Case No. UKUT-00094-(IAC)

: written submissions 5. On 18 December 2020, the Mr Justice Bourne handed down judgment in R (oao IJ (Kosovo)) v Secretary of State for the Home Department [2020] EWHC 3487 (Admin). Those proceedings considered the application of the Work Policy and paragraphs 360ff of the Immigration Rules in the context of a victim of trafficking, declaring that the Work Policy was unlawful in certain respects. 6. I directed that, should they wish to do so, the parties could make written submissions on the judgment by 4 January 2021. I am grateful to both parties for having done so in a timely manner. Thereafter, both parties sought to respond to the other’s submissions; the applicant on 5 January 2021, and the respondent, by way of a factual observation, on 7 January 2021. I had not directed or permitted additional submissions. The parties are reminded that the Tribunal would have issued further directions, or reconvened the hearing, in the event such steps were necessary. 7. I consider IJ (Kosovo) , and the submissions made in response to it, where relevant below. Factual background 8. The applicant, C6, is a citizen of Afghanistan. He arrived in this country as an unaccompanied minor in December 2003 and claimed asylum. The claim was refused, but he was granted discretionary leave to remain, and, in September 2011, he acquired British citizenship. 9. On 20 May 2014, the applicant was notified by the Secretary of State that she had decided to deprive him of his British citizenship on the grounds that to do so was conducive to the public good. That decision was upheld by SIAC on appeal on 22 December 2015, and an application for permission to appeal against the SIAC deprivation decision was finally refused on 10 November 2016. The applicant thus enjoyed British citizenship for a period exceeding 11 years. 10. The relevant findings of SIAC in the course of upholding the Secretary of State’s decision to deprive C6 of his British citizenship related to a return visit he made to Afghanistan in 2014, and the links he was assessed by the Security Service to have with an associate of the leader of a “small group of highly experienced Al Qaeda militants” operating in Afghanistan. SIAC found that it was highly probable that items of electronic equipment taken by the applicant to Afghanistan via Saudi Arabia were taken with the intention of providing assistance to the associate of the Al Qaeda operative with whom the applicant was found to be linked. Further, SIAC found that it was very highly probable that C6 was an Islamist extremist. 11. On 15 November 2016, the applicant made further submissions in support of a fresh claim for international protection under paragraph 353 of the Immigration Rules. The application was refused on 31 January 2018, and the respondent initially declined to treat the further submissions as a “fresh claim”, with the effect that the refusal decision did not attract a right of appeal. The decision was remade on 22 March 2018, in circumstances which again did not attract a right of appeal. On 29 October 2018, Mrs Justice Jefford granted permission to bring judicial review proceedings against the 22 March 2018 refusal decision, which led to the Secretary of State withdrawing the decision. The Secretary of State took a further decision to refuse the further submissions on 19 February 2020, this time treating them as a fresh claim, thereby attracting a right of appeal. The applicant’s appeal against that decision lies to SIAC. The parties have informed me that it is unlikely that that appeal will be heard by SIAC before October 2021. 12. Following his release from a period in immigration detention, the applicant has been subject to bail conditions imposed by SIAC on 15 December 2014 by Mr Justice Irwin, as he then was. Pursuant to the bail conditions, the liberty of the applicant is restricted on several fronts, to a significant extent. The conditions imposed a curfew requirement on the applicant, requiring him to be in his residence at all times save for 5 am to 8am, 12 noon to 5.30pm, and 7pm to 9pm. He is subject to monitoring conditions, restrictions as to who is permitted to visit him at his home during the curfew periods, restrictions on contact with persons during the non-curfew periods, electronic communication conditions which prevent him from accessing the internet, conditions restricting his access to bank accounts and financial services, conditions relating to his identity and travel documents, conditions restricting his ability to lead prayers at the mosque, and conditions requiring him only to use a single vehicle of a type approved by the Secretary of State. The applicant is also subject to employment conditions, addressed below. 