts that there might be in construing these provisions as he submits they should be read.

He next argues that Article 16 contemplates that an "asylum seeker", the expression used in 16.1, may also be in the position of being someone who has already lodged an application in the same Member State, and submits that it is clear from Article 16 that the definition should include his clients. He submits that the use of the word "applications" in the Reception Directive without adjectives points to that word having a broad meaning, given the frequency with which that same word is qualified by adjectives in the Procedures Directive.

Finally he submits that where the court is concerned with the interpretation of fundamental rights, those should not be derogated from unless the words are very clear, and he relies upon the ECJ authorities which I have referred to earlier.

For the defendant, Mr Tam relies first on the fact that the Reception Directive is concerned with the minimum conditions for the reception or "welcome" of asylum seekers. That is to say what he describes as an "initial encounter". He submits that the Directive, as its provisions indicate, focuses on this initial encounter between Member State and the person seeking protection. He submits that the definitions of "applicant" and "asylum seeker" confirm this because an applicant or an asylum seeker is not merely a person who has made an application for asylum, but a person who has made an application for asylum in respect of which a final decision has not yet been taken. He relies on some provisions within Article 5 and Article 6 which he says support the concept of initial encounter.

Mr Wilson relies on other provisions which suggest that the encounter may be more than an initial encounter, but that leads to Mr Tam's submission, given the overall purpose of the Reception Directive, the way in which the definitions of "applicant" and "asylum seeker" were expressed, that one can only read the two terms applicant or asylum seeker as being someone whose initial application for asylum has not been finally determined, which in this case both have.

He relies also upon the Reception Directive as being part of a general scheme developed by the Community, and to the specific recognition one finds in the Directive in Recital 15 and in Articles 32 and 34 of a subsequent application being distinct from an initial application. He submits that the purpose and wording of the Procedures Directive indicates that a person making a subsequent application is not to be treated in the same way as an applicant or asylum seeker.

Finally he submits that an alternative reading of these provisions would facilitate abuse. If a failed asylum seeker knows that the simple expedient of making a further claim or further submissions is likely to permit access to certain types of benefits and support, there is almost no disincentive to such an action. He submits that the greater the number of further claims or submissions that are made, the longer it is likely to take for each to be dealt with, and the longer the period for which the benefits or support would be secured. In response to a question from me, he submitted that the difference of interpretation here was so fundamental that it would bear equally harshly and abusively in every single Member State, given the breadth of the distinction which is sought to be drawn.

In my judgment the position is as follows: first, no fine points or distinctions arise over the approach to the interpretation of the directives for the reasons that I have given. If they were to have arisen, I have not been equipped with the material to evaluate them. Secondly, these directives clearly interlink and must be construed with each other in mind. Expressions are used interchangeably and each gives guidance as to the approach to be taken by the other. Thirdly, one must start by looking at the framework of the directives as a whole. When one looks at the directives, the first one deals with the reception of asylum seekers who arrive and seek to make a claim and then have that claim evaluated. The Procedures Directive recognises, in the parts which I have identified, that a separate regime may be appropriate for subsequent applications where applicants make new claims or potential claims without new evidence or material.

Fourthly, it does not seem to me that there are any compelling human or fundamental rights imperatives. When approaching the question of construction one is dealing here with people who arrived in this country, they claimed asylum, their applications were unsuccessful, their appeals failed, they have each sought to make fresh claims and now they seek the opportunity to work. While the fact that they wish to work is entirely understandable and commendable, it does not seem to me that, in the context in which they find themselves, there are any human rights imperatives requiring me to approach the question of construction in a special way.

Fifthly, 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:

It is correct that one observation made by the learned judge at paragraph 1.10 is a reference to the claimant at the moment being not allowed to remain on the territory. That is an observation that may be incorrect, resulting from the fact that 353A was not before the court on that occasion.

When it comes to the interpretation, it seems to me that Mr Tam is correct for the reasons that he gives. Mr Wilson's best point is on the definition within Article 2(b) but when read in context the "application for international protection" is as equally limited to the process of "reception" as an "application for asylum". When looking at the matter in context, I reach the conclusion that the approach of the claimant is not the correct one and that an application by the claimant to make a fresh claim is not an application for asylum within Article 11.

A final reason why I reach that conclusion is because of the potentially abusive effect of that construction identified by Mr Tam, which seems to me to be inconsistent with the purpose and approach of the Directive. There will accordingly be judgment for the defendant.

I will deal with matters arising from the judgment which I have just given before turning to the further matter which I understand Mr Nathan is to raise on the second claimant's behalf.

