Case No. UKUT-00094-(IAC)

) v Secretary of State for the Home Department [2013] 1 WLR 2546; [2013] Imm AR 651; [2013] EWCA Civ 8 at, for example, [16]. 57. Ms Harrison seeks to distinguish Rostami on the basis that it concerned paragraph 360 and following of the Immigration Rules, rather than the exercise of discretion outside the rules pursuant to policy. Wherever the Immigration Rules provide for a strict approach, it is nevertheless necessary to entertain the possibility of an exercise of discretion outside the rules, she submits. It is trite law that a policy cannot be a blanket policy admitting of no exceptions, and to the extent that the Work Policy may be so described, it is unlawful. Ms Harrison relies on the opinion of Lord Dyson JSC in R (oao) Lumba v Secretary of State for the Home Department and others [2012] 1 AC 245; [2011] UKSC 12 at [20], where His Lordship was addressing whether an unpublished blanket detention policy concerning foreign criminals was unlawful: “Mr Beloff QC [for the Secretary of State] rightly accepts as correct three propositions relating to a policy. First, it must not be a blanket policy admitting of no possibility of exceptions. Secondly, if unpublished, it must not be inconsistent with any published policy. Thirdly, it should be published if it will inform discretionary decisions in respect of which the potential object of those decisions has a right to make representations…” 58. Lord Dyson continued at [21]: “As regards the first of these propositions, it is a well-established principle of public law that a policy should not be so rigid as to amount to a fetter on the discretion of decision-makers…” 59. Ms Harrison submits that the Secretary of State’s reliance on Rostami is misplaced. This is not a near-miss case within the rules. The presenting issue is whether the policy concerning what takes place outside the rules unlawfully fails to countenance the possibility of the exercise of discretion, and in so failing to do so amounts to a policy that is so rigid as to amount to a fetter of discretion. 60. On one view, there is little difference between the applicant and the Secretary of State. The applicant contends that the Work Policy should admit of exceptions; the Secretary of State accepts that there may be a departure from the policy in exceptional cases. To the extent Ms Harrison relies on established public law principles going to preserving the residual possibility of the exercise of discretion, Mr Hays submits that such residual discretion exists. He points to the November 2019 decision in which the Secretary of State in terms considered whether to depart from the Work Policy. There is agreement on the principles. The dispute lies in the application of those principles to the facts. I return therefore to the terms of the policy itself. 61. The Work Policy states on each page that it was “Published for Home Office staff on 22 May 2019”. The policy is primarily intended as operational guidance or instructions to the respondent’s officials as to how to implement paragraphs 360 and following of the Immigration Rules, rather than, for example, a guide to asylum seekers on accessing the labour market. That the Work Policy’s target audience comprises the officials responsible for applying the relevant provisions of the rules is significant. If the policy admits of a discretion in the manner for which Mr Hays contends, one would expect to see references to the existence of such a discretion in the policy itself, or at least cross-references to the existence of such discretion elsewhere. 62. At page 4, the Work Policy provides: “Those who claim asylum in the UK are not normally allowed to work whilst their claim is being considered. They are instead provided with accommodation and support to meet their essential living needs if they would otherwise be destitute. The Home Office may grant permission to work in accordance with this policy to asylum seekers whose claim has been outstanding for more than 12 months through no fault of their own. Those who are allowed to work are restricted to jobs on the shortage occupation list published by the Home Office. Any permission to work granted will come to an end if their claim is refused and any appeals rights are exhausted because at that point they are expected to leave the UK. Those who are granted leave have unrestricted access to the labour market.” (Emphasis added) 63. At page 6, under the heading Relevant legislation , the relevant Immigration Rules are summarised. The summary reflects the “bright line” approach approved in Rostami . There is no mention of a discretion to depart from those rules. 64. On page 9, under the heading Considering permission to work applications , the policy states: “The following criteria are relevant and must be considered by caseworkers when deciding whether to grant permission to work…” (emphasis added) 65. There are a number of conditions precedent which an asylum seeker must fulfil in order to be granted permission to work, which are covered in the policy in the following terms. a. First, there must be an outstanding decision on protection grounds which has been outstanding for more than 12 months. See Outstanding UKVI decision on protection grounds , on page 9. b. Secondly, the delay must not be the fault of the asylum seeker. See the paragraph titled Delay, on page 9: “Permission to work must be refused where the delay was their fault.” On page 12, there is the sole express reference to the exercise of discretion in the policy, cited as an indicative example of a reason to refuse an application for permission to work. It provides: “Reasons for refusing permission to work might include the following… the delay is partly due to the claimant’s actions or inaction and it is not possible to exercise discretion in their favour …” c. There is provision requiring applications to be refused where there is an outstanding prosecution: see Criminality , page 10. d. Under the heading Dependants on page 10, the policy states that there is “no provision” in the Immigration Rules to grant permission to work to the dependents of asylum seekers, even where the claim has been outstanding for more than 12 months. e. Provision is made for asylum seekers with existing leave which confers permission to work in its own right. Such persons are not subject to labour market access restrictions while their existing leave remains extant. 