Permission to work guidance for asylum seekers is unlawful

R (IJ (Kosovo)) v Secretary of State for the Home Department [2020] EWHC 3487 (Admin) (18 December 2020) 

The claimant, “IJ”, was a citizen of Kosovo who was determined to be a refugee and a victim of trafficking. During the time her asylum claim was still being considered, her claim arose, and permission was granted, by a condition imposed on her under paragraph 360A of the Immigration Rules, whereby she was not permitted to take up employment in a position that fell outside the Shortage Occupation List (SOL). The SSHD refused to allow IJ to take up employment in a post as a cleaner that would fall outside the SOL and refused to exercise her residual discretion outside the Immigration Rules to permit this. Aggrieved by this, IJ challenged the lawfulness of SSHD’s decisions maintaining the SOL condition, her relevant policy guidance and rule 360A itself, on the basis that these are or were not in accordance with article 4 of the ECHR and/or article 8 read with article 12 of the Council of Europe Convention on Action against Trafficking in Human Beings 2005 (ECAT) and associated law and guidance, and or infringed common law principles of clarity and transparency and/or discriminated against trafficking victims contrary to article 14 of the ECHR in conjunction with article 4 and/or article 8. IJ was trafficked to the UK on 31 December 2017 and was detained on 9 March 2018 after coming to the attention of the authorities. On 19 March 2018 a decision-maker found no reasonable grounds to regard her as a victim of trafficking. 

On 10 September 2018 the SSHD promulgated a policy (which was declared unlawful) that if an alleged victim of trafficking claimed asylum, their application for discretionary leave to remain as a victim of trafficking would not be determined until after their asylum claim. On 6 March 2019, IJ issued a civil claim against the Home Office and Bedfordshire Police relating to her detention, the failure to identify her as a victim of trafficking and associated breaches of her data rights and human rights. On 7 March 2019 a decision was made that there were reasonable grounds to regard her as a victim of trafficking. On 10 May 2019 she requested permission to take up a non-SOL offer of employment and made this request in alternative proceedings leading to litigation which was compromised. On 2 January 2020 the SSHD made the decision under challenge, again refusing permission for IJ to work outside the SOL, on the ground that her circumstances did not distinguish her from other asylum seekers. Subsequently, judicial review proceedings were pursued and permission was granted. On 14 July 2020 the SSHD decided that there were conclusive grounds to regard IJ as a victim of trafficking, but refused to grant her discretionary leave on the grounds that her asylum claim was outstanding. However, on 5 October 2020 the SSHD granted IJ asylum as a refugee and she was granted a work permit on 13 October 2020.

Context 

Article 11 of Directive 2003/9/EC addresses the position of those seeking asylum in the EU. If a decision at first instance has not been taken within one year of the presentation of an application for asylum and this delay cannot be attributed to applicants. Member States must decide the conditions for granting access to the labour market for the applicant. Part 11B of the Immigration Rules, paragraphs 360, 360A, 360B provide that after one year an asylum seeker may request a right to work but is not entitled to such a right. 

Asylum seekers who are allowed to work will thus be restricted to jobs on the SOL which is published by the Home Office on the advice of the Migration Advisory Committee. Overall, the SOL sets out various categories of doctors, nurses and therapists, and teachers in a few specified subjects, IT professionals, social workers, engineers, expert chefs and artists of a number of specified kinds. The Migration Advisory Committee estimates that it covers about 1% of UK employment. In the instant proceedings Bourne J found it appropriate to assume that very few if any of the asylum seekers who come to the UK like the present claimant will be able to occupy such positions.

The SOL restriction prevented her from taking up a cleaner’s job which she was offered. She thus contended that the SOL restriction and its application to her were inconsistent with the requirement under article 12 of ECAT to implement “legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery”.

Unlawful lacuna in discretionary leave policy

After the hearing but before judgment in the present case, judgment was given by Mostyn J in R (EOG) v SSHD [2020] EWHC 3310 (Admin), discussed here, where he determined, having regard to article 10 of ECAT and to the long delays which are endemic in the NRM process, that the SSHD’s policy on discretionary leave contains an unlawful lacuna by not providing for any grant of discretionary leave to remain on an interim basis to those who have received a reasonable grounds decision but, as yet, no conclusive grounds decision (or grant of asylum). The gap had particular impact on the claimant EOG because she had a time-limited visa permitting her to work but, on its expiry, was prohibited from working pending a further decision.

