Upper Tribunal (Immigration and asylum chamber), 2022-09-15, [2022] UKUT 00299 (IAC) (R (on the application of OH) v Secretary of State for the Home Department (permission to work, asylum dependants))
| Judge | Upper Tribunal Judge Stephen Smith |
| Status | Reported |
| Published date | 14 November 2022 |
| Date | 15 September 2022 |
| Hearing Date | 09 May 2022 |
| Appeal Number | [2022] UKUT 00299 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | permission to work, asylum dependants |
UT Neutral Citation Number: [2022] UKUT 00299 (IAC)
R (on the application of OH) v Secretary of State for the Home Department
(permission to work: asylum dependants)
Upper Tribunal
(Immigration and Asylum Chamber)
At Field House
THE IMMIGRATION ACTS
Heard on 9 May 2022
Promulgated on 15 September 2022
Before:
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
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J U D G M E N T
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The Secretary of State’s guidance, Permission to work and volunteering for asylum seekers, version 10.0, does not breach Articles 8 and 14 of the European Convention on Human Rights on account of the absence of any express reference to the Secretary of State’s residual discretion to grant permission to work to the dependents of asylum seekers.
Judge Stephen Smith:
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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”).
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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”.
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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.
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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.
FACTUAL BACKGROUND
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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.
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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.
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By his request for discretion to be exercised in his favour, the applicant claimed that there were exceptional circumstances, namely his medical qualifications and experience, which, he said, would provide much needed assistance to the NHS at this time.
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There appear to be two decisions refusing the applicant’s application for permission to work.
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The first is dated 14 May 2021. It states:
“Thank you for your letter requesting permission to work.
You have asked whether you may 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.”
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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.”
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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 elaboration. The second decision is the one under challenge.
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Since this application for judicial review was brought, the applicant’s wife was granted asylum. On 24 November 2021, the applicant, as her dependent, was granted leave to remain (and, therefore, permission to work) “in line” with her status. I address whether this renders the claim academic below.
PROCEDURAL BACKGROUND
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By an order dated 11 November 2021, Bourne J granted the applicant permission to bring these proceedings solely in relation to ground 4, which contends that the policy of treating main applicants and their dependents differently as regards permission to work breaches Article 8 ECHR read with Article 14 ECHR, giving the following reasons:
“As to Ground 4, it is arguable that the Respondent’s policy as to whether the dependants of asylum applicants are permitted to work is within the ambit of ECHR Article 8, and that such persons have a ‘status’, for the purposes of Article 14. The only justification advanced for the policy is the aim of ‘protecting the domestic labour force’. Whilst the Tribunal will have to bear in mind the high threshold for interfering with the Secretary of State’s judgment in matters of that kind, it is arguable that a lack of any discretion engages Article 14 and is not proportionate.”
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Permission was refused on grounds 1 to 3 and the applicant did not apply to renew his application orally in relation to those grounds, which related to the exercise of discretion outside the Immigration Rules (ground 1), a failure to give sufficient reasons (ground 2), and a claimed failure to apply the PTW guidance (ground 3). In refusing permission, Bourne J said:
“The other grounds are not arguable as it appears that the Guidance only concerns asylum applicants rather than dependents and therefore that there is indeed no discretion in favour of dependents.”
LEGAL FRAMEWORK
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Section 1(2) of the Immigration Act 1971 (“the 1971 Act”) provides that those without the right of abode in the United Kingdom may only “live, work and settle” in the United Kingdom “by permission”:
“Those not having [the right of abode] may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act.”
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Section 3(2) of the 1971 Act makes provision for the Secretary of State concerning the creation of immigration rules, and a process for parliamentary oversight. It provides, where relevant:
“(2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances…” (emphasis added)
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The Secretary of State enjoys a residual discretion to grant leave, or vary conditions of leave outside the Immigration Rules or applicable guidance.
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Section 24B(1) and (2) of the 1971 Act makes it a criminal offence for a person to work if they do so at a time when they are disqualified from doing so by reason of their immigration status, and knew, or had reasonable cause to know, that they were so prohibited:
“(1) A person (‘P’) who is subject to immigration control commits an offence if—
(a) P works at a time when P is disqualified from working by reason of P's immigration status, and
(b) at that time P knows...
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