The two claimants were represented by Shu Shin Luh and Grace Capel of Garden Court’s Public Law and Immigration Teams, instructed by Hannah Baynes, Helen Baron and Joud Soeb of Duncan Lewis’ Public Law Team.
On 20 November 2019, the Home Office conceded in the settlement of two claims for judicial review that it had acted unlawfully in imposing a study restriction as a condition of bail on two individuals simply because they had failed in their initial asylum claims and exhausted their appeal rights. The concession has come less than a week before the substantive hearing due to be held on 26 November 2019.
In settling the claims, the Home Office has agreed to review and revise its Immigration Bail Guidance, conceding that:
- There is no requirement to impose a study restriction in all cases where a person is ‘appeal rights exhausted’ (ARE);
- A decision to impose any bail conditions, including a study restriction, must be made on the basis of the person’s individual circumstances, conduct and compliance; and
- That the ‘Quick Guide on Usage’ in the Immigration Bail Guidance is not intended to direct the imposition of a study restriction in all cases falling with a particular category – for example, individuals who are ‘appeals rights exhausted’.
The two claimants were both asylum-seeking university students, who won competitive Sanctuary scholarships in order to fund their studies.
The first claimant, who was studying Cancer Biology, was due to sit her end of first year exams when the Home Office imposed a study restriction on her. Her asylum claim had been refused, but she had gathered further evidence to submit in support of a further claim for protection. She was however unable to do so without an appointment from the Home Office which took several months to obtain. The Home Office was aware of this but still imposed a study restriction anyway. She was unable to sit her exams as a result. Even once she had made her further submissions, the Home Office refused to vary her immigration bail conditions to remove the study restriction, stating that until they had made a decision on them, our client was still ‘appeals rights exhausted’.
She therefore lost the further opportunity to sit her exam during the summer resit period, which would have allowed her to complete her first year of study. She had to drop out of university. Despite numerous refusals by the Home Office, and refusals both of interim relief and permission for judicial review by the Court, we persisted with our challenge, and were finally granted permission for judicial review.
The second claimant had accepted a place to study Politics and International Relations, but was informed during the process of enrolment that he had no right to study. He was gathering further evidence on the persecution that he had experienced in the Congo, in order to make further submissions to the Home Office. He had been given an appointment to make his submissions in early 2020. The Home Office told his university that he was appeals rights exhausted and not permitted to study. The Home Office would not back down even after we challenged the decision so we had to issue an application for permission for judicial review and pursue an interim injunction from the court. The Upper Tribunal granted an interim injunction suspending the imposition of the study restriction on the second claimant so that he could enrol on his university course.
In the lead up to the 26 November 2019 substantive hearing, the Home Office removed the study restriction as a condition of both clients’ immigration bail, and has agreed that they will not re-impose a study restriction on either client simply if they become appeals rights exhausted again.
Solicitor Hannah Baynes comments:
“We have seen first-hand from our clients the positive impact that being able to study has had on them, not only in terms of gaining important knowledge and skills to enable them to pursue their career aspirations, but also the impact on their mental health and emotional well-being. The imposition of study restrictions singles out already vulnerable asylum seeking students from their course-mates, making them feel inferior and of less value on account of their immigration status.
“We are very pleased that the Home Office has recognised that they were incorrectly applying the law in imposing study restrictions on ‘appeals rights exhausted’ individuals and have agreed to amend the Immigration Bail Policy as soon as possible to reflect this. We hope that this will prevent more students having to stop or delay commencing their university courses, missing exams and important lectures as a result”.
Shu Shin, Grace and the Duncan Lewis legal team would also like to acknowledge the work done by Gráinne Mellon and Ronan Toal, also of Garden Court Chambers, and thank Student Action for Refugees, Bristol University, RefuAid, Refugee Support Network and others who provided evidence in support of the claims.