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

A failure properly to implement Article 11 of the Reception Directive does not automatically constitute a sufficiently serious breach giving rise to state liability. Where the failure results from an arguable error of construction, the court must examine the reasons for the error. Damages require a direct causal link between the breach and loss; conditional access to employment does not establish a right to obtain work. An asylum seeker excluded from employment has no freestanding Convention right to work. Article 8 may nevertheless be engaged by unlawful employment restrictions in an appropriate case, but here it was not engaged and, alternatively, any interference would have been proportionate. A declaration, rather than damages, would in any event have provided just satisfaction.

The claimant, an Eritrean national, had made further asylum representations after exhausting his original appeal rights. The Secretary of State treated the employment provisions in Article 11 of the Reception Directive and paragraphs 360 and 360A of the Immigration Rules as applying only to first asylum applications. Following the Supreme Court’s decision in R (ZO (Somalia)) and MM (Burma) v Secretary of State for the Home Department [2010] 1 WLR 1948, that interpretation was wrong.

The claimant had obtained indefinite leave to remain before the claim was determined. He pursued damages for unlawful exclusion from access to employment, relying on EU state liability and section 8 of the Human Rights Act 1998. The issues were whether the breach was sufficiently serious, whether it caused recoverable loss, and whether the exclusion interfered with Article 8 private life.

1. EU state liability. The applicable conditions were: the breached rule must confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach and the damage. Those conditions applied equally to incorrect transposition where the Member State had no discretion.
2. The incorrect limitation of Article 11 to first applications was a breach of the Directive. However, sufficiently serious breach was not automatic. The court had to examine why the failure occurred. An error of construction would support damages only where the interpretation relied on arguments entirely devoid of merit. This was a borderline case, but the interpretation was not manifestly and gravely unlawful.
3. The claimant also failed on causation. Article 11 required only conditional access to the labour market. Member States could impose conditions and give priority to specified groups. Had the Directive been correctly applied, restrictions comparable to those subsequently introduced would have been imposed. The claimant therefore could not show a direct causal link between the breach and employment loss.
4. Article 8. The ECHR did not create a positive right to work for a third-country national. The authorities concerning professional activity and private life did not establish that a person without a right to access the labour market suffered an Article 8 interference merely because employment was prohibited. The contrary approach in Tekle v Secretary of State for the Home Department [2009] 2 All ER 193 was wrong on these facts. Article 8 was therefore not engaged. Alternatively, any interference was proportionate.
5. Even if Article 8 had been breached, damages were not necessary to afford just satisfaction under section 8(3) of the Human Rights Act 1998. A declaration would have sufficed. The claim for damages was dismissed. The claimant would also have failed because he could not satisfy the restrictions in paragraph 360C of the Immigration Rules.

The judgment states that the underlying interpretation of the Reception Directive had been rejected by the Supreme Court in R (ZO (Somalia)) and MM (Burma) v Secretary of State for the Home Department [2010] 1 WLR 1948. This was a first-instance damages claim in the Administrative Court.