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Damages denied for deprivation of permission to work

Damages denied for deprivation of permission to work

Mr Justice Collins has rejected a claim for damages by an asylum seeker who was kept waiting for over a year for a decision on his claim and whose application for permission to work was not decided by the Home Office. The case is R (on the application of Negassi) v Secretary of State for the Home Department [2011] EWHC 386 (Admin) and it follows on from the earlier Supreme Court decision in R (on the application of ZO (Somalia) ) v Secretary of State for the Home Department [2010] UKSC 36. It seems likely that an appeal will be attempted.

The ratio seems to come at paragraph 25:

In my view, this is a borderline case. I recognise the force of Mr Wilson’s submissions based on the judgment of the Supreme Court. But the hurdle to be overcome by a claimant who seeks damages is a high one. This was an error of construction, not a deliberate intentional breach of the obligations imposed by the Reception Directive. While such an error is capable of being sufficiently serious to found a claim for damages, a court should be slow to support such a claim. The test set out in the authorities and in particular in the BT case is deliberately put at a high level. In all the circumstances, I am persuaded that Mr Eicke’s submissions prevail and that, despite the Supreme Court’s judgment, the breach was not manifestly and gravely unlawful.

A second reason is given in the alternative which seems a little more suspect: that although there were no real restrictions on the type of work that might be undertaken if permission had been granted at that time, if the Home Office had known what the law really was they would have introduced massive restrictions (which indeed they subsequently have) and therefore the claimant would probably not have been given permission to work in any event. That is all a tad hypothetical, some might think.

There is no consideration of the lawfulness of the above mentioned massive restrictions on employment for asylum seeker kept waiting over a year, so that battle will need to be fought another day.

Free Movement
The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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