Case No. UKUT-00299-(IAC)

The issues to be resolved38.My analysis will address the following issues:a.Whether the claim is academic;b.Scope of the challenge, by reference to the ground for judicial review upon which the applicant enjoys permission;c.Whether the Secretary of State’s “policy of treating main applicants and dependents differently as regards permission to work breaches Article 8 read with Article 14 ECHR”.Is this claim academic?39.Given the applicant now enjoys permission to work on account of his wife being recognised as a refugee, it could be said that he has already secured the relief he sought by bringing this application through other means. However, neither party sought to contend that the claim was “academic”, and both invited me to address the substantive arguments advanced in the proceedings. While there have been a number of cases addressing the position of asylum seekers’ permission to work, it does not appear that the issue insofar as it relates to dependents has been addressed on the basis challenged by the applicant in these proceedings, yet potentially large numbers of individuals are affected. The issues raised in this judicial review are, in principle, capable of affecting other such cases, and the resolution of the claim does not turn on facts unique to this applicant. I therefore exercise my discretion to hear and determine the claim on an exceptional basis, pursuant to the guidance in R (oao Zoolife International Limited) v Secretary of State for Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin) at paragraph 36. My analysis will refer to the applicant as though he does not enjoy the right to work, addressing the position he was in immediately before this post-permission development.Scope of the challenge: procedural rigour40.The applicant enjoys permission to make this application for judicial review on the discrete and limited basis set out in ground 4 at paragraphs 27 to 38 of the Statement of Facts and Grounds. Ground 4 as pleaded focusses on Articles 8 and 14 of the ECHR: whether a dependents’ right to work is within the ambit of Article 8; whether there is a difference in treatment between asylum seekers and their dependents in relation to accessing the labour market; and whether there is an objective and reasonable justification for the difference in treatment. Although at paragraphs 10 to 13 of the Statement of Facts and Grounds, in Part D entitled Legal Framework, Mr Halim, who settled the grounds, outlined the offence-creating provisions of the 1971 Act and the immigration bail regime now contained in the 2016 Act, nothing in ground 4 as pleaded draws on those provisions. Mr Goodman’s oral submissions before me went considerably beyond the limited scope of permission, as correctly identified by Mr Malik in his oral submissions.41.Although paragraph 28 of the Statement of Facts and Grounds quotes one aspect of the criteria enunciated in A for establishing whether a policy adopted by a public authority is lawful, paragraph 63 of A, that does not transform ground 4 into the territory of a broader, general common-law challenge of the sort encompassed by Mr Goodman’s broad submissions. The extract from paragraph 63 of A relied upon by paragraph 28 of ground 4 was as follows, in italics:“The test for whether a policy is unlawful is ‘whether the policy can be operated in a lawful way or whether it imposes requirements which mean that it can be seen at the outset that a material and identifiable number of cases will be dealt with in an unlawful way’.” 42.Ground 4’s reliance on the above extract was in the context of setting up the substantive challenge contained in that ground, namely whether the policy of treating main applicants and dependents differently in relation to granting permission to work breaches Article 8 ECHR read with Article 14 ECHR. The grounds placed no broader reliance on the remaining criteria in A for challenging a policy promulgated by a public authority. There is nothing in ground 4 challenging what Mr Goodman contends at paragraph 23 of his skeleton argument is the “misleading picture” said to be painted by the PTW guidance concerning its mandatory terms, and what he submits is the general absence of any prohibition in the Immigration Rules concerning the right to work. Nor does ground 4 challenge the PTW guidance on the basis that it directs decision makers to refuse permission to work applications from dependents “without the underpinning of any statutory authority or the imprimatur of Parliament or the Immigration Rules”, as also contended at paragraph 28 of Mr Goodman’s skeleton argument.43.There was no application to amend the grounds or advance new grounds. The focus of ground 4 as pleaded lies in a series of established authorities concerning the ambit of Convention rights relating to Articles 8 and 14 ECHR, and the application of those principles to the position of dependents in the context of an examination of the PTW guidance. 44.I note that by a purported “Reply” to the Summary Grounds of Defence dated 15 November 2021, sealed on 16 November 2021, the applicant sought to advance broader arguments concerning the correct construction of immigration bail, and some of the other submissions which strayed beyond the grounds. This document cannot have the effect of expanding the scope of the grounds upon which the applicant enjoys permission for at least two reasons. 