The Administrative Court  

IJ’s claim failed on ground 1 but succeeded on ground 2 and partially on ground 3.

Bourne J observed that it is common ground that in spite of the mandatory terms of rule 360A which provide that any permission to work “will” be subject to the SOL restriction, the SSHD nevertheless has a residual discretion to consider granting a wider permission to work in individual cases. The discretion was acknowledged, and applied, in the decision letter of 2 January 2020. IJ was aggrieved that the SSHD’s policy does not acknowledge this discretion or explain how it is to be applied.

The policy guiding caseworkers, namely Permission to work and volunteering for asylum seekers, Version 8.0 stated the mandatory rule by setting out that “If an asylum seeker or failed asylum seeker is granted permission to work (subject to the exceptions listed in the section on Applications from asylum seekers with existing leave), this must be restricted to jobs on the Shortage Occupation List (SOL), published by the Home Office.” IJ argued that the decision-maker appeared to apply a test of whether she could distinguish her case from that of other asylum seekers, however there is no published guidance or instruction which states that this is the right test or guides caseworkers on how to apply it. 

She relied on the judgment in R (W, a child) v SSHD [2020] EWHC 1299 (Admin), see here, concerning the lawfulness of published instructions to caseworkers on the policy of granting leave to remain in the UK on condition that the application have no recourse to public funds (NRPF). In W the Court ruled that the instructions failed to make clear that, to avoid a breach of article 3  of the ECHR, a NRPF condition must not be imposed or it must be lifted where, on the available evidence, the applicant was at imminent risk of destitution. Instead it merely indicated that caseworkers had a discretion which could be applied in such a case. That gave rise to a real risk of unlawful decisions in a significant number of cases. Despite the SSHD’s efforts to the contrary, Bourne J held that:

75. In my judgment, the Defendant’s response does not really meet the Claimant’s objection. The parties agree that in deciding what if any permission to work can be given to a potential victim of trafficking, it is necessary for the decision maker to exercise a discretion on the individual facts rather than applying the “bright line” rule stated in paragraph 360A of the Immigration Rules. In those circumstances, as Mr Goodman says, the lack of any reference to the discretion obviously makes the guidance misleading.

76. I also accept Mr Goodman’s submission that in applying the discretion, the decision maker must have regard to the primary objectives of ECAT. As in the case of PK Ghana, caseworkers should be directed accordingly. I do not agree with Mr Malik’s submission that any difference between articles 12 and 14 of ECAT makes PK distinguishable. Article 12 requires that the State “shall adopt” the necessary measures, while article 14 requires that the State “shall issue” a permit if it considers it necessary.

77. Guidance on article 12 therefore will be unlawful if it creates a real risk of unlawful decisions being made in a significant number of cases. The present lack of clear and focused guidance, in my judgment, creates that risk.

IJ therefore succeeded on ground 2 and Bourne J made a declaration that the guidance is defective because it failed identify the discretion or the objectives of ECAT relevant to its exercise. On the other hand, how that defect is fixed remained in the SSHD’s domain. 

In the context of ground 3, IJ submitted that the framework of rule 360A and the guidance and the decision in her case unlawfully discriminated against her, breaching article 14 of the ECHR in conjunction with article 4 and/or article 8. Notably, in Thlimmenos v Greece [2001] 31 EHRR 15, the alleged discrimination was of the type identified by the ECtHR as a failure “to treat differently persons whose situations are significantly different” and it was necessary to consider a series of questions which can be arranged in different ways and should not be “rigidly compartmentalised”. Bourne J adopted the formulation used by Murray J in R (JP and BS) v SSHD [2020] 1 WLR 918, i.e. (i) are the matters complained about within the ambit of a right protected by the ECHR? (ii) has there been a difference in treatment between two persons who are in an analogous situation – or, in this case, a failure to treat differently two persons in different situations? (iii) is that difference (or the lack of the difference) of treatment on the ground of one of the characteristics listed, or an “other status” referred to in, article 14? and (iv) is the differential treatment objectively justified, in the sense that it had a legitimate aim to which it bore a reasonable relationship of proportionality? IJ argued that the policy and the decision concerning permission to work for a potential victim of trafficking manifestly are within the ambit of both articles. The right to work, she said, has obvious implications for private life and psychological integrity. She pointed to Sidabras v Lithuania (2006) 42 EHRR 6, in which a restriction on the right to work of those who, before independence, had worked for the KGB did not infringe article 8 but did infringe article 14 in conjunction with article 8.

