Sathakaran, R (on the application of) v Secretary of State for the Home Department

A stay should be granted only where the relevant law is uncertain and an anticipated higher-court decision is likely to determine, or substantially affect, the case. Binding Court of Appeal authority directly on point creates no such uncertainty merely because a further appeal may be possible. Speculation about that appeal is insufficient to displace an existing entitlement. The court must also compare the prejudice caused by granting or refusing the stay. Where refusal may temporarily permit work which later proves unauthorised, that prejudice may be less serious than denying a claimant an existing right to work. A claimant within the Reception Directive was therefore entitled to permission to work under paragraph 360 of the Immigration Rules.

The claimant, a Sri Lankan national whose further asylum submissions remained under consideration, sought judicial review after the Secretary of State failed to lift restrictions on his employment. Permission was granted on the right-to-work ground.

The Court of Appeal had recently decided in ZO Somalia & Ors [2009] EWCA Civ 442 that a subsequent asylum applicant fell within the Reception Directive and was entitled to access the labour market where the relevant decision had not been made within one year. The Secretary of State sought a stay pending a possible appeal to the Supreme Court. The central issues were whether the law was sufficiently uncertain to justify a stay and whether the claimant should receive the benefit of the existing Court of Appeal authority.

1. The stay was refused. The court applied the criteria identified in Rama v Immigration Appeal Tribunal [2003] EWHC 27 (Admin): uncertainty as to the relevant law, likely to be resolved by a forthcoming higher-court decision, and a likelihood that the decision would determine or substantially affect the present case. The first criterion was absent because ZO Somalia & Ors [2009] EWCA Civ 442 was binding and directly on point. A possible future appeal was speculation, particularly since permission to appeal had not been granted.
2. The Secretary of State had not sought a stay from the Court of Appeal, and successful claimants in ZO Somalia & Ors had been permitted to work. There was no proper basis for treating this claimant differently.
3. The balance of prejudice also favoured refusal. Granting a stay could deprive the claimant of an existing entitlement for a significant period. If the Secretary of State later succeeded, any temporary permission to work could be withdrawn. That did not amount to grave prejudice to the public interest. The existing law required a powerful reason to displace the claimant’s current entitlement, and none existed.
4. The court treated the Court of Appeal’s concession in ZO Somalia & Ors [2009] EWCA Civ 442, including the reference to paragraph 89 of Hooper LJ’s judgment, as preventing the Secretary of State from arguing at first instance that different labour-market conditions could be imposed on subsequent applicants. The Secretary of State remained free to advance that position before the Supreme Court.
5. The claim therefore succeeded on ground A. The defendant was ordered to grant permission to work pursuant to paragraph 360 of HC 395, as amended, within 14 days. The claimant received his costs, subject to detailed assessment.

This was a first-instance judicial review. The judgment records that permission had been granted by Beatson J on the right-to-work ground and that the relevant issue was governed by the Court of Appeal’s decision in ZO Somalia & Ors [2009] EWCA Civ 442. The Secretary of State was given liberty to seek permission to appeal and a stay from the Court of Appeal.