Case No. UKUT-00094-(IAC)

[2012] 1 AC 245; [2011] UKSC 12 at [20], where His Lordship was addressing whether an unpublished blanket detention policy concerning foreign criminals was unlawful: “Mr Beloff QC [for the Secretary of State] rightly accepts as correct three propositions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 Secondly, if unpublished, it must not be inconsistent with any published policy.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