Further in R (K and AM) v SSHD [2018] EWHC 2951 (Admin), Mostyn J held that the policy on basic trafficking support (and a change to the amount paid to those in receipt of it) was within the ambit of Article 4, because it is accompanied by “positive obligations to provide appropriate support and assistance to the victims of the conduct which is referred to there”. In JP and BS it was agreed that the policy of deferring decisions on ECAT leave until after their asylum claims was within the ambit of articles 4 and 8. Therefore, in that case the SSHD did not dispute that the timing of an ECAT leave decision had a more than tenuous link with the right not to be subjected to slavery or servitude and with the right to respect for a person’s private life. Bourne J judged that: 

93. The case is therefore within the ambit of Article 8. But even if it were not, it would in my judgment be within the ambit of Article 4 by parity of reasoning with K and AM (see [87] above), because the grant or refusal of either an unlimited or a qualified right to work has a more than tenuous connection with the right of a trafficking victim to receive appropriate support and assistance. 

Next, Bourne J tackled the remaining questions. Taking notice of the SSHD’s resistance to IJ’s line of attack he held that:

106. Nevertheless, as under Ground 2, I have concluded that the lack of reference to a discretion in the guidance does create a real risk that caseworkers will fail to have sufficient regard to the particular circumstances, and the ECAT rights, of those who claim to be victims of trafficking, and of their decisions thereby being discriminatory in the Thlimmenos sense.

107. That is how Ground 3 clears the hurdle of showing discriminatory treatment as well as a lack of justification. Once discrimination in that sense is made out, the Defendant does not advance any factual justification for its existence, and indeed could not do so in view of her acceptance that a residual discretion should be applied in cases of this kind.

108. There will therefore be a declaration that the guidance is unlawful for that reason too. Again, the appropriate changes will be for the Defendant to frame.

The court found that the individual decision in IJ’s case failed because of the fact that her personal circumstances were taken into account. Accordingly, there was no discrimination consisting of a failure to consider the ways in which her case might be different from that of other asylum seekers. The contention that the decision maker discriminated against her by concluding that her circumstances did not compel a grant of unlimited permission to work implies that the law requires such a grant in all cases analogous to hers. Overall, the third ground succeeded in respect of the guidance; however, not in respect of rule 360A or the individual decision.

As to costs, the court said that having obtained important declarations about the guidance, IJ was the successful party despite the fact that the decision making in her individual case was upheld. Therefore, the general rule stated in CPR 44.2(2)(a) applied and so the SSHD was ordered to pay the IJ’s costs. 

Comment 

Recently the Home Office has lost a number of cases in which its guidance was declared unlawful. In R (FB (Afghanistan) & Anor) v SSHD [2020] EWCA Civ 1338, see here, the Court of Appeal held that the SSHD’s removal notice window policy found in the Judicial Review and Injunctions (Version 17.0) was unlawful insofar as it gave rise to a real risk of preventing access to justice for irregular migrants. Moreover, in R (Humnyntskyi & Ors) v SSHD [2020] EWHC 1912 (Admin), see here, Johnson J declared that the SSHD’s policy for the provision of accommodation pursuant to Schedule 10 of the Immigration Act 2016 to individuals granted immigration bail was systemically unfair. In R (W, a child), it was held that NRPF condition produces the effect of making its subjects ineligible for almost all benefits paid from public funds, including those intended to maintain the basic welfare of children. The claim succeeded on the point that the NRPF regime fails to ensure that imposing NRPF will not result in inhuman treatment contrary to article 3 of the ECHR and was contrary to section 6 of the Human Rights Act 1998 as expounded by the House of Lords in Limbuela [2006] 1 AC 396. Furthermore, in the case of R (Dzineku-Liggison & Ors) v SSHD (Fee Waiver Guidance v3 unlawful) [2020] UKUT 222 (IAC), discussed here, the UT determined that the policy on fee waivers, the Fee Waiver: Human Rights-based and other specified applications, version 3.0 (4 January 2019), was unlawful. The present case and R (EOG) are further reminders of the ongoing unlawful behaviour of the Home Office in the context of trafficking cases and the Permission to work and volunteering for asylum seekers, Version 9.0 still states that “If an asylum seeker or failed asylum seeker is granted permission to work … this must be restricted to jobs on the Shortage Occupation List (SOL), published by the Home Office.”

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 4, Article 8, Asylum, Costs, ECAT, ECHR, Human Rights Act, Human Trafficking, Immigration Rules, Judicial Review, Persecution, Working and tagged , , , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.