The Queen (on the application of Allan Leonardo Contreras Cardona) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Linden |
| Judgment Date | 04 October 2021 |
| Neutral Citation | [2021] EWHC 2656 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3473/2020 |
[2021] EWHC 2656 (Admin)
THE HONOURABLE Mr Justice Linden
Case No: CO/3473/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Ali Bandegani (instructed by ITN Solicitors) for the Claimant
Mr Zane Malik QC and Mr Will Hays (instructed by the Government Legal Department) for the Defendant
Hearing date: 27 July 2021
Approved Judgment
Introduction
The Claimant is a citizen of Honduras. On 20 September 2018, he arrived in this country with his wife and their daughter, who was then aged 21 months, and they claimed asylum. At the time of the hearing before me, nearly 3 years later, that application had yet to be determined although I was told that an outcome was expected by 21 September 2021 “absent special circumstances”.
On 31 January 2020, the Claimant was granted permission to work pending the determination of his application for asylum. In accordance with Rule 360A of the Immigration Rules, that permission was limited to employment in jobs on the Shortage Occupations List (“SOL/the SOL condition”). As Bourne J found in IJ (Kosovo) v Secretary of State for the Home Department [2020] EWHC 3487 [31]–[32]:
“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.
32 It seems reasonable to assume that very few if any of the individuals who come to the UK in circumstances comparable to those of the claimant will be able to occupy such positions. The SOL restriction prevented the claimant from taking up the job (as a cleaner) which she was offered.”
Similarly, the Claimant does not have the skills or qualifications which would enable him to take up one of the occupations on the SOL. But, he says, there are jobs available in Portsmouth where he and his family are living, for example as a replenishment assistant in a supermarket, which local employers would be willing to offer him and which he would like to take up.
Following the grant of permission to work, correspondence therefore took place between the parties in the course of which it was argued on behalf of the Claimant, in effect, that the SOL condition should not have been applied to him and, on 13 May 2020, judicial review proceedings were issued (“the First Claim”). In this context, the Defendant then considered whether she should exercise her residual discretion to depart from the Immigration Rules by disapplying the SOL condition in the Claimant's case. In a decision dated 24 June 2020 she declined to do so (“the Decision”), and it is this decision which is challenged in the present proceedings (“the Second Claim”).
The Decision is set out in a one-page letter. This briefly summarised the background to the First Claim, said that the matter had been given further consideration and identified the materials which had been considered in coming to a decision. The letter then said:
“It has been concluded that no exceptional and/or compassionate reasons exist both generally or by reference to Section 55 of the Borders, Citizenship and Immigration Act 2009, and it is therefore not appropriate to exercise discretion in your case. Your personal circumstances on which you rely exist for a large number of asylum seekers who are waiting for an asylum decision and granted limited PTW. Consequently, exercising the exceptional residual discretion to depart from the established policy would substantially undermine the effect of Paragraph 360 and 360A of the Immigration Rules, and the balance that is struck by those Rules in protecting the public interest. Therefore, it is not justified to depart from the established policy and your PTW remains restricted to the SOL.”
The Claim
On 2 July 2020, I refused permission on the papers in the First Claim. The Claimant gave notice of his intention to renew his application orally but, in the meantime, the Second Claim was issued on 24 September 2020. By a Consent Order sealed on 12 January 2021, the First Claim was then withdrawn.
After consideration of a renewed application for permission at an oral hearing in the Second Claim on 21 April 2021, permission was granted by Henshaw J in respect of some of the Claimant's pleaded grounds but not others: see [2021] EWHC 1780 (Admin). In particular, he granted permission in relation to Grounds 2 and 3:
i) Ground 2 alleges that the Defendant's policy, “Permission to work and volunteering for asylum seekers” (“the Work Policy”), fails to comply with section 55 Borders, Citizenship and Immigration Act 2009 (“the 2009 Act”) which enacts a duty on her part to make arrangements for ensuring that those who exercise relevant immigration functions have regard to the need to safeguard and promote the welfare of children. The version of the Work Policy which was in force at the time of the Decision was Version 8, which was dated 22 May 2019, and the Claim Form and “Grounds of Review” criticise its terms and seek declaratory relief in relation to that version. The two pleaded criticisms of the Work Policy (at paragraph 52 of the Grounds of Review) are, first, that decision-makers are only directed to consider section 55 of the 2009 Act in deciding whether or not to grant permission to work in accordance with the Immigration Rules, and not when considering whether to exercise discretion to depart from the Rules. Second, it is contended that what is said in the Work Policy about the operation of section 55 in this context is flawed in respects which I consider below.
ii) Ground 3 alleges that the Decision itself was irrational in that the reasons given by the Defendant did not sufficiently explain her decision and/or did not address the particular considerations in the Claimant's case.
There is no challenge by the Claimant to the Immigration Rules themselves.
It is also important to note that Henshaw J refused permission in relation to Ground 1 of the Second Claim. This alleged that Version 8 of the Work Policy operated as an unlawful fetter on the Defendant's residual discretion, in exceptional circumstances, to depart from the Immigration Rules, essentially because it did not identify the fact that there is such a discretion. Nor, therefore, did the Work Policy identify the factors which would be taken into account in exercising this discretion. Henshaw J pointed out that, although it was arguable that the Work Policy was deficient in failing to identify the existence of the residual discretion, and indeed such an argument had been upheld in R (C6) v Secretary of State for the Home Department UKUT 0094 (IAC), this was beside the point because, in the present case, the residual discretion had been exercised by the Defendant.
Ground 4, which alleged that the Work Policy was contrary to Article 8 of the European Convention on Human Rights (“ECHR”), was abandoned by the Claimant at the permission stage.
The Hearing
For the purposes of the Second Claim the Claimant relied on his Grounds of Review dated 23 September 2020. He did not submit a witness statement in support of his Claim Form.
By notice dated 15 July 2021, the Claimant then applied to rely on further evidence, namely his “updated” witness statement dated 14 July 2021 and a statement of Ms Laura Smith (Interim Legal Director of the Joint Council for the Welfare of Immigrants (“JCWI”)) dated 15 July 2021. This, in turn, exhibited a statement by her predecessor Ms Nicola Burgess, dated 30 March 2021, which had been filed in the case of R (on the application of NB & Others) v Secretary of State for the Home Department [2021] 4 WLR 92. The Claimant also applied to rely on more than 600 pages of further reports and documents which are in the public domain. At the beginning of the hearing, however, Mr Bandegani indicated that this application was not pursued.
The Defendant relied on the 3-page witness statement of Dr Miv Elimelech, Deputy Director for the Asylum and Family Policy Unit of the Home Office, dated 30 June 2021. For the most part, this contained general assertions, arguments about the case, or statements of what is known in any event. It did not exhibit any supporting documents. I did not find it particularly helpful in determining the issues in the case.
Given Mr Bandegani's reliance, in his skeleton argument at least, on Mathieson v Secretary of State for Work and Pensions [2015] 1 WLR 3250, I drew the attention of the parties to the decision of the Supreme Court in R (SC & Others) v Secretary of State for Work and Pensions [2021] UKSC 26 in advance of the hearing. In the event, neither side considered that this decision materially impacted on the issues in the present case. Having heard their arguments, I agree.
Submissions in the light of the draft judgment
My draft judgment was circulated in the usual way on 1 September 2021. By email dated 8 September 2021, Mr Hays helpfully drew attention to the decisions of the Supreme Court in R (A) v Secretary of State for the Home Department [2021] UKSC 37 and R (BF (Eritrea)) v Secretary of State for the Home Department [2021] UKSC, which were handed down on 30 July 2021, albeit without...
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