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

A subsequent application for asylum falls within the Reception Directive where no final decision has been taken on that application. The definition of an asylum seeker in Article 2(c) refers to the particular application, not to whether the applicant has previously received a final decision on an earlier claim.

Accordingly, Article 11(2) applies to a subsequent applicant. Where no first-instance decision on that application has been made within one year, and the delay is not attributable to the applicant, the Secretary of State must grant access to the labour market in accordance with the Immigration Rules. Potential abuse and administrative backlog do not justify a restrictive construction.

ZO, MM and DT had each had an earlier asylum claim finally rejected. Each later made further submissions which were awaiting consideration as possible fresh claims for several years. The Secretary of State refused their applications for permission to work under the Immigration Rules.

HHJ Mackie dismissed ZO’s and MM’s judicial review claims. Blake J allowed DT’s claim on Article 8 grounds. ZO and MM appealed, while the Secretary of State appealed in DT’s case. The common issue was whether a person making a subsequent asylum application was an asylum seeker within the scope of the Reception Directive, and could therefore obtain the benefit of Article 11(2).

1. The appeals of ZO and MM were allowed, and the Secretary of State’s appeal in DT was dismissed. Lord Justice Hooper gave the judgment, with which Lord Justice Keene and Lord Justice Laws agreed. DT succeeded on the Reception Directive ground, rather than on the Article 8 ground accepted by Blake J.
2. Article 2(c) defines an applicant or asylum seeker by reference to an application for asylum in respect of which no final decision has been taken. It does not refer to a person in respect of whom no final decision has ever been taken. A prior final decision on an earlier asylum claim therefore does not exclude a person whose subsequent application remains undecided.
3. Nothing in the wording of the Directive excluded subsequent applications. Article 3(1) applied broadly to persons making an asylum application in a Member State. Article 16 also contemplated applicants who had already made an application in the same Member State. Although Article 16 was not decisive, it undermined the proposed exclusion of all subsequent applicants.
4. The risk of abusive claims did not support a restrictive construction. The Directive itself recognised that risk and provided mechanisms for reducing or withdrawing reception conditions. Nor could the administrative backlog, created by the prioritisation of initial applications, justify depriving subsequent applicants of the Directive’s protection.
5. The substantially identical definition in the later Procedures Directive supported this construction. It would be anomalous for the same wording to bear a different meaning when the Procedures Directive plainly addressed subsequent applications.
6. It followed that the appellants could enjoy Article 11(2). On the undisputed position, where a first-instance decision on the subsequent application had not been made within one year and the delay was not attributable to the applicant, the Secretary of State was obliged to grant permission to work under Rule 360. The court did not determine the correctness of Blake J’s Article 8 conclusion.

1. Court of Appeal (Civil Division). Allowed ZO’s and MM’s appeals and dismissed the Secretary of State’s appeal in DT’s case: [2009] EWCA Civ 442.
2. High Court, Queen’s Bench Division. HHJ Mackie QC CBE dismissed the judicial review claims of ZO and MM concerning permission to work. Blake J allowed DT’s claim on Article 8 grounds.