Case No. UKUT-00094-(IAC)

) v Secretary of State for the Home Department [2013] EWHC 1494 (Admin); [2014] Imm AR 56, Mr Justice Hickinbottom, as he then was, rejected a multi-faceted challenge to the lawfulness of paragraph 360 and following of the rules. The court held that Article 15(1) of the Charter of Fundamental Rights of the European Union did not confer a general right to work upon anyone in the territories of the EU at a particular time [55]. The court held at [81] that paragraphs 360A(i) and 360D(i) of the rules, restricting asylum seekers to roles on the SOL, had as their main public policy objective the aim of ensuring that asylum seekers are granted access to the UK labour market without adversely impacting on UK nationals and other EU citizens, as access is only granted to jobs identified as those which the resident labour market would be unable to fill. That, held the court, was a well-established legitimate labour market policy [83]. The court gave fourteen reasons for finding that the policy as contained in the Immigration Rules was proportionate: see [92], and found that it did not engage Article 8 of the ECHR. Rostami features significantly in the parties’ submissions, and I will return to its reasoning later. Grounds for judicial review 34. In the course of her unrestricted grant of permission, Upper Tribunal Judge Owens gave the applicant permission to rely on all grounds of judicial review: a. Ground 1: the Work Policy admits no exceptions, or provides no in-built discretion, and is so rigid as to amount to an impermissible and unlawful fetter on the Secretary of State’s discretion. b. Ground 2: the Work Policy is unlawful, and/or operates as an unlawful fetter on the Secretary of State’s discretion. The policy makes no reference to the residual discretion outside the relevant paragraphs of the immigration rules, and refers to no criteria by which discretion may be exercised exceptionally, within the policy, or outside the rules. It fails to identify any factors relevant to the possible exercise of discretion. It is a blanket policy amounting to an unlawful fetter of discretion. c. Ground 3: the respondent failed to review her policy in light of Covid-19. This ground is based upon the Government’s post-decision designation of delivery drivers as “key workers” during the Covid-19 pandemic (“the pandemic”). d. Ground 4: the respondent failed to exercise discretion in the applicant’s case by reference to all relevant facts, and/or to provide reasons. e. Ground 5: the decision of the Secretary of State constitutes an arbitrary and/or disproportionate interference with the applicant’s article 8 ECHR rights to family life. f. Ground 6: the decision of the Secretary of State entailed unjustified discrimination against the applicant contrary to Article 14 of the ECHR, when read with Article 8 ECHR. Submissions and discussion 35. I will commence my analysis by considering ground 4, which contends that the respondent failed to exercise discretion by reference to all relevant facts and circumstances, as the facts and submissions that were before the Secretary of State set the context for my consideration of the remaining grounds for judicial review. 36. Well established public law principles require decision makers to take into account all relevant considerations and to disregard irrelevant considerations. 37. In the course of his application for permission to work dated 4 February 2020, the applicant set out a number of factors which he contended militated in favour of a departure from the policy, in light of what that application submitted were the unique circumstances of his situation. While the Secretary of State had, in the November 2019 decision, considered issues relating to the applicant’s physical and mental health in light of the conclusions of Dr Katona’s report, and the joint report with Professor Grubin, there were a range of additional matters which the 4 February application drew to the attention of the Secretary of State which had not previously been relied upon. Those factors included: a. C6 had accrued serious debts to his friends, which he had incurred as a result of his inability to work [13], [29]. b. C6 had no qualifications or experience that would enable him to apply for a role on the SOL. He had neither the time nor the money to train in order to apply for such roles [16]. c. The unique circumstances of C6’s bail conditions meant that many roles, even those not on the SOL, were out of reach [17]. Most roles were the subject of an online application procedure, a process which the applicant’s bail conditions prohibited him from undertaking [18]. As for the role itself, it would need to be extremely flexible, and not require access to the internet. The proposed delivery driver role “would be the only way to practically improve his situation” [19]. d. C6 was in a unique situation; as a former British citizen who had resided lawfully for over 11 years, with the right to work at those times, his situation could be distinguished from that of an economic migrant. Moreover, his asylum claim was predicated on events surrounding the deprivation of his citizenship. See [29] and [30]. e. Given the Secretary of State had accepted that his asylum claim amounted to a fresh claim within the meaning of paragraph 353, she had accepted that his claim was arguable, with the effect that “he cannot also be considered an economic migrant and he is a genuine asylum seeker” [32]. f. C6’s asylum claim had lasted for 11 years, which was significantly longer than a normal asylum claim. The Secretary of State had repeatedly delayed the further submissions decision, having initially undertaken to take it by 15 November 2019, later delaying until 31 January 2020 and subsequently 17 February 2020. At the time of the application’s submission, it was not clear when the decision would be taken. See [33]. Were the Secretary of State to rely on national security considerations, the refusal would have to be dealt with in SIAC, taking further time [34]. g. The overall circumstances of C6 had not been considered in the course of the November 2019 decision [35]. h. The application concluded by stating that, by her refusal to exercise discretion in favour of C6, the Secretary of State was “in effect prohibiting him from employment” [36]. The SIAC bail judgment did not consider the prospect of C6 obtaining work to be fanciful, and a discussion had taken place at two SIAC hearings about potential roles for C6. i. C6’s highly restrictive bail conditions meant that his choice of roles would be “severely hampered”, in particular the restrictions on his time and use of the internet. j. The Secretary of State’s reliance on the terms of the policy, and her refusal to depart from it, amounted to an unlawful fetter on her discretion, and reliance upon arbitrary and irrational reasoning. 