66. Page 11, headed Granting or refusing applications , deals with the substantive decision to grant or refuse permission to work. Page 11 first deals with granting applications. A series of prescriptive instructions are set out. Caseworkers “must” use the specified template letter, and the following wording “must” be used “when updating Home Office records”: • permission to work request received in [name of team] on [date] • request granted on [date] • permission to work restricted to the Shortage Occupation List (SOL) • granted on basis of: [further submissions outstanding for more than 12 months / asylum claim outstanding for more than 12 months / other – give detail (delete as applicable)] • ASL.4264 sent/handed to the applicant/representative at [address] on [date] • name of caseworker • name of team • telephone number (including external code)” I have added emphasis to the words “other…” 67. On page 12, while still dealing with granting applications for permission to work, under the heading Shortage Occupation List (SOL) , the policy states: “If an asylum seeker or failed asylum seeker is granted permission to work (subject to the exceptions listed in the section on Applications from asylum seekers with existing leave), this must be restricted to jobs on the Shortage Occupation List (SOL), published by the Home Office.” (emphasis added) 68. Page 12 continues by dealing with Refusing permission to work . The potential reasons for refusal highlighted by the guidance all concern an asylum seeker’s eligibility under the Immigration Rules to be allowed to perform a role on the SOL. This part of the guidance does not deal with the SOL, for example indicating that permission to work should be refused on the grounds that the role sought was not on the SOL. 69. Against that background, I find that the terms of the policy itself do not countenance the possibility that there may be a departure from its requirement to restrict asylum seekers’ permission to work to the SOL, in any circumstances, for the following reasons: a. First, there is no reference in the policy, anywhere, to departing from the provisions of the rules, or otherwise granting permission outside the rules, whether in exceptional cases or otherwise. Specifically, there is no provision at all in the policy for consideration of an application for permission to work outside the rules. b. Secondly, the only point at which the Work Policy refers to the “normal” approach, that is in the context of asylum seekers “not normally” being allowed to work. That is a reference to the default position in the first twelve months of an asylum claim being considered; the exception to the “normal” position is the limited access to the labour market that asylum seekers once their claim has been outstanding for more than twelve months, and even then, only to SOL roles. There is no provision in the policy which provides that the SOL restrictions are the “normal” approach, such that in exceptional or other specified circumstances permission may be given on different bases. c. The only express reference to an exercise of discretion by the Secretary of State’s officials is in the context of delay which is the partial fault of an asylum seeker, where it is “not appropriate to exercise discretion in their favour” to categorise the delay as not being the fault of the applicant. This reference to discretion concerns whether an applicant is to be regarded as being at fault for their asylum claim not being considered; it goes only to the binary issue of whether an asylum seeker will be granted permission to work in accordance with the terms of the Work Policy, thereby entailing restriction to the SOL. There is no reference to the possibility of an exercise of discretion to permit consideration, in an appropriate case, of whether to grant permission to work in a non-SOL role. d. When giving instructions on granting access to the labour market, the guidance does admit of the possibility that access may be granted for reasons other than an asylum claim or further submissions being outstanding for more than 12 months or “other – give detail” reasons (see page 11, Granting permission to work ). This envisages the possibility that another reason may be given for restricted access to the labour market. Significantly, however, the mandatory wording of such a letter must still include the caveat that “permission to work restricted to the [SOL]”. This underlines the absence of any provision in the policy to consider, in an appropriate case, a possible departure from the SOL restriction condition. 70. It is clear that pursuant to the express terms of the policy, permission to work, if granted, will only ever be for SOL roles. There is simply no provision anywhere in the policy for the Secretary of State’s officials to consider exercising discretion to depart from that requirement in exceptional, or any, circumstances. 