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

Under Article 11(3) of the Reception Directive, access to the labour market may be withdrawn after a negative decision on a subsequent asylum application where the available appeal or review is non-suspensive. The relevant question is the legal nature of the remedy, not whether removal is practically deferred by enforcement policy or an injunction. Judicial review of a decision that further representations do not amount to a fresh claim is an effective remedy, but it is non-suspensive for this purpose. Directly effective rights under the Directive therefore do not preserve access to employment after that decision. National rules may confer greater protection, but the earlier Immigration Rules did not do so.

The claimant had previously claimed asylum, exhausted his appeal, and later made further representations seeking recognition as a fresh claim. After he obtained permission to work, the Secretary of State decided that the representations did not amount to a fresh claim. The Secretary of State treated that decision as ending his entitlement to work.

The claimant sought judicial review, arguing that the subsequent application remained undetermined and that judicial review was a suspensive remedy. The central issue was whether Article 11(3) of Council Directive 2003/9/EC preserved access to the labour market until judicial review proceedings were finally determined.

1. The claim was dismissed. Article 11(3) of Council Directive 2003/9/EC applied to the withdrawal of labour-market access following a decision on a subsequent asylum application. It permitted withdrawal before a final decision, as defined by Article 2(d) of Council Directive 2005/85/EC, where the available appeal was non-suspensive.
2. Judicial review was an effective remedy within Article 39 of the Procedures Directive against a decision that further representations did not amount to a fresh claim. However, judicial review was not suspensive by its legal nature. The possibility that removal might be deferred under enforcement guidance, or that an injunction might be granted, did not alter that conclusion.
3. The legal character of the remedy, rather than practical enforcement arrangements, supplied the necessary certainty under Article 11(3). Treating a remedy as suspensive because removal was sometimes deferred would incorrectly convert appeals described by law as non-suspensive into suspensive remedies.
4. The Secretary of State was therefore entitled under the Directive to withdraw access to the labour market from 22 June 2010. Article 11(3) did not require access to continue while a non-suspensive remedy was pending.
5. The earlier version of paragraph 360A of the Immigration Rules did not confer a wider right. Properly construed, it did not apply to subsequent asylum applications and could not be read as incorporating the later, comprehensive provisions in paragraphs 360C–360E. The claimant could rely directly on the Directive, but only subject to its lawful qualifications.
6. Although the Secretary of State had argued that her fresh-claim procedure fell outside the Directive’s preliminary-examination provisions, Articles 32 and 39 had to be construed purposively. A national authority could not avoid the requirement of an effective remedy by adopting a variant shortened procedure. That conclusion did not affect the separate conclusion that Article 11(3) did not require a final determination of the subsequent claim before labour-market access could end.