13. Another feature of the applicant’s case, both when applying for variations to his bail conditions before SIAC, and in these proceedings, are his medical conditions. The applicant has been assessed by Dr Katona who, in a report dated 11 January 2018, diagnosed him with a “major depressive episode”. Dr Katona noted that the applicant had an episode of poor mental health in 2010, but that he remained mentally well until his detention under immigration powers in 2014. Dr Katona prepared a joint expert report with Professor Grubin, instructed by the respondent, dated 19 January 2018. The experts agree that the applicant experiences depression, although Dr Katona considers it to be moderate, while Professor Grubin considers it to be mild [6.b]. The applicant also claims to experience a range of debilitating physical symptoms, including muscle pain, joint pain, chest pain, and abdominal pain. Dr Katona and Professor Grubin agree that the applicant is telling the truth about the pain he claims to experience, and that there is a “strong and malign interaction” between his mental and physical conditions. The experts also agree that the applicant’s restrictive bail conditions have had an impact upon the applicant’s health, and that amending his conditions would improve, but not cure, his depression. Some of the bail conditions, such as those restricting the applicant’s attendance at the mosque, and restrictions on him leading prayers, “are particularly important factors in maintaining mental distress.” See [7.b.i.]. 14. Significantly for present purposes, on 11 February 2020, Mr C.M.G. Ockelton, Vice-President of the Upper Tribunal, sitting in SIAC, amended the applicant’s bail conditions. The bail conditions had always prohibited employment without the permission of the Secretary of State, but the revised bail order made more detailed provision for the process to be invoked by the applicant when seeking permission from the Secretary of State to engage in employment, and for SIAC to review any security concerns raised by the Secretary of State. In addition, SIAC partially relaxed the terms of the curfew requirement to which the applicant is subject, such that, it is contended by Ms Harrison, QC, undertaking some roles is now a real possibility for the applicant, subject, of course, to the permission of the Secretary of State under the bail conditions. The curfew requirement of the applicant’s bail now permits the applicant to leave his residence between 0500 to 1030, 1130 to 1700, and 1730 to 2300. The new curfew hours are largely consistent with the applicant’s proposed role as a delivery driver, and would require only a minor variation, submits Ms Harrison. 15. In the judgment that provided for the partial relaxation of bail conditions handed down on 9 January 2020 by the Vice President of the Upper Tribunal (“the SIAC bail judgment”), SIAC observed, at [58]: “If [C6] can spend time at the mosque and generally at large it is not easy to see why he should not be allowed to spend time in approved employment. It is very likely that being able to occupy his time usefully with paid work, or anything else, might well enable him to develop some self-esteem.” The November 2019 decision 16. On 4 November 2019, Duncan Lewis, the applicant’s then representatives, applied to the Secretary of State for permission for the applicant to work at a pizza and chicken outlet as a delivery driver. At that stage, they would have had sight of the draft, embargoed SIAC bail judgment, and so were, presumably, able to make the permission to work application with the approach of SIAC in mind without expressly referring to it: see paragraphs 13 and 14 of the statement of David Williams, a Grade 6 lawyer with the Government Legal Department, dated 17 September 2020. 17. The Secretary of State refused the permission to work application in a letter dated 14 November 2019 (“the November 2019 decision”). The decision contained in that letter is not within the scope of this challenge, however Mr Hays, on behalf of the Secretary of State, contends that the February 2020 decision should be read alongside the November 2019 decision, such that the latter’s reasoning may be incorporated into that of the former, or at least illuminate the February 2020 decision to some extent. Accordingly, it is necessary to examine the November 2019 decision, and the basis upon which the Secretary of State was invited to consider the application for permission to work on that occasion. 18. While I have not been provided with a copy of the application that led to the November 2019 decision, I have had the benefit of sight of the applicant’s skeleton argument dated 18 July 2019 from the SIAC proceedings, to which the Secretary of State referred in the course of that decision. The skeleton argument was drafted by Ms Harrison and Mr Bandegani, who represent the applicant in both the SIAC proceedings and this application. Paragraphs 43 to 47 focus on the applicant’s mental health and highlight the salient features of the reports of Dr Katona and Professor Grubin. At [44], Ms Harrison highlights Dr Katona’s conclusions that the applicant’s bail conditions, “in particular his inability to work and support himself, his restricted ability to socialise and to move freely”, were having a significant adverse impact on his continuing mental health. At [47], the skeleton argument highlighted the claimed positive mental health benefits the applicant would enjoy if the restrictions on him meeting and socialising, remaining in his residence under curfew conditions, and working, were lifted. 