United Kingdom: Ruling of the Appeals Court on asylum seeker's access to the labour market under Article 11 of the Reception Directive

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Date: 
Friday, October 4, 2013

The judgment concerns two cases (Case No: C4/2011/1021 and C4/2011/2384):

In the first case, an Eritrean, whose first asylum claim was dismissed, applied for permission to work in the course of the processing of his second asylum application. He made reference to Article 11 of the Reception Directive, which regulates access of asylum seekers to the labour market. As his application for permission to work was dismissed, he appealed and made a claim for damages on the basis of the ECJ Francovich case relying on the erroneous transposition of Article 11 of the Reception Directive into British law as identified in the case ZO v Secretary of State for the Home Department. This judgment had clarified that second applications also fell within the scope of Article 11 of the Directive, and that therefore access to the labour market by persons presenting second asylum claims should be considered within a year from the presentation of the application.

The Court of Appeal held that the applicant did not have an automatic right to compensation for damages, as the breach of EU law incurred by the British authorities when transposing Article 11 of the Reception Directive had not been a serious one.  The erroneous transposition had not been deliberate, but the result of a misunderstanding shared by the Secretary of State and several courts. The conclusion arrived at in the ZO judgment had not been self-evident before that judgment. In any event, the applicant could not claim causality between an eventual erroneous transposition of EU law and the fact that he had not been granted permission to work. Article 11 contemplates conditional access of asylum seekers to the labour market. The conditions laid down by the Secretary of State in this respect were very restrictive, and even if she had been aware of the actual scope of Article 11 of the Directive, the conditions she would have laid down would have been restrictive as well, so as not to allow for the conclusion that the applicant would have been granted permission to work. Therefore, there was not causality and no entitlement to damages.

In the second case, the applicant had been recognized refugee status on appeal. He applied for permission to work while the appeals were being heard, and such permission was refused. He then appealed against this refusal. The applicant relied on Article 11.1 of the Reception Directive, which states that "Member States shall determine a period of time, starting from the date on which an application was lodged, during which an applicant shall not have access to the labour market". Article 11.2 establishes that, "[i]f a decision at first instance is not taken within one year of the presentation of the application, Member States shall decide the conditions for granting access to the labour market for the applicant". The Court of Appeals accepts the reasoning of the lower court that, given that Article 11.2 does not impose a positive obligation to grant permission to work to all asylum seekers, Article 11.1 could not be interpreted as doing so.

Read the full text of the judgment here.


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Keywords: 
Subsequent application
Access to the labour market
Tags: 
Slovenia