Tekle v Secretary of State for the Home Department

A prolonged refusal to permit employment may interfere with an asylum seeker’s right to respect for private life under Article 8 ECHR, particularly where the person cannot be removed and has remained in the United Kingdom for several years. There is no automatic right to work merely because a claim or fresh claim has been pending for a specified period. However, a blanket policy denying work indefinitely must be justified and proportionate. Generic reliance on immigration-control objectives is insufficient where delay results from historic administrative failure and deliberate backlog priorities. The precise point at which restrictions should be relaxed remains a policy choice for the executive. The court may nevertheless declare an overbroad policy unlawful and require its review.

The claimant, an Eritrean national of mixed Eritrean and Ethiopian ethnicity, had made asylum and human-rights claims which were refused in 2002. He submitted further representations in 2004, but the Secretary of State had not determined whether they amounted to a fresh claim. The delay formed part of the Home Office backlog-clearance policy.

The Secretary of State refused permission to work because the claimant was a failed asylum seeker and was not yet an asylum applicant for the purposes of paragraph 360 of HC 395. Permission for judicial review was granted on the work issue. The central questions were whether the continuing prohibition engaged Article 8 and, if so, whether it was justified and proportionate.

1. The claim succeeded in part. The court declared that the policy was unlawfully overbroad and unjustifiably detrimental to claimants who had waited as long as this claimant. No individual order permitting the claimant to work was made because his personal circumstances were insufficiently established.

2. There is no right to a decision within a fixed period and no automatic right to work merely because twelve months have elapsed. Paragraph 360 of HC 395 does not itself confer such a right on a person whose further representations have not yet been accepted as a fresh claim.

3. The ability to work is an aspect of private life. A prolonged prohibition on employment, self-employment and business activity, combined with the absence of access to cash benefits, may interfere with Article 8 where the claimant cannot realistically be removed and has lived in the United Kingdom for a substantial period.

4. That interference may be justified by immigration-control considerations, but the justification must be compelling and proportionate. The court applied the proportionality approach in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26. Relevant considerations included the length and cause of delay, the practical prospect of removal, the claimant’s inability to work, and whether alternative measures could deter abusive claims.

5. The reasoning in R (FH and others) v Secretary of State for the Home Department [2007] EWHC 1571 (Admin) did not authorise detriment beyond the uncertainty inherent in delay. Its ratio was that backlog priorities were not irrational merely because decision-making was delayed, while other substantial detriment could require intervention.

6. The Secretary of State’s asserted reasons did not justify the blanket policy. The claimant was not seeking work immediately upon lodging a fresh claim, statutory mechanisms existed to address abusive claims, and the availability of support in cases of destitution did not answer the Article 8 justification issue.

7. The court could not prescribe whether permission should be available after two, three or four years, or impose a particular screening or decision timetable. Those matters were for the executive. The policy was expected to be reviewed and reformulated within approximately three months.