38. I find that the February 2020 decision did not purport to consider whether it was appropriate to exercise discretion. Still less did it consider or otherwise engage with any of the above factors advanced on behalf of the applicant. Indeed, all the decision did was to restate, and apply, the Work Policy, absent any consideration of the applicant’s submissions for discretion to be exercised in his favour. The factors set out above were plainly relevant considerations which the February 2020 decision failed to take into account, at all. 39. Strikingly, the February 2020 decision contended that the applicant did not even have permission to engage in a role on the SOL in accordance with the Work Policy. The applicant’s further submissions had not been outstanding for more than 12 months, the decision stated, with the effect that the emboldened text stating that the applicant “does not qualify for permission to work in the UK” was simply incorrect. As was common ground before me, that was an error. 40. I accept that the Secretary of State had taken a decision on the applicant’s protection claim in parallel to taking the February 2020 decision, and so to that extent, the decision did engage with one of the factors raised by the applicant (see paragraph f above). But the context in which the decision referred to the protection decision having being taken was to underline, erroneously, the applicant’s ineligibility for permission to work under the Work Policy. The letter did not deal with the substantive underlying concern of that aspect of the application, namely the length of time for which the applicant had been waiting for his protection claim to be resolved, and in all likelihood would have to continue waiting. 41. When the letter proceeded to analyse the applicant’s request to work as a delivery driver in any event, it simply appealed to the terms of the Work Policy, and concluded that, because the role of a delivery driver does not feature on the SOL, he would not be entitled to assume such a role. 42. Rather than setting out a considered response to the reasons advanced by the applicant in favour of a departure from the Work Policy, the February 2020 decision singularly failed to engage with any of those factors. The decision was based on the flawed premise that the applicant was not even eligible for permission to work in a role on the SOL, which highlights and underlines the deficiencies in the decision. The decision misunderstands the nature of the application for permission to work and the applicant’s circumstances, incorrectly treating the application as though it were made in the initial 12 month period during which asylum seekers do not enjoy the possibility of accessing the labour market at all. Against that background, the February 2020 decision’s consideration of the proposed role at the pizza and chicken outlet has the appearance of being added simply as a makeweight. 43. Mr Hays sought to cure these evident defects in the February 2020 decision on the basis that it should be read alongside the November 2019 decision. I accept that, to an extent, the course of correspondence with the Secretary of State can be read as a whole, to in order to ascertain the Secretary of State’s overall approach. 44. In this respect, the Secretary of State’s discussion in the November 2019 decision of whether it would be appropriate to exercise discretion in the applicant’s favour does demonstrate that, in principle, the Secretary of State is aware of her ability to consider departing from the terms of the policy, and did undertake such consideration on that occasion. That letter states: “…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 [SOL] (such as the role at [the chicken and pizza outlet]). In considering this question, the Secretary of State has not considered any risk to national security posed by your client….” 45. While the Secretary of State’s decision on that application illuminates the fact that she accepts she is able, in principle, to consider whether to depart from the terms of the Work Policy, nothing in the November 2019 decision is capable of curing the significant defects in the February 2020 decision. First, the February 2020 decision did not seek to incorporate, or otherwise rely upon, the reasoning adopted by the November 2019 decision. Merely referring to the earlier decision is not capable of incorporating its reasoning. Secondly, had the February 2020 decision incorporated the earlier decision’s reasoning in the wholesale terms for which Mr Hays contends it should be read as having been incorporated, that would have led to an irrational conclusion. The applicant’s February 2020 permission to work application post-dated the application he made for permission to work in November 2019, and featured a range of considerations which the Secretary of State, on the materials before me, had not been invited to consider as part of the earlier application. By definition, even had the Secretary of State sought expressly to rely on her November 2019 reasoning, those reasons would have been incapable of addressing the quite separate matters she was invited to consider by the applicant in the February 2020 application. 46. It follows, therefore, that the import of the November 2019 decision, taken at its highest, is that it provides a single example of the Secretary of State demonstrating that she has considered whether to depart from the Work Policy. It cannot cure the defects in the February 2020 decision. 