Case No. UKUT-00094-(IAC)

v Office of the Independent Adjudicator for Higher Education [2010] EWHC 1056 (Admin) as authority for the proposition that an absence of evidence of discretion being exercised is not evidence of a fettering of discretion. However, that is nothing to the point. In Budd , the review policy of the Office of the Independent Adjudicator encompassed the possibility of an oral hearing: see paragraph 6.2 of the policy, quoted at [23] of the judgment, but there had not been an oral hearing in the course of the complaint under consideration. The mere fact that an oral hearing had not been conducted was not evidence of discretion being fettered; the High Court noted at [90] that it was difficult to see why there should be any general need for an oral hearing, in the context of higher education disputes, and that dispute specifically. In contrast to paragraph 6.2 of the policy under consideration in Budd , the Work Policy contains no provision for the exercise of discretion at all . The Work Policy is rigid and inflexible, as currently drafted. Budd is not authority for a general proposition that a policy may legitimately preclude the exercise of discretion; the extract relied upon by Mr Hays simply demonstrates that in the case-specific procedural context of higher education grading disputes, it was not irrational or otherwise unlawful for the Office of the Independent Adjudicator to have declined to invoke the oral hearing procedure in the course of that dispute. 78. I am fortified in this approach by that of the High Court in IJ (Kosovo) , which found that the Work Policy makes no reference to the claimed inherent discretion, with the effect that it is “misleading”. While the context of the court’s analysis was the exercise of discretion for the purposes of ensuring compatibility with the United Kingdom’s international obligations under the Council of Europe Convention on Action against Human Trafficking, the absence of any references to discretion is equally likely to lead to a failure to consider the exercise of discretion in other cases, as with the present matter. See [75], per Bourne J: “the lack of any reference to the discretion obviously makes the guidance misleading.” 79. I find that the Work Policy is a blanket policy, admitting of no possibility of exceptions, and is unlawful to that extent, and make a declaration to that effect. 80. Ground 1 therefore succeeds. Ground 2 81. To the extent that Ground 2 seeks to attack the policy on the additional basis that it fails to articulate the criteria for the exercise of discretion, that submission is misconceived. In this respect, Gurung at [22] is apposite: “It is inherent in any policy which permits a departure from a general rule in exceptional circumstances that there may legitimately be scope for different views as to whether there are exceptional circumstances on the facts of a particular case. There is implicit in the exercise of any discretion the risk that different decision-makers can legitimately make different decisions on what appear to be indistinguishable facts. The range of reasonable (and therefore legitimate) responses may be wide. This is the inevitable consequence of giving a decision-maker a discretion. But that does not mean that a discretionary rule or policy is unlawful on grounds of uncertainty.” 82. In the present context, not only are the criteria for departing from the Work Policy matters of “high policy”, but articulating such criteria in the abstract is likely to be almost impossible. Indeed, as the February 2020 application pointed out, this applicant’s situation as a former British citizen who came to the United Kingdom as an unaccompanied child now facing removal to Afghanistan, pending the resolution of protection proceedings in SIAC is unique. Any attempt to articulate, in the abstract, possible grounds for exceptional circumstances in the Work Policy would have been highly unlikely to have foreseen such an unusual situation, and would have, therefore, not benefitted the applicant in the manner he seeks. 83. Ground 2 therefore fails. 84. Ground 3 is a post decision matter and was not pursued with any vigour before me. The Covid Pandemic had not taken hold at the time of the impugned decision. To the extent the applicant contends there was a general obligation on the Secretary of State to review her Work Policy in light of the Pandemic, that submission is misconceived. That delivery drivers performed a valuable role during the lockdown, and have done since, does not place the Secretary of State under an obligation proactively to review the Work Policy, disapplying the SOL requirement to the extent that it relates to delivery drivers. Delivery drivers are not on the SOL. The contents of the SOL are, as Mr Hays submits, a matter of “high policy”, and are chosen in light of independent advice provided to the Secretary of State by the Migration Advisory Committee. To the extent, in an individual case, an applicant invites the Secretary of State to exercise discretion in their favour, including on pandemic grounds, it is incumbent on the Secretary of State to consider that application. But it cannot be said, and nor did Ms Harrison realistically seek to pursue, that the Pandemic necessitated an exception to this aspect of the SOL requirement in the Work Policy. 85. I dismiss this application in relation to Ground 3. Grounds 5 and 6 – Articles 8 and 14 ECHR 86. In respect of Ground 5, the statement of facts and grounds contends that the Secretary of State’s decision in this case constitutes an arbitrary and/or disproportionate interference with the applicant’s right to private life under Article 8 of the European Convention on human rights. 87. In light of my decision concerning ground 4 in which I have found the February 2020 decision to be unlawful, it is not necessary to consider this ground in depth, other than to highlight the binding authority dispositively determining this ground against the applicant. In