R Fariborz Rostami v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 07 June 2013 |
| Neutral Citation | [2013] EWHC 1494 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/246/2012 |
| Date | 07 June 2013 |
[2013] EWHC 1494 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN MANCHESTER
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Hickinbottom
Case No: CO/246/2012
Richard Wilson QC and Mikhil Karnik (instructed by Paragon Law) for the Claimant
Tim Eicke QC and Edward Brown (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 23 November 2012 and 3 May 2013
Approved Judgment
Introduction
This is the latest in a series of claims concerning the rights of those who seek asylum during the often protracted period in which their status as refugees is being determined.
Under domestic rules, once an application has been pending for a year, an asylum seeker may apply to the Secretary of State for permission to take up employment. However, if permission is granted, it is subject to the restriction that employment can only be taken up if the relevant job is included on a list of specific occupations published by the Secretary of State from time-to-time ("the Shortage Occupation List", or "the SOL"). It is that restriction which is challenged in this claim. The Claimant contends that it is contrary to both European Union ("EU") law and his human rights.
Background
The Claimant is a national of Iran, where he was born on 14 July 1965. He was educated in Iran, where he obtained a High School Diploma which he followed with a 6 month architecture course. He obtained work, first, as a technician with the Tehran Metro, where he worked from 1993 to 1999, at the same time as completing an 18 month course at the Metro's own college. From 1999 to 2001, he worked on the construction of the Imam Khomeini International Airport, again as a technician.
He left Iran in late 2001, arriving in the United Kingdom ("the UK") on 29 December 2001, claiming asylum that day. That claim was refused on 24 May 2002, and various legal challenges to that refusal were dismissed. On 19 June 2003, he made another asylum application by way of further representations.
Where an asylum seeker leaves the UK whilst an asylum application is pending, that application lapses. Nevertheless, on 4 April 2007, at a time when his June 2003 representations were still outstanding, the Claimant was arrested at Birmingham International Airport, attempting to board a flight to Canada using false documents. He has relatives in Canada. On 25 April 2007, having pleaded guilty to possessing a false identity document with intent, he was sentenced to one year's imprisonment. He was due to be released from the custodial part of that sentence in October 2007.
On 30 August 2007, the June 2003 representations were accepted by the Secretary of State as amounting to a fresh claim for the purposes of paragraph 353 of the Immigration Rules, which had the practical effect of giving the Claimant a right of appeal from any later refusal of this second application for asylum. However, in the light of his conviction, a week later, on 6 September, the Secretary of State decided to make a deportation order against the Claimant, which also had a right of appeal attached; and so she formally withdrew the decision of 30 August on the basis that the substance of the Claimant's representations could and would be considered and dealt with on any appeal from the deportation order. The Claimant's appeal against that order was dismissed on 11 February 2008, and by April 2008 his appeal rights had been exhausted. Thereafter, the Claimant was under an obligation to leave the UK, and liable to be removed. However, he did not leave, nor was he removed.
On 22 April 2010, the Claimant made further representations with fresh material, seeking a revocation of his deportation order, again on the ground that he should be granted refugee status; and his solicitors sent regular reminders to the Secretary of State seeking a response. On 2 November 2011, those representations were refused, with a further right of appeal. That appeal was refused on 22 February 2012. Permission for an onward appeal was refused by both the First-tier Tribunal and the Upper Tribunal, the latter in a determination made on 12 July, but sent to the Claimant on 24 July 2012. As I understand it, no further representations have been made. Since July 2012, once more, the Claimant has been under an obligation to leave the UK, and been liable to be removed.
In the meantime, on 15 April 2011, solicitors for the Claimant wrote to the UK Border Agency ("the UKBA") requesting permission to work, pending the outcome of his further application for the revocation of the deportation order; a request repeated in a pre-action letter dated 28 July 2011. On 15 August 2011, he was granted permission to work, but restricted to jobs on the SOL. On 22 August, the Claimant's solicitors wrote again, once more requesting permission to work, and indicating that the earlier refusal was in breach of EU law, was an unlawful interference with the Claimant's right to private life, and unlawfully failed to take into account the Claimant's particular circumstances. The UKBA replied on 6 September 2011, stating that "there is no requirement for an applicant's personal circumstances to be taken into account…"; and reaffirming the decision to grant the Claimant permission to work, but limited to employment on the SOL. It is that particular decision, to restrict the permission to work thus, which the Claimant now challenges.
In fact, the Claimant has not found any employment in a SOL post since his permit was granted in August 2011. Consequently, during the 11 years he has been in the UK, he has never worked. With some gaps (when he has been supported by charities, his church and friends), he has received financial support from the State.
Sections 95 and 98 of the Immigration and Asylum Act 1999 gave the Secretary of State a power to provide support to asylum seekers and their dependents, in the form of adequate accommodation, financial support for what appears to him to be essential living needs, and certain identified specific expenses. Regulation 5 of the Asylum Seekers (Reception Conditions) Regulations 2005 (SI 2005 No 7), which came into force on 5 February 2005, converted that power into a duty. However, the Secretary of State has a wide discretion as to how that obligation will be met, and the manner in which support is given (see, e.g., R (Q) v Secretary of State for the Home Department [2003] EWCA Civ 364; [2004] QB 36 (" R (Q) v SSHD")). Recognising that support for those waiting for the determination of an asylum claim is essentially temporary (see section 97(5) of the 1999 Act) and that certain items (such furnished accommodation, including the cost of service bills and household items) are usually provided through other benefits in any event, the amounts payable are less than the "applicable amounts" of income support to which people similarly situated would be entitled under section 124(4) of the Social Security and Benefits Act 1992, being about 70% of that amount. The current amount payable for a single adult is £36.62 per week.
Financial support is given to asylum seekers mostly in the form of vouchers which have to be spent in particular supermarkets or other shops. A support applicant cannot carry over more than £5 per week, and so there is no opportunity to save for larger items. The Claimant says that he has two or three very basic meals per day; but the amount of the support does not enable him to buy as much food as he would like or the clothes he would like, and does not enable him, for example, to travel to visit friends he has in Manchester and London or otherwise entertain himself. The practical constraints on a person with an income of only £36-odd per week are obvious.
Of his asylum applications, and his inability to work whilst they have been pending, the Claimant says (9 July 2012 Statement, paragraphs 10 and 16):
"Over time, the uncertainty regarding my immigration matters and the fact that I have not been able to work has worn me down. I feel like the last 11 years have in many ways been a vacuum in my life, where I have not been able to do anything productive. I feel my skills are completely wasted. Not being able to work sometimes feels to me like I am in prison because I am not being able to fulfil my role and do what I am capable of.
…. I have felt like I have been worn down by this process over a large number of years. I feel sick and I often do not want to do anything."
On 9 July 2012, the Claimant was offered a job as a kitchen assistant in a pizza fast food establishment, by a friend: 16 hours a week at £6.08 per hour. That is not an occupation on the SOL; but it is a job opportunity he wished to take up, if he had been allowed to do so.
For the sake of completeness, I should touch upon two other matters. First, during the periods when the Claimant has not been an asylum seeker in the sense that he has not had an asylum claim outstanding, he has generally been given provision by the Secretary of State under the hard cases power in section 4 of the 1999 Act, although for two periods of about 10 months in aggregate that support was stopped and he relied upon charitable donations from friends, including friends from the church he was attending. Second, the Claimant has had no claim for asylum pending since July 2012, when his last claim was finally determined.
I mention those matters because this claim is focused on the right to work of asylum...
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