47. The approach of the February 2020 decision to the exercise of discretion was in stark contrast to the approach of the Secretary of State to the application for permission to work in IJ (Kosovo) . While the applicant in those proceedings invited the Secretary of State to exercise discretion on different grounds, it is clear that the Secretary of State nevertheless considered whether to exercise discretion: see [52] and [57]. It is nothing to the point, as submitted by Mr Hays, that IJ (Kosovo) concerned the unique position of a victim of trafficking; the judgment provides an example of the Secretary of State having conducted the discretionary exercise she wholly failed to conduct in these proceedings, and to that extent it underlines the findings outlined above. 48. Given the discretionary nature of the judicial review jurisdiction, ordinarily a court or tribunal would consider whether, but for the defect identified, the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred. Section 31(2A) of the Senior Courts Act 1981 codifies this well-known principle of judicial review. 49. I cannot say that it would be “highly likely” that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred, pursuant to section 31(2A). There are two reasons for this. 50. First, the applicant has highlighted a series of considerations which set his application for permission to work apart from the many asylum seekers who are subject to the Work Policy. The policy objectives of the Work Policy are readily distinguishable from an individual in the position of this claimant, given his position as a former British citizen now seeking to renew his protection claim as a third country national. That is not to say that that is capable of being a determinative factor, given the High Court has underlined and endorsed the “bright line” approach and consequences of the Work Policy in Rostami . But it is to say that this is, on any view, an application for permission to work which features few parallels with the situation of the vast majority of asylum seekers. Very few asylum seekers, for example, will have had the benefit of the Vice President of the Upper Tribunal indicating the positive benefits of potential employment in their circumstances, as he did in the SIAC bail judgment. While the Secretary of State may well have sound reasons for maintaining her position in the course of a properly reasoned future decision (I do not speculate), I cannot say that it is “highly likely” that the outcome would not be different for the applicant, which is the threshold codified by Parliament under section 31(2A) of the Senior Courts Act 1981. 51. Secondly, the Secretary of State has not openly considered the potential national security considerations of the applicant’s proposed role. She indicated her likely phased approach to the national security issue in the November 2019 decision, in which she stated that, had the applicant proposed a role on the SOL, she would have gone on to consider whether any national security considerations would arise. Again, I cannot pre-empt that process, still less conclude that it would be “highly likely” that permission to work would be refused, in the absence of any reasoning from the Secretary of State on this issue. 52. For these reasons, I grant this application for judicial review in relation to the February 2020 decision insofar as it relies on Ground 4. Grounds 1, 2 and 3 53. This application for judicial review is not confined to the February 2020 decision. The applicant seeks to challenge the terms of the Work Policy itself. 54. I shall take Grounds 1 and 2 together. In essence, they contend that the Work Policy features no possibility of the exercise of discretion, fails to acknowledge the existence of the Secretary of State’s broad discretion in the exercise of her powers under the Immigration Act 1971, and fails to articulate the criteria pursuant to which a departure from the otherwise rigid policy should be considered. As such, contends Ms Harrison, the policy amounts to an unlawful fetter of the Secretary of State’s discretion. 55. Mr Hays submits that Rostami provides a complete answer to these submissions, and that Ms Harrison’s submissions seek to deprive the authority of any effect. In Rostami , Hickinbottom J held that the imposition of the conditions on asylum seekers’ access to the labour market by paragraphs 360 and following of the Immigration Rules was lawful and proportionate, for detailed reasons which I need not repeat here: see, for example, [92]. To the extent that the Work Policy provides no scope for discretion, there can be no complaint, submits Mr Hays. So much is clear from [94] of Rostami , where the High Court addressed the submission that paragraph 360 of the rules was unlawful because it made no provision for a decision maker to exercise discretion to allow an asylum seeker greater access to the rules, on the basis of his or her own individual circumstances. It was a bright line rule from which no departure was envisaged or permitted. At [95], Hickinbottom J recalled that there is no “near miss” principle concerning the Immigration Rules: “in short, a rule is a rule”, he held at [96]. Accordingly, Mr Hays submits that the Work Policy is a lawful, bright-line policy, from which a departure may be made in an exceptional case. In addition, the issue of asylum seekers’ access to the labour market is a matter of “high policy”. The Secretary of State is best placed to decide who is able to access the labour market, not a court or tribunal. The issue of the weight to be ascribed to the competing factors is necessarily a matter for the Secretary of State. 56. In any event, Mr Hays accepted that the Secretary of State does enjoy a residual discretion in the exercise of her statutory powers under section 1of the 1971 Act, and that she was prepared to depart from the position enunciated in her policy in exceptional circumstances. Further, there was no need for the policy to articulate what such exceptional circumstances were likely to be; it was sufficient that the possibility existed for discretion to be exercised in an appropriate case. Mr Hays relied on R (