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Right to work

Right to work

Right to workThere are two recent important developments on this front.

The first is that the Home Office is appealing the ZO Somalia case on right to work for those who have made fresh asylum claims and have not received a decision within one year of their application. This may well be of interest to those stuck in the Legacy backlog awaiting decisions. Additionally, the Home Office are saying that even if they ultimately lose on the legal point, there is no obligation in European law to grant permission to work, only to decide the terms of access to the labour market. There will be no decisions made on right to work applications until the appeal is decided or the Home Office become, in their own language, ARE (Appeal Rights Exhausted).

The other important development applies only to Turks but is very important for them. In the new case of Sonmez v SSHD [2009] EWCA Civ 582 the Court of Appeal eventually concludes that prior breaches of immigration law do form an adequate basis for refusal of a permission to work application under the Ankara Agreement. The case concerns those who breached immigration law to establish employment or self employment and then have sought to rely on the Ankara Agreement to continue that employment or self employment. It is a split judgment, with Sedley LJ in the minority and Dyson and Maurince Kay LLJ in the majority. All agreed that the common law principle of ex turpi causa non oritur actio (‘from a dishonorable cause an action does not arise’) was not by itself reason to refuse the applications. This was the basis of the Tribunal’s earlier decision. The Tribunal had raised the point of their own motion and not referred themselves to relevant authorities more or less confining that principle to contract or tort. The majority, however, found that previous breach of immigration laws to establish employment or self employment did amount to an abuse and, relying on the earlier cases of Tum and Dari, Kondova and LF (Turkey) this was sufficient reason in European Community law to deny the benefits of the Ankara Agreement.

As with ZO Somalia, this won’t be the end of the matter. Both issues will probably end up in the House of Lords and then the ECJ. That could be several years down the line, though.

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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