Upper Tribunal (Immigration and asylum chamber), 2021-01-13, [2021] UKUT 94 (IAC) (R (on the application of C6) v Secretary of State for the Home Department (asylum seekers’ permission to work))
| Jurisdiction | UK Non-devolved |
| Judge | UPPER TRIBUNAL JUDGE STEPHEN SMITH |
| Status | Reported |
| Date | 13 January 2021 |
| Published date | 20 April 2021 |
| Hearing Date | 07 January 2021 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | asylum seekers’ permission to work |
| Appeal Number | [2021] UKUT 94 (IAC) |
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
R (on the application of C6) v Secretary of State for the Home Department (asylum seekers’ permission to work) [2021] UKUT 0094 (IAC)
Field House,
Breams Buildings
13 January 2021
Before:
UPPER TRIBUNAL JUDGE STEPHEN SMITH
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Between:
THE QUEEN
(on the application of C6)
(ANONYMITY DIRECTION IN FORCE)
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Ms S. Harrison, QC, and Mr A. Bandegani
(instructed by Birnberg Peirce), for the applicant
Mr W. Hays
(instructed by the Government Legal Department) for the respondent
Hearing date: 6 November 2020
Further submissions received: 4, 5 and 7 January 2021
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J U D G M E N T
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JUDGMENT
Insofar as the Secretary of State’s policy Permission to work and volunteering for asylum seekers, version 8.0, 29 May 2019, admits no exceptions, it has not been justified and so is unlawful.
Upper Tribunal Judge Stephen Smith:
Introduction
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This is an application for judicial review challenging a decision of the respondent dated 4 February 2020 to refuse to grant the applicant, a citizen of Afghanistan with protection proceedings pending before the Special Immigration Appeals Commission (“SIAC”), permission, in principle, to work in any capacity other than in a role on the Secretary of State’s “shortage occupation list” (“the SOL”), pursuant to her Permission to work and volunteering for asylum seekers policy, version 8.0, 22 May 2019 (“the Work Policy”). In this decision, I refer to the Secretary of State’s decision of 4 February 2020 as “the February 2020 decision”.
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The applicant has obtained an offer of work as a delivery driver for a pizza and chicken fast food outlet. In the February 2020 decision, the Secretary of State refused to grant permission to take up that position on the basis that the role of delivery driver does not feature on the SOL, and, as such, the role would be incompatible with the Work Policy. The Secretary of State did not consider whether, if she were willing in principle to grant the applicant permission to work as a delivery driver, it would engage any national security considerations. National security matters are outside the scope of these proceedings.
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On 19 May 2020, Upper Tribunal Judge Coker ordered that the applicant be granted anonymity in these proceedings in terms that mirror the anonymity he enjoys in the ongoing SIAC proceedings. Judge Coker also refused an application for this application for judicial review to be case managed by Mrs Justice Laing, the then President of SIAC, on the basis that the application did not raise matters that were outside the jurisdiction or competence of the Upper Tribunal. Before me, there has been no attempt to revisit Judge Coker’s decision that this application is within the institutional competence of the Upper Tribunal, and no issues arose which gave me cause to do so of my own motion.
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Permission to make this application was granted by Upper Tribunal Judge Owens on all grounds on 30 July 2020.
IJ (Kosovo): written submissions
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On 18 December 2020, the Mr Justice Bourne handed down judgment in R (oao IJ (Kosovo)) v Secretary of State for the Home Department [2020] EWHC 3487 (Admin). Those proceedings considered the application of the Work Policy and paragraphs 360ff of the Immigration Rules in the context of a victim of trafficking, declaring that the Work Policy was unlawful in certain respects.
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I directed that, should they wish to do so, the parties could make written submissions on the judgment by 4 January 2021. I am grateful to both parties for having done so in a timely manner. Thereafter, both parties sought to respond to the other’s submissions; the applicant on 5 January 2021, and the respondent, by way of a factual observation, on 7 January 2021. I had not directed or permitted additional submissions. The parties are reminded that the Tribunal would have issued further directions, or reconvened the hearing, in the event such steps were necessary.
