Case No. UKUT-00299-(IAC)

32.The hearing before me lasted for a full day with detailed oral and written submissions. What follows here is necessarily only a summary of the submissions advanced by each party. 33.Mr Goodman sought to characterise the position concerning the access to the labour market enjoyed by asylum seekers and their dependents as being one whereby work is prohibited by condition, rather than granted by permission. The immigration bail regime contained in Schedule 10 to the 2016 Act creates a sui generis form of leave to remain, with no set conditions. Mr Goodman submitted that, since a positive decision is required by the Secretary of State to impose a work restriction as a condition of immigration bail, the default position is that whether an asylum seeker or a dependent enjoys the right to work is an issue that is “at large”, and not automatically subject to a restriction. In Mr Goodman’s submission, the distinction between the right to work being prohibited by a condition, rather than granted by permission, is a crucial feature of the post-2016 Act legal landscape with which the PTW guidance fails to engage. But for a positive decision of the Secretary of State to restrict their right to work, asylum seekers and their dependents are not subject to any restrictions on their underlying ability to work and enjoy the ability to do so without restriction. 34.Relying on R (A) v Secretary of State for the Home Department [2021] UKSC 37, Mr Goodman submitted that the PTW guidance was therefore apt to mislead decision makers. It failed to refer to the Secretary of State’s discretion. It was based on the erroneous premise that positive provision for dependents’ access to the labour market had to (and yet could not) be made under the rules, rather than such permission being restricted by a discretionary power to impose conditions as part of a grant of immigration bail. That explained, he submitted, why the express focus of the PTW guidance was on asylum seekers and not their dependents, as the guidance was based on the incorrect footing that permission to work was prohibited by condition rather than granted by permission.35.As to Article 14 ECHR, Mr Goodman submitted that dependents’ access to the labour market enjoyed “more than a tenuous connection” to Article 8(1) private life rights, to adopt the terminology of paragraph 104 of R (JCWI) v Secretary of State for the Home Department [2020] EWCA Civ 542. Even dependents of asylum seekers enjoy the ability to engage in voluntary work, thereby linking them to the labour market in any event. Further, in IJ (Kosovo), Bourne J held that the claimant asylum seeker’s ability to access the labour market was within the ambit of Article 14. Asylum seekers and their dependents are in an analogous situation for the purposes of Article 14 and, as conceded by the Secretary of State, treated differently on account of their “other status”. There was no justification for the difference between the applicant and his wife; both were qualified medical practitioners. Any justification the Secretary of State purported to rely on merely went to the perceived desirability of the underlying policy, not the justification of the difference in treatment (see the discussion of Dr Miv Elimelech’s evidence at paragraph 105, below). The decision was disproportionate.36.For the Secretary of State, Mr Malik KC relied on his skeleton argument dated 22 April 2022, which addresses the four questions identified by Bourne J in IJ (Kosovo) pertaining to discrimination under Article 14 ECHR. He submitted that, in contrast to the position concerning asylum seekers under the approach adopted by Bourne J in relation to the claimant in IJ (Kosovo), dependents have no underlying access to the labour market. The 1951 Refugee Convention and the Immigration Rules each recognise the qualitative distinction between primary applicants for asylum and dependents, and in contrast to primary claimants for asylum, their dependents do not have any treaty-based entitlement to access the labour market. He relied on the observations of Hickinbottom J (as he then was) in R (Rostami) v Secretary of State for the Home Department [2013] EWHC 1494 (Admin); [2014] Imm AR 56 at [111] that “we are simply not in Article 8 territory here” and submitted that that demonstrates the hurdle the applicant has to demonstrate to satisfy that his position as a dependent is even within the ‘ambit’ of Article 8. Mr Malik recognised that Rostami concerned the engagement of Article 8, rather than its ambit, but submitted that it nevertheless demonstrated the gulf between the applicant’s contentions, and the reality of the scope of the rights guaranteed by Article 8.37.Responding to Mr Goodman’s oral submissions concerning the impact of the 2016 Act immigration bail regime, Mr Malik submitted that they went beyond the restricted grant of permission by Bourne J. The applicant had not pleaded a general common law challenge to the PTW guidance by reference to the criteria in A and had not applied to renew the grounds upon which permission was refused on the papers. In any event, Mr Malik submitted that the applicant’s submissions misunderstood the character of a grant of immigration bail. The mere absence of a condition of immigration bail prohibiting work does not amount to a positive entitlement to do so.