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Home Office work policy declared unlawful

Thursday 14 January 2021

Stephanie Harrison QC and Ali Bandegani of the Garden Court Chambers Public Law Team represented C6, instructed by Daniel Furner of Birnberg Peirce.

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In R (C6) v SSHD (JR/1414/2020) the Upper Tribunal declared the Secretary of State’s Work Policy  (Permission to work and volunteering for asylum seekers policy, 22 May 2019) constituted an unlawful fetter on discretion admitting of no exceptions and that the individual decision was also flawed because of a failure to take into account all relevant matters.

Rules and policy

Para 360 of the Immigration Rules allows asylum seekers to access the labour market only when (a) their claim has been under consideration for at least 12 months, provided (b) the delay was not their fault. If granted, permission to work is restricted to roles on the Shortage Occupation List (‘SOL’). Occupations on the SOL tend to be those that asylum seekers are not qualified or experienced to take up. Therefore, the only meaningful opportunity to access the labour market is to ask the Secretary of State to exercise her discretion ‘outside the rules’. Home Office officials responsible for considering applications to work by asylum seekers must apply the Secretary of State’s Work Policy.

Judgment 

C6 successfully challenged the Secretary of State’s decision refusing to allow him to work in a role not on the SOL because she failed to take into account relevant considerations, in particular factors that indicated that the underlying rationale of the policy did not apply to the facts of his case in light if his immigration history, his meritorious human rights clam and the benefits to his mental health of gainful employment. C6 also successfully argued in respect of the policy:
  
(1)   ‘If the policy admits of a discretion.... one would expect to see references to the existence of such a discretion in the policy itself, or at least cross-references to the existence of such discretion elsewhere’ [61]. 
  
(2)   ‘It is clear that pursuant to the express terms of the policy, permission to work, if granted, will only ever be for SOL roles. There is simply no provision anywhere in the policy for the Secretary of State’s officials to consider exercising discretion to depart from that requirement in exceptional, or any, circumstances’ [70]. 
  
(3)  There was ‘no evidence from the Secretary of State that, in practice, she applies the Work Policy with the inherent possibility of the exercise of discretion in mind. The fact that there is no reference to an exercise of discretion may give rise to a real risk that, as here, the policy is applied in rigid and inflexible manner, fettering the discretion of the decision maker’ [75].  
  
(4)  The Secretary of State’s Work Policy is ‘a blanket policy, admitting of no possibilities of exceptions’ and is unlawful and a declaration made to that effect [79].  
  
Neither party has sought permission from the Upper Tribunal to appeal to the Court of Appeal.

Click here to download the Judgment.

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