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I consider IJ (Kosovo), and the submissions made in response to it, where relevant below.
Factual background
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The applicant, C6, is a citizen of Afghanistan. He arrived in this country as an unaccompanied minor in December 2003 and claimed asylum. The claim was refused, but he was granted discretionary leave to remain, and, in September 2011, he acquired British citizenship.
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On 20 May 2014, the applicant was notified by the Secretary of State that she had decided to deprive him of his British citizenship on the grounds that to do so was conducive to the public good. That decision was upheld by SIAC on appeal on 22 December 2015, and an application for permission to appeal against the SIAC deprivation decision was finally refused on 10 November 2016. The applicant thus enjoyed British citizenship for a period exceeding 11 years.
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The relevant findings of SIAC in the course of upholding the Secretary of State’s decision to deprive C6 of his British citizenship related to a return visit he made to Afghanistan in 2014, and the links he was assessed by the Security Service to have with an associate of the leader of a “small group of highly experienced Al Qaeda militants” operating in Afghanistan. SIAC found that it was highly probable that items of electronic equipment taken by the applicant to Afghanistan via Saudi Arabia were taken with the intention of providing assistance to the associate of the Al Qaeda operative with whom the applicant was found to be linked. Further, SIAC found that it was very highly probable that C6 was an Islamist extremist.
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On 15 November 2016, the applicant made further submissions in support of a fresh claim for international protection under paragraph 353 of the Immigration Rules. The application was refused on 31 January 2018, and the respondent initially declined to treat the further submissions as a “fresh claim”, with the effect that the refusal decision did not attract a right of appeal. The decision was remade on 22 March 2018, in circumstances which again did not attract a right of appeal. On 29 October 2018, Mrs Justice Jefford granted permission to bring judicial review proceedings against the 22 March 2018 refusal decision, which led to the Secretary of State withdrawing the decision. The Secretary of State took a further decision to refuse the further submissions on 19 February 2020, this time treating them as a fresh claim, thereby attracting a right of appeal. The applicant’s appeal against that decision lies to SIAC. The parties have informed me that it is unlikely that that appeal will be heard by SIAC before October 2021.
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Following his release from a period in immigration detention, the applicant has been subject to bail conditions imposed by SIAC on 15 December 2014 by Mr Justice Irwin, as he then was. Pursuant to the bail conditions, the liberty of the applicant is restricted on several fronts, to a significant extent. The conditions imposed a curfew requirement on the applicant, requiring him to be in his residence at all times save for 5 am to 8am, 12 noon to 5.30pm, and 7pm to 9pm. He is subject to monitoring conditions, restrictions as to who is permitted to visit him at his home during the curfew periods, restrictions on contact with persons during the non-curfew periods, electronic communication conditions which prevent him from accessing the internet, conditions restricting his access to bank accounts and financial services, conditions relating to his identity and travel documents, conditions restricting his ability to lead prayers at the mosque, and conditions requiring him only to use a single vehicle of a type approved by the Secretary of State. The applicant is also subject to employment conditions, addressed below.
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Another feature of the applicant’s case, both when applying for variations to his bail conditions before SIAC, and in these proceedings, are his medical conditions. The applicant has been assessed by Dr Katona who, in a report dated 11 January 2018, diagnosed him with a “major depressive episode”. Dr Katona noted that the applicant had an episode of poor mental health in 2010, but that he remained mentally well until his detention under immigration powers in 2014. Dr Katona prepared a joint expert report with Professor Grubin, instructed by the respondent, dated 19 January 2018. The experts agree that the applicant experiences depression, although Dr Katona considers it to be moderate, while Professor Grubin considers it to be mild [6.b]. The applicant also claims to experience a range of debilitating physical symptoms, including muscle pain, joint pain, chest pain, and abdominal pain. Dr Katona and Professor Grubin agree that the applicant is telling the truth about the pain he claims to experience, and that there is a “strong and malign interaction” between his mental and physical conditions. The experts also...
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