Upper Tribunal (Immigration and asylum chamber), 2022-09-15, JR-2021-LON-001003
| Appeal Number | JR-2021-LON-001003 |
| Hearing Date | 09 May 2022 |
| Published date | 21 September 2022 |
| Date | 15 September 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
|
|
In the Upper Tribunal (Immigration and Asylum Chamber) Judicial Review |
JR-2021-LON- 001003 |
|
In the matter of an application for Judicial Review |
||
|
|
The King on the application of |
|
|
|
OH |
|
|
|
|
Applicant |
|
|
versus |
|
|
|
Secretary of State for the Home Department |
|
|
|
|
Respondent |
|
|
ORDER |
|
HAVING considered all documents lodged and having heard Mr Alex Goodman and Mr Raza Halim of counsel, instructed by Duncan Lewis, for the applicant, and Mr Z. Malik KC, instructed by the Government Legal Department, for the respondent, at a hearing on 9 May 2022
IT IS ORDERED THAT:
-
The claim for judicial review is dismissed for the reasons given in the attached judgment.
-
The Applicant do pay the Respondent’s reasonable costs of this claim, to be assessed on the standard basis if not agreed.
-
Permission to appeal is refused. I have considered with care each of the proposed grounds of appeal. I refuse permission to appeal because, in my view none of them have a realistic prospect of success and there is no other compelling reason why permission to appeal should be granted.
Signed: Stephen H Smith
Dated: 15 September 2022
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 15 September 2022
Solicitors:
Ref No.
Home Office Ref:
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
Case No: JR-2021-LON-001003
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
15 September 2022
UPPER TRIBUNAL JUDGE STEPHEN SMITH
- - - - - - - - - - - - - - - - - - - -
Between:
THE KING
on the application of OH
(ANONYMITY DIRECTION MADE)
Applicant
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- - - - - - - - - - - - - - - - - - - -
Mr A. Goodman and Mr R. Halim
(instructed by Duncan Lewis Solicitors), for the applicant
Mr Z. Malik KC
(instructed by the Government Legal Department) for the respondent
Hearing date: 9 May 2022
- - - - - - - - - - - - - - - - - - - J U D G M E N T
- - - - - - - - - - - - - - - - - - - -
Judge Stephen Smith:
-
By this application for judicial review, the applicant seeks to challenge a decision dated 2 July 2021 to refuse his application for permission to work, submitted as the dependent to his wife’s claim for asylum. The basis for the challenge, which the applicant pursues on a single ground with the permission of Bourne J (sitting as a Judge of the Upper Tribunal), is that the Secretary of State’s policy of treating asylum seekers and their dependents differently for the purposes of granting permission to work is contrary to Articles 8 and 14 of the European Convention on Human Rights (“the ECHR”).
-
The Secretary of State’s policy is contained in guidance issued to her officials. The version in force at the time of the decision under challenge was entitled Permission to work and volunteering for asylum seekers, version 10.0, published for Home Office staff on 4 May 2021. I shall refer to it in this judgment as “the PTW guidance”.
-
In this judgment, “dependents’ access to the labour market” (and variations of it) means the access of dependents of asylum seekers to the labour market, and the term “dependents” means dependents of asylum seekers, unless otherwise stated.
-
Bourne J granted the applicant anonymity. I consider that it is appropriate to maintain that order, primarily on account of the applicant’s wife’s status as a refugee.
-
The applicant is a citizen of Iraq. He attended the College of Medicine at Baghdad University, qualified as a doctor in 2011 and worked for a time for the Iraqi army. He and his family fled Iraq to the UK in 2016. He claimed asylum, but his claim was refused and an appeal against the refusal was dismissed by the First-tier Tribunal on 10 March 2017. He made further submissions which were refused as a fresh claim, the appeal against which was dismissed on 24 September 2020. The applicant’s wife and family had been listed as dependents to those claims.
-
The applicant’s wife, who is also a doctor, subsequently made a claim for asylum in her own capacity, based on her sur place activities. The applicant was listed as a dependent to that claim. While her asylum claim was pending, both she and the applicant applied for permission to work in the medical profession, on 11 and 6 April 2021 respectively. Since neither the applicant nor his wife met the criteria to be granted permission to work under the Immigration Rules concerning asylum seekers’ access to the labour market, they each invited the Secretary of State to exercise discretion in their favour. The Secretary of State exercised her discretion in the case of the applicant’s wife, and she was granted permission to work on 18 May 2021.
-
By his request for discretion to be exercised in his favour, the applicant claimed that there were exceptional circumstances, namely medical qualifications and experience, which, he said, would provide much needed assistance to the NHS at this time.
-
There appear to be two decisions refusing the applicant’s application for permission
to work.
-
The first is dated 14 May 2021. It states:
“Thank you for your letter requesting permission to work.
You have asked whether you make take employment while your application for asylum is being considered.
I have refused your request for permission to work at this stage because you do not have an asylum claim as a main applicant, and there is no provision to grant permission to work to dependents of an asylum seeker even where the claim or further submission has been outstanding for more than 12 months.
Therefore you may not take employment in the United Kingdom, nor may you be self-employed or engage in business or professional activity.”
-
By a decision dated 2 July 2021, the application was again refused, with the following operative reasoning:
“I have refused your request for permission to work at this stage
because you are not the main applicant on the asylum claim.
Therefore you may not take employment in the United Kingdom, nor may you be self-employed or engage in business or professional activity.”
-
It is not clear why there were two, largely identical decisions. The Statement of Facts and Grounds says, at paragraph 9, that the applicant’s permission to work application “was eventually refused on 2 July 2021” without further ...
To continue reading
Request your trial