R (on the application of ZO (Somalia) and others) v Secretary of State for the Home Department

An application for asylum under the Council Directive 2003/9/EC includes a subsequent application made after an earlier claim has been finally rejected. A person making such an application is therefore an asylum seeker entitled to the Directive’s minimum reception standards, including the benefit of article 11 concerning access to employment.

Administrative inconvenience, provisions principally designed for first applications, and the risk of abusive repeat claims do not justify a narrower interpretation where the text, purpose and legislative history establish the Directive’s intended scope. Unmeritorious repeat claims should be identified and determined promptly through appropriate procedures, rather than excluded wholesale from reception protection.

ZO, a Somali national, and MM, a Burmese national, made further asylum submissions after their original claims had been finally rejected. The Secretary of State had neither determined whether those submissions amounted to fresh claims under rule 353 of the Immigration Rules nor granted permission to work under rule 360.

HH Judge Mackie QC dismissed their judicial review claims. The Court of Appeal allowed their appeals in [2009] EWCA Civ 442, also reported at [2009] 1 WLR 2477. The Secretary of State appealed.

The principal questions were whether article 11 of the Council Directive 2003/9/EC applied to a person making a subsequent asylum application and whether a preliminary reference to the Court of Justice was required under article 267 TFEU. An alternative article 8 Convention argument did not require determination.

1. The appeals were dismissed. The expression “application for asylum” in article 2(b) of the Council Directive 2003/9/EC includes a subsequent application made after an original application has been finally determined. “Applicant” or “asylum seeker” in article 2(c) must be construed accordingly. Article 11 therefore applies to such an applicant (Lord Kerr, delivering the judgment of the Court, paras 23–33).

2. The Reception and Procedures Directives formed part of a comprehensive and coherent European asylum scheme. Their materially identical definitions, common purpose and legislative history demonstrated that reception conditions were intended to operate at all stages and in all kinds of asylum procedure. Later legislation did not alter an established earlier meaning, but its formulation and common legislative ancestry illuminated the proper construction of the earlier instrument (paras 14–31).

3. The prominent use of “reception” did not confine the Directive to an asylum seeker’s first encounter with a Member State. A person, or an application, may be received into the asylum system more than once. Excluding repeat applicants would also conflict with the Directive’s purpose of securing minimum conditions compatible with human dignity (paras 31–32).

4. The alleged anomalies arising from articles 5, 6, 9 and 10 did not warrant a different construction. Some provisions were principally designed for first applications, but that did not remove subsequent applications from the Directive as a whole. Administrative difficulty cannot frustrate an unmistakable legislative purpose established by the text and enacting history (paras 33–42).

5. The possibility of abusive repeat claims likewise did not justify disapplying the Directive to every subsequent application. Article 16 provided some capacity to reduce or withdraw conditions. More fundamentally, the Procedures Directive permitted preliminary and accelerated procedures for identifying and promptly rejecting claims without merit. Genuine applicants should not thereby lose the minimum reception conditions guaranteed by the Directive (paras 43–49).

6. A reference under article 267 TFEU was unnecessary. Applying CILFIT, a national final court should examine carefully the reasoning supporting any contrary interpretation. If that argument could not be accepted on any conventional basis of reasoning, no reference was required. The legislative history made the answer sufficiently clear in this case (paras 50–51).

1. United Kingdom Supreme Court: Dismissed the Secretary of State’s appeals and upheld the Court of Appeal’s construction of the Reception Directive: [2010] UKSC 36.
2. Court of Appeal: Allowed ZO’s and MM’s appeals from HH Judge Mackie QC and held that the Reception Directive extended to subsequent asylum applications: [2009] EWCA Civ 442; [2009] 1 WLR 2477.
3. High Court: HH Judge Mackie QC dismissed ZO’s and MM’s applications for judicial review concerning permission to work.