19. In the November 2019 decision, the Secretary of State highlighted the Work Policy, and referred to paragraph 360 of the Immigration Rules. The letter stated: “In accordance with the Home Office policy I can confirm that your client has permission to work, but that permission is restricted to roles on the Shortage Occupation List that is published by the Home Office. On that basis, your client’s request to take up employment at [the pizza and chicken outlet] is refused because this is not a role on the current published Shortage Occupation List. For the avoidance of doubt, if the role had been one included on that list, the Secretary of State would have gone on to consider whether the role was appropriate, having regard to the terms of your client’s bail conditions and the risk he poses to national security. As is common ground, the bail conditions were imposed by the Special Immigration Appeals Commission as being necessary on grounds that your client poses a risk to national security. The Secretary of State has given consideration as to whether to depart from her published policy and to permit, in principle, your client to work in roles that do not feature on the Shortage Occupation List (such as the role at the [pizza and chicken outlet]). In considering this question, the Secretary of State has not considered any risk to national security posed by your client. The Secretary of State does, however, take into account your client’s claim that being able to work will positively impact on his mental health (for example, paragraphs 43 – 47 of the skeleton argument dated 18 July 2019 filed with the Commission on behalf of your client). Even assuming your client’s mental health would improve if he takes paid employment, the Secretary of State does not consider it appropriate in this specific case to depart from her published policy. One of the purposes of the policy is to maintain a distinction between economic migration and asylum, which would be undermined if the request to undertake paid employment were acceded to. As for your client’s personal circumstances, even if your client is currently unable to obtain employment on the Shortage Occupation List, your client is free to undertake unpaid employment, and/or a suitable study course to enable him to obtain employment on the shortage occupation list (subject to the terms of his bail and subject to the Secretary of State being satisfied that the particular employment or study is compatible with national security).” There was no challenge to that decision. The February 2020 decision 20. On 4 February 2020, the applicant renewed his application to the respondent for permission to work at the pizza and chicken outlet. It is the ensuing refusal of that application that lies at the heart of these proceedings: the February 2020 decision. 21. In support of the application, the applicant provided a number of supporting materials; two witness statements from C6, a witness statement from the manager of the pizza and chicken outlet, and a letter from him confirming the job offer as a delivery driver. The application noted that the Secretary of State had, in the course of the November 2019 decision, considered whether to exercise discretion to depart from the Work Policy, but had declined to do so. 22. The application highlighted the fact that the proposed employer was aware of the complications arising from C6’s ongoing legal proceedings and that C6 had been deprived of his British citizenship on national security grounds. The employer was aware of the curfew conditions, and was able to offer shift work which corresponded, in broad terms, to the curfew hours. A minor amendment to the curfew would be required. The application highlighted the contents of C6’s witness statements, and the positive benefits he considered would attach to him being able to work. It underlined the financial constraints experienced by C6, and his indebtedness to friends and family, caused, it was said, by his inability to work. The application stressed how the curfew and other conditions prevented the applicant from being able to obtain training or experience of the sort necessary to obtain a skilled role on the SOL. He would not have the time or money to train as an engineer, doctor or nurse, the application said. The applicant had attempted to obtain other, non-SOL roles. Those attempts had been fruitless as it had proved practically impossible to find a role with sufficient flexibility which did not require access or exposure to the internet, and which would be compatible C6’s curfew conditions. C6’s inability to use the internet also hampered his ability to construct a CV, and to apply for roles using online processes, thereby placing the vast majority of even non-SOL roles out of his reach. Being able to take up the offered position “would be the only way to practically improve his situation”. 23. The application contended that the Secretary of State’s reliance on the need to maintain the distinction between economic migrants and asylum applications amounted to an unlawful fetter of her discretion, relying on established authorities including