Possible good news for those stuck in 'Legacy backlog' and cannot work
John O | 12.12.2008 08:41 | Migration | Social Struggles | Workers' Movements
Please be clear the decision in 'Dawit Tekle v SSHD' though it holds that a blanket denial of the right to work for those caught in the 'Legacy Backlog' is 'Unlawful'', does not give permission to work. The government could comply with the High Court directive but change the policy to get round the objections of the court and continue a blanket ban.
Note: NCADC will not enter into any correspondence on this bulletin, it is for information only.
"What I can and do declare for the reasons given in this judgment that the present [Backlog] policy is unlawfully overbroad and unjustifiably detrimental to claimants who have had to wait as long as this claimant has. I will hear counsel on any other orders that may need to be made if they are not agreed. I would expect the policy to be reviewed and reformulated the light of this judgment within approximately three months." Justice Blake
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2008/3064.html&query=Dawit+Tekle&method=all
Those awaiting decisions with in the Legacy backlog exercise and refused permission to work:
High Court demands that policy is reviewed with a view to giving permission to work as said policy can be an interference with right to respect for private life!
Dawit Tekle - and - Secretary of State for the Home Department
36 - When such a requirement is imposed on someone who cannot be removed from the United Kingdom and it is maintained against someone who has been physically resident in the United Kingdom since the fresh claim was made 4 _ years ago this restriction can thus be said to be an interference with right to respect for private life.
40 - However, I do not accept that that judgment and the policy considerations that underlie it can be applied directly to resolve the issues in the present dispute. There are the following material differences and considerations: - i) The EU Reception Directive now lays down minimum standards for support of asylum seekers including the right to access the labour market in the event of delay in considering their claims.
I have concluded that in the present combination of circumstances the continued restriction does amount to an interference with the right to respect to Article 8
47 - I conclude that denying a claimant an ability to seek employment for some prolonged and indefinite period is capable of being a detriment in circumstances where it can be said to be an interference with the right to respect for private life.
51/53 - 51. In my judgment, none of the reasons relied on for justification of this blanket policy suffice to do so, whether the refusal is viewed as an interference of a human right to respect for private life or as mitigating or merely as a detriment arising from delay. There are other ways to address abuse by ill deserved claims, and there comes a point when the delay is such that any general deterrent effect that may remain in the interests of immigration control is so weakened in comparison with the requirement to put the life on hold without any indication of when it will be started again, that the generic reliance on policy will not do.
52. The question of precisely when and it what circumstances the maintenance of the prohibition on employment ceases to be justifiable depends on a policy judgment that it is not open to the court to make. Absent any obligation that may be found to arise under Article 11 of the Reception Directive that is the subject of an appeal to the Court of Appeal, I accept that the Secretary of State is not bound to permit access to the labour market simply because 12 months have lapsed since a fresh claim has been submitted for decision.
Whether the prohibition should be relaxed after two, three or four years, whether a total period of continuous stay in the United Kingdom should be the basis of assessment, how far the practical ability to remove is a relevant criterion, whether claims outstanding after 12 months should be addressed by a sifting of potential merits, whether a specific date for decision could or should be given are all policy choices for the executive and not matters for this court in the first instance.
53. I further can give the claimant no individual relief on his personal application in the absence of anything further being known about his circumstances.
54.What I can and do declare for the reasons given in this judgment that the present policy is unlawfully overbroad and unjustifiably detrimental to claimants who have had to wait as long as this claimant has. I will hear counsel on any other orders that may need to be made if they are not agreed. I would expect the policy to be reviewed and reformulated the light of this judgment within approximately three months.
Permission to SSHD to appeal was granted but must be issued in the next ten days and expiated.
End of Bulletin:
Source for this Message:
NCADC
High Court
"What I can and do declare for the reasons given in this judgment that the present [Backlog] policy is unlawfully overbroad and unjustifiably detrimental to claimants who have had to wait as long as this claimant has. I will hear counsel on any other orders that may need to be made if they are not agreed. I would expect the policy to be reviewed and reformulated the light of this judgment within approximately three months." Justice Blake
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2008/3064.html&query=Dawit+Tekle&method=all Those awaiting decisions with in the Legacy backlog exercise and refused permission to work:
High Court demands that policy is reviewed with a view to giving permission to work as said policy can be an interference with right to respect for private life!
Dawit Tekle - and - Secretary of State for the Home Department
36 - When such a requirement is imposed on someone who cannot be removed from the United Kingdom and it is maintained against someone who has been physically resident in the United Kingdom since the fresh claim was made 4 _ years ago this restriction can thus be said to be an interference with right to respect for private life.
40 - However, I do not accept that that judgment and the policy considerations that underlie it can be applied directly to resolve the issues in the present dispute. There are the following material differences and considerations: - i) The EU Reception Directive now lays down minimum standards for support of asylum seekers including the right to access the labour market in the event of delay in considering their claims.
I have concluded that in the present combination of circumstances the continued restriction does amount to an interference with the right to respect to Article 8
47 - I conclude that denying a claimant an ability to seek employment for some prolonged and indefinite period is capable of being a detriment in circumstances where it can be said to be an interference with the right to respect for private life.
51/53 - 51. In my judgment, none of the reasons relied on for justification of this blanket policy suffice to do so, whether the refusal is viewed as an interference of a human right to respect for private life or as mitigating or merely as a detriment arising from delay. There are other ways to address abuse by ill deserved claims, and there comes a point when the delay is such that any general deterrent effect that may remain in the interests of immigration control is so weakened in comparison with the requirement to put the life on hold without any indication of when it will be started again, that the generic reliance on policy will not do.
52. The question of precisely when and it what circumstances the maintenance of the prohibition on employment ceases to be justifiable depends on a policy judgment that it is not open to the court to make. Absent any obligation that may be found to arise under Article 11 of the Reception Directive that is the subject of an appeal to the Court of Appeal, I accept that the Secretary of State is not bound to permit access to the labour market simply because 12 months have lapsed since a fresh claim has been submitted for decision.
Whether the prohibition should be relaxed after two, three or four years, whether a total period of continuous stay in the United Kingdom should be the basis of assessment, how far the practical ability to remove is a relevant criterion, whether claims outstanding after 12 months should be addressed by a sifting of potential merits, whether a specific date for decision could or should be given are all policy choices for the executive and not matters for this court in the first instance.
53. I further can give the claimant no individual relief on his personal application in the absence of anything further being known about his circumstances.
54.What I can and do declare for the reasons given in this judgment that the present policy is unlawfully overbroad and unjustifiably detrimental to claimants who have had to wait as long as this claimant has. I will hear counsel on any other orders that may need to be made if they are not agreed. I would expect the policy to be reviewed and reformulated the light of this judgment within approximately three months.
Permission to SSHD to appeal was granted but must be issued in the next ten days and expiated.
End of Bulletin:
Source for this Message:
NCADC
High Court
John O
e-mail:
JohnO@ncadc.org.uk
Homepage:
http://www.ncadc.org.uk
Additions
Better than a poke in the eye...but
12.12.2008 19:35
The case is only at first instance.
The Home Office could well appeal. Do people closer to things think this likely?
It creates no binding precedent which another court would have to follow (though they should take it into account).
The Home Office could well appeal. Do people closer to things think this likely?
It creates no binding precedent which another court would have to follow (though they should take it into account).
Stroppyoldgit
