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

Imperfect transposition of an EU directive following a bona fide misunderstanding does not create an automatic right to Francovich damages. Sufficient seriousness depends on all the circumstances, including the provision’s clarity, the error’s excusability and whether the breach was deliberate.

Article 11(1) of the Council Directive 2003/9/EC does not confer access to employment after an asylum application has received a first-instance decision. Nor does Article 8 of the Convention ordinarily confer a right to work upon a foreign national who has no Treaty, statutory or permitted access to the domestic labour market.

Two asylum seekers appealed from the dismissal of separate judicial review claims concerning refusals of permission to work. Mr Negassi’s fresh asylum claim had remained undecided. He sought Francovich damages for the United Kingdom’s failure to extend Article 11(2) of the Council Directive 2003/9/EC to fresh claims. Collins J dismissed his claim in [2011] EWHC 386 (Admin).

Mr Lutalo received a prompt first-instance refusal, but his appeal was delayed. He argued that Article 11(1) required access to the labour market after a period fixed by the state. His claim was dismissed in [2011] EWHC 2042 (Admin).

Both appellants also contended that refusing permission to work interfered with private life under Article 8 of the Convention.

1. Both appeals dismissed. Maurice Kay LJ, with whom Rimer LJ and Sir Stanley Burnton agreed, held that neither appellant had established an infringement of Article 11 of the Council Directive 2003/9/EC or Article 8 of the Convention.

2. A bona fide but imperfect attempt to transpose a directive requires the nuanced, multifactorial assessment of sufficient seriousness described in the British Telecommunications, Haim and Factortame (No 5) authorities. Automatic liability may arise from a complete failure to transpose a specific provision by the required date. It did not extend to the United Kingdom’s unintentional and genuine misunderstanding concerning fresh asylum claims.

   The exclusion affected a substantial class and served a national rather than an EU interest. Nevertheless, the provision’s chronology, the absence of an earlier authoritative decision, the Commission’s failure to identify the problem and the divided judicial response in the ZO litigation made the error reasonably excusable. The breach was not sufficiently serious for Francovich liability.

3. Had sufficient seriousness been established, Mr Negassi would still have failed to prove the required direct causal link. Article 11(2), read with Article 11(4), required the state to determine conditions for labour-market access. It did not require permission to work. The judge could conclude that similarly restrictive shortage-occupation conditions would have been imposed if the provision had been correctly understood earlier. The resulting claim was speculative.

4. Article 11(1) states when an asylum applicant may be denied access to the labour market. It does not impose a positive obligation to grant access after a prescribed period, particularly after the Secretary of State has made the first-instance decision. The language and structure differed materially from the positive obligations in Articles 10(1) and 11(2). The recitals and Charter provisions could not justify the broader construction advanced by Mr Lutalo.

5. Article 8 contains no general right to work. Its threshold of interference, although not especially high, remains meaningful. Refusal of employment permission did not engage private life where the appellants were foreign nationals without a Treaty, statutory or permitted right of access to the domestic labour market. Tekle concerned exceptional delay under a deliberate policy and was distinguishable.

• Court of Appeal (Civil Division): By [2013] EWCA Civ 151, unanimously dismissed both appeals.
• High Court, Administrative Court—Negassi: Collins J dismissed the judicial review claim in [2011] EWHC 386 (Admin).
• High Court, Administrative Court—Lutalo: HHJ Stephen Davies, sitting as a Deputy High Court Judge, dismissed the judicial review claim in [2011] EWHC 2042 (Admin).