MR TAM: My Lord, I am grateful for that. The discussions that I have been having with learned junior centre around the question of costs. I do not know what the position is as far as legal aid is concerned. We are not aware of there being any certificate on the file.

MR NATHAN: Legally aided on both.

MR TAM: Legally aided on both, I am told. Subject to seeing the certificates which ought to have been served on us, I do not think that I can properly ask for any costs in the circumstances.

JUDGE MACKIE: No.

MR TAM: So I would have to leave it there.

MR WILSON: My Lord, I have nothing to add to that. That is the position with regards to costs.

JUDGE MACKIE: This is an application for permission to appeal. I do not consider that the appeal has a real prospect of success, its lack of merit being disguised by the able submissions made on behalf of the claimants. It is suggested in this case there is some other compelling reason why the appeal should be heard. It is said there are large numbers of potential claimants who are or may be affected by the outcome. I do not think it is appropriate for me as an occasional judge in the Administrative Court to evaluate that; that is a matter, it seems to me, best left to a Lord or Lady Justice of the Court of Appeal. If there is any doubt of about the position, it seems to me that an application to a Lord or Lady Justice would be justified in legal aid terms.

Anything else?

MR NATHAN: My Lord, I think those provisions still apply today. My Lord, again with respect, and with deference to my leader, can we ask for an expedited transcript, my Lord, in light of the effect on various others?

JUDGE MACKIE: Yes.

MR NATHAN: I am grateful. (Pause). Sorry, I am grateful to Mr Tam.

JUDGE MACKIE: You would like to be paid for your efforts?

MR NATHAN: We would indeed, my Lord, detailed assessment.

JUDGE MACKIE: You are both just about worth it. I will do that.

MR NATHAN: Your Lordship has not heard my application for permission yet.

JUDGE MACKIE: I better do that now.

MR NATHAN: My Lord, before I embark on that, can I just draw to your Lordship's attention one possible error in the judgment. There is a reference to Article 32 of the Procedures Directive falling within Section 4 of the Directive. In fact the correct citation for that would be that it falls within Section 4 of Chapter 3, Chapter 3 being entitled "Procedures at first instance".

JUDGE MACKIE: Thank you.

JUDGE MACKIE: Thank you. This is a renewed application for permission to apply for judicial review, the relevant part of which was refused by Cranston J on 10th March 2008. He said this:

In his application to renew the second ground of the claimant, Mr Nathan faces two hurdles: first he is out of time but seeks the court's indulgence in relation to that; secondly he submits that his client's case falls arguably within the very exceptional circumstances identified by Collins J in FH when he said this:

What Mr Nathan says is that his client's case is arguably exceptional. He claims that the case was last before the Immigration Adjudicator or Immigration Judge by reason of a failure, not a culpable failure in the sense of deliberately suppressing it, but a failure by the defendant to appraise the original judge of the existence of various FCO letters about the risk of persecution in Burma. He submits, by reference to observations of Maurice Kay J (as he then was) in R v IAT ex parte Cindo [2002] EWHC 246 (Admin), that this should take his client out of the queue because this is not some failure by his client to get hold of relevant material but a failure by the defendant to produce it.

Mr Tam QC relies first on the delay but also points to what happened when the matter came before the adjudicator. The fact is the adjudicator found the claimant to be a liar, and that is what governed his conclusions. This is a familiar sort of dispute and does not begin to reach exceptional circumstances of the kind identified by Collins J.

I emphasise that I have given these reasons briefly against a backdrop where we have spent the entire day on another aspect of the this case, and that has given me a full opportunity to read the papers and the skeleton argument of Mr Nathan. I am going to refuse this renewed application for permission.

Unless there is anything else.

MR NATHAN: My Lord, I do not have my instructing solicitor sitting behind me at this stage. I believe on a refusal of permission one is absolutely obliged. Can I just formally ask for permission to appeal on the basis that that allows me to take instructions from my client as well.

JUDGE MACKIE: I do not think I can give permission. If I did have the power to give permission, with respect to Mr Nathan, I would certainly not give it. I say nothing about the underlying merits of the claim, but the suggestion that this is an exceptional circumstance seems to me to be completely hopeless.

MR NATHAN: There is one further application. Just as a matter of housekeeping, in order to appeal your Lordship's substantive decision the time limit is 21 days. I believe on a refusal of permission it is 7 days. I suspect it is highly unlikely an appellant's notice will go in on the renewal of permission, but can I ask for an extension of time from 7 days to 21 days for that application.

JUDGE MACKIE: Any objection? Yes, you can.

MR NATHAN: Thank you.

JUDGE MACKIE: Thank you all very much.