71. I accept that the substance of the policy is, as Mr Hays submits, a matter of “high policy”, and that it is not for this tribunal to seek to determine that policy for the Secretary of State. However, my role is not to determine what the contents of the policy should be, but to scrutinise it against well-established public law principles prohibiting the fettering of discretion through an inflexible and rigid policy. In any event, the Secretary of State’s submissions in these proceedings contend that there is a residual discretion inherent to the Work Policy, such that, in exceptional circumstances, there may be a departure from, for example, the SOL-restrictions in the policy. Accordingly, this tribunal is not straying into the forbidden territory of the “high policy” of asylum seekers’ access to the labour market by finding that the Secretary of State’s policy does not encompass the discretion which she contends is inherent to it. My findings in this regard merely contrast the reality of the contents of the Work Policy with the submissions made by Mr Hays in relation to it. See the following paragraphs of Mr Hays’ skeleton argument, with emphasis added: “…the Work Policy… gives effect to the Rules, unless it is appropriate to make an exemption .” (para 25) “…this is a case where, subject to exceptions , the relevant policy gives effect to an extant decision-making framework (the Rules) which is comprehensive and lawfully admits of no exception.” (para 36(ii)(a)) “…the present situation is a case of a lawful bright-line rule from which exceptions may be made . That is an unobjectionable state of affairs.” (para 36(ii)(c)) “…in this case the ‘rule’ is defined by the Rules, which may be departed from in an exceptional case . This is unobjectionable.” (para 36(ii)(d)) “A policy from which the decision-maker may exceptionally depart need not spell out what those exceptional circumstances would be… That is simply a product of the decision maker having the power to depart from a policy in an exceptional case .” (para 36(iii)) 72. Accordingly, it is appropriate for this tribunal to examine the terms of the policy for wording of the sort that would be expected in the event that such discretion was to be found within it, and highlight omissions or deficiencies when the policy is scrutinised against Mr Hays’ realistic acceptance that there must be some form of ability to depart from it in exceptional circumstances. For the reasons set out above, no such discretion is clear from the terms of the policy. 73. Mr Hays submitted that if such wording was not present in the policy, the policy should nevertheless be read and scrutinised as though some discretion were inherent to it. To that end, Mr Hays relied on R (oao Chaudhry) v DPP [2016] EWHC 2447 (Admin) as authority for the proposition that the ability of a decision maker to depart from the terms of a policy need not be express. Chaudhry concerned the process established by the Crown Prosecution Service (“the CPS”) to review decisions not to prosecute certain suspects, pursuant to its Victims’ Right to Review (“VRR”) guidance. The CPS had declined to prosecute an individual said by the claimant to have been involved in the abduction of her children, on the grounds that there was no realistic prospect of conviction. The suspect was the sister of the father of the abducted children, who had been convicted of child abduction in this jurisdiction and sentenced to seven years’ imprisonment. The CPS had initially declined to reconsider the decision not to prosecute the sister, citing a provision in the VRR which excluded from the scope of the policy cases where charges were brought against some, but not all possible, suspects. The CPS later reviewed the decision not to prosecute the sister, notwithstanding the terms of the VRR. The review upheld the decision not to prosecute. One of the grounds for judicial review was that the guidance unlawfully prevented the CPS from reviewing a decision not to prosecute a suspect of its own motion, thereby unlawfully fettering its own discretion, presenting an absolute bar to reconsidering decisions to prosecute such as those at play in those proceedings. The Divisional Court dismissed the application, finding that the CPS enjoyed the ability to review its own prosecutorial decisions. Little turns on this authority, which sits in the very specific context of prosecutorial independence, the operational ability of prosecutors to review their own previous decisions, and the margin of discretion enjoyed by prosecutors when taking such decisions. See, for example, [16], [28], [36], [38], and [43]. The case turned on its context and facts, and is not authority for the general proposition for which Mr Hays places reliance upon it. 74. Mr Hays also sought to resist Ms Harrison’s submissions that exceptionality must be articulated by the terms of the policy through relying on Gurung . The policy with which the Court of Appeal was concerned in Gurung expressly admitted of the possibility that there may be exceptional cases meriting a departure from the policy. The discretion inherent to the policy under consideration in Gurung throws the approach adopted by the Work Policy into sharp relief. In Gurung , an issue was whether the Secretary of State was obliged to set out, on the face of the policy or in similar guidance, the criteria to be taken into account when considering whether there were exceptional circumstances, meriting a departure from the Immigration Directorate Instructions concerning Gurkha family reunion cases, in light of the well-documented “historical injustice” experienced by Gurkhas. The policy stated: “Children over the age of 18 and other dependant relatives will