Case No. UKUT-00299-(IAC)

15.Section 1(2) of the Immigration Act 1971 (“the 1971 Act”) provides that those without the right of abode in the United Kingdom may only “live, work and settle” in the United Kingdom “by permission”:“Those not having [the right of abode] may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act.”16.Section 3(2) of the 1971 Act makes provision for the Secretary of State concerning the creation of immigration rules, and a process for parliamentary oversight. It provides, where relevant:“(2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances…” (emphasis added)17.The Secretary of State enjoys a residual discretion to grant leave, or vary conditions of leave outside the Immigration Rules or applicable guidance.18.Section 24B(1) and (2) of the 1971 Act makes it a criminal offence for a person to work if they do so at a time when they are disqualified from doing so by reason of their immigration status, and knew, or had reasonable cause to know, that they were so prohibited:“(1) A person (‘P’) who is subject to immigration control commits an offence if—(a) P works at a time when P is disqualified from working by reason of P's immigration status, and(b) at that time P knows or has reasonable cause to believe that P is disqualified from working by reason of P's immigration status.(2) For the purposes of subsection (1) a person is disqualified from working by reason of the person's immigration status if—(a) the person has not been granted leave to enter or remain in the United Kingdom, or(b) the person's leave to enter or remain in the United Kingdom—(i) is invalid,(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or(iii) is subject to a condition preventing the person from doing work of that kind.”19.Section 24B(9) of the 1971 Act makes provision to treat a person on “immigration bail” within the meaning of Part 1 of Schedule 10 to the Immigration Act 2016 (“the 2016 Act”) as if the person had been granted leave to enter the UK, but provides that any condition as to the person’s ability to work in the UK to which the person’s immigration bail is subject, is to be treated as though it were a condition of the person’s leave.20.Paragraph 2(1) of Schedule 10 to the 2016 Act provides that if immigration bail is granted to a person, it must be granted subject to one or more of the conditions there listed. Sub-paragraph (b) provides that such a condition may restrict their work, occupation or studies in the United Kingdom.Permission to work for asylum seekers21.Paragraphs 360 and following in Part 11B of the Immigration Rules makes provision for asylum seekers to be granted permission to work:“360An asylum applicant may apply to the Secretary of State for permission to take up employment if a decision at first instance has not been taken on the applicant’s asylum application within one year of the date on which it was recorded. The Secretary of State shall only consider such an application if, in the Secretary of State’s opinion, any delay in reaching a decision at first instance cannot be attributed to the applicant.360A If permission to take up employment is granted under paragraph 360, that permission will be subject to the following restrictions:(i) employment may only be taken up in a post which is, at the time an offer of employment is accepted, included on the list of shortage occupations published by the United Kingdom Border Agency (as that list is amended from time to time);(ii) no work in a self-employed capacity; and(iii) no engagement in setting up a business.” 22.Paragraphs 360B to 360E make further provision concerning the length of time for which such permission will be valid (“this shall only be until such time as his asylum application has been finally determined”), and the corresponding position of those who make further submissions under paragraph 353 of the Immigration Rules. Nothing in paragraphs 360 to 360E addresses the position of, or otherwise makes provision for, dependents of asylum seekers.23.I summarised the relevant provisions of the rules in the following terms in R (on the application of C6) v Secretary of State for the Home Department (asylum seekers' permission to work) [2021] UKUT 94 (IAC) at [31]:“Put simply, asylum seekers (a term I shall use in this context to include those awaiting a decision on further submissions under paragraph 353) may only access the labour market when their claim has been under consideration for at least 12 months, provided the delay was not their fault, and once granted, permission to work is restricted to roles on the SOL. The SOL is maintained by the Home Office, on the advice of the Migration Advisory Committee, an independent, non-departmental public body that advises the Secretary of State on migration issues.”24.“SOL” means the “shortage occupation list”, which was described by Bourne J in R (oao IJ (Kosovo)) v Secretary of State for the Home Department [2020] EWHC 3487 (Admin) in these terms, at [31]:“The SOL is a list of skilled jobs, many very specialised. It includes various categories of doctors, nurses and therapists, teachers in a few specified subjects, IT professionals, social workers, engineers, chefs with a certain level of expertise and artists of a number of specified kinds. The Migration Advisory Committee estimates that it covers about 1% of UK employment.”The PTW guidance25.Under the heading About this guidance, the PTW guidance states at page 4:“This guidance tells you about handling requests for permission to work from