Permission to work for fresh asylum claimants

By Free Movement

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. The right to work is automatically given to them by the Reception Directive and European Community law, it is not something that the Home Office can grant or refuse. However, the practical reality is that without a person holding a piece of paper from the Home Office to prove they have a right to work, many employers will not be willing to risk the fines that accompany making a mistake about this question.

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