45.First, it was received by the Upper Tribunal after Bourne J granted limited permission in relation to ground 4. The order granting permission was dated 11 November 2021, thereby pre-dating the Reply by several days. The reply was not considered by Bourne J, and save for these observations, it does not appear to have been the subject of any judicial consideration. 46.Secondly, there is no provision in the rules or practice direction for an applicant to reply to an Acknowledgement of Service. In R (oao Elizabeth Wingfield) v Canterbury City Council [2019] EWHC 1975 (Admin), Lang J said the following about a post-Acknowledgement of Service ‘reply’ that sought to introduce new grounds and submissions:“79.On 12 February 2019, the Claimant then filed a document entitled "C Reply to D and IP SGR's" which was not a reply, but instead raised new points and extensively challenged the adequacy of the Council's assessment of the cumulative environmental effects of the two Sites.80.In my judgment, it was impermissible for the Claimant to seek to add to her grounds in this manner. Under CPR Part 54, there is no provision for the Claimant to file a Reply, or any other response, to the Summary Grounds of Defence filed in a judicial review claim. If the Claimant wished to add to her grounds, she should have applied to amend her Statement of Facts and Grounds, and the Council and IP would have been given a chance to respond. However, even if she had done so, she would have had to seek an extension of time, as the 6 week time limit for challenging the decision on 22 November 2018 had expired by 12 February 2019.81.Since the Claimant was not entitled to file a Reply or any other response to the Summary Grounds of Defence, it was a matter for the discretion of the permission Judge whether to have any regard to the Claimant's document. It is apparent from the reasons given by Thornton J. that she only gave permission on the original Ground 1, as pleaded in the Statement of Facts and Grounds.”47.I adopt and apply the observations of Lang J to the present proceedings.48.I will therefore focus on those issues in my substantive analysis, below, and will not permit the applicant to expand the scope of these proceedings by stealth. My substantive analysis entails applying the guidance in A concerning testing legislation and policy against Convention rights. That some of the criteria in A are engaged is not a licence to introduce bases of claim that are not pleaded in the sole ground upon which the applicant enjoys permission, even if it may be said that some support may be found elsewhere within A for the putative additional grounds.49.I conclude this part of my judgment by observing that I have nevertheless engaged, in detail, with the full spectrum of Mr Goodman’s submissions in the preparation of this judgment. This required the expenditure of considerable judicial resources after the hearing on issues which ultimately were outside the permitted scope of the challenge. 50.If one reads the following extract of Hickinbottom LJ’s concurring judgment in Hickey v Secretary of State for Work and Pensions [2018] EWCA Civ 851 with appropriate modifications for judicial review proceedings heard in this tribunal, the observations at paragraph 73 are apposite:“Whilst it is important that this court – like all other courts – is not a slave to form, the Civil Procedure Rules set out procedural requirements, and not mere aspirations. They do so for good reason. The time of both parties and the court can be wasted if issues are not identified clearly and succinctly in the grounds of appeal, supported by relevant circumstances giving rise to the appeal and the appellant's arguments or submissions as set out in a skeleton argument. Without such proper focus, it is impossible for appeal courts to deal with their prodigious workloads efficiently and effectively.”51.Against that background, I turn to the substantive challenge.Ground 4: whether the Secretary of State’s policy of treating main applicants and dependents differently as regards permission to work breaches Article 8 read with Article 14 ECHR52.The essential question that lies at the heart of ground 4 is whether the PTW guidance’s omission of an express reference to the possibility of exercising discretion in relation to dependents, as opposed to primary claimants for asylum, would inevitably lead to or result in some decisions which were unlawful in that they involved unlawful discrimination contrary to Article 14 ECHR. 53.At paragraphs 76 to 78 of A, the Supreme Court outlined the approach to testing legislation and policy against ECHR rights. Drawing on R (oao Bibi) v Secretary of State for the Home Department [2015] 1 WLR 5055; [2016] Imm AR 270, which concerned a challenge to an immigration rule imposing an English language requirement and the corresponding guidance issued by the Secretary of State to her officials, the Supreme Court observed at paragraph 77 of A that, in Bibi:“As regards the rule, it was accepted that it might be applied in a way that was incompatible with the article 8 rights of a British partner in an individual case, but