The Supreme Court is to hear over two days on 17-18 May 2010 the first case to reach the highest domestic court raising a question of the proper interpretation of a provision of the EU Reception Directive (2003/9/EC).

The hearing before Lords Hope, Walker, Brown, Kerr and Sir John Dyson SCJ will be of interest both in respect of the approach taken to construction of provisions of an EU Directive, and also due to the significant impact it will have for a large number of individual asylum seekers who are trapped in a legal limbo, often for years, waiting for determinations of their fresh claims and without the right to work.

The single issue raised by the appeal is whether a person whose asylum claim has been finally determined against him and who makes a subsequent claim for asylum in the same country, comes within the ambit of the Reception Directive and thus is able to enjoy the benefits conferred by Article 11(2) of that Directive which effectively enables him to work.

The Court of Appeal (Laws, Keene and Hooper LJJ, [2009] EWCA Civ 442) unanimously found in favour of the appellants in a clear and succinct judgment given by Hooper LJ.  The Secretary of State, not content with the finding, obtained permission to appeal from the Supreme Court.  The appeal certainly raises an issue ripe for a reference to the (now) CJEU.  However, under the provisions in force at the date on which the case was argued before the Court of Appeal, only the final court of instance could make such a reference as noted by the Court at [6] of the judgment.  The benefit of having such a reference is one of ensuring consistency across EU member states in the application of EU law.  This is particularly the case given that the Court noted at [5] that there was no jurisprudence of the ECJ on the issue and they had not been made aware of how, if at all, other Member States had dealt with the issue.  That said, it may be that other EU states, in so far as they have provisions in domestic law which affect the interpretation of Article 11(2) of the Directive will be watching the Supreme Court for its ruling in this case.

Article 11(2) of the Directive provides:

“If a decision at first instance has not been taken within one year of the presentation of an application for asylum and this delay cannot be attributed to the application, Member States shall decide the conditions for granting access to the labour market for the applicant.”

The Secretary of State contended that the Reception Directive did not apply to individuals making subsequent applications for asylum, whereas the appellants successfully argued the converse.

The appellants in the three linked cases were all subject to huge delays in determining their subsequent claims for refugee protection – almost four years in the case of ZO and MM, five years in respect of DT.  They all applied for permission to work and were refused. All commenced proceedings by way of judicial review challenging the delay in decision making and refusal.

In coming to his well formulated conclusion, Hooper LJ relied on the following points:

1.   There was nothing in the wording of the Reception Directive to exclude subsequent asylum applications.

2.   The abuse argument put forward by the Secretary of State should be rejected. It would be wrong to interpret the Directive restrictively because of administrative problems which the country faces dealing with backlog.

3.   It was clear that similar wording in the Procedures Directive (2005/85/EC) applied to subsequent applications and it would be odd if the definition in the Reception Directive were to be given a different meaning.

Given the lack of existing case law in this area, the opinion of the Supreme Court will create an important precedent and one of fundamental practical significance for individuals.