On 5 June 2020, the High Court granted our client, (‘the Claimant’), permission to judicially review the legality of the SSHD’s (‘the Defendant’) immigration rules and current Permission to Work policy for asylum seekers.
Paragraph 360 of Part 11B of the Immigration Rules (together with the Defendant’s Permission to Work (‘PTW’) policy) enables asylum seekers to apply for PTW in the UK if they have been waiting for a decision on their asylum claims for over a year. However, successful applicants can only be granted PTW in jobs restricted to the list of highly-skilled professions set out in the Defendant’s Shortage Occupation List (‘SOL’). This means that many asylum seekers are essentially prevented from working whilst they experience significant delays in the determination of their asylum claims.
As a result of previous litigation brought by the Claimant, the Defendant agreed to reconsider her application for PTW in employment not included within the SOL on a discretionary basis. Despite this, she went on to make a new decision and restrict the Claimant’s PTW to jobs on the SOL, alleging that the Claimant had not raised any exceptional circumstances to justify discretion being granted in her favour.
This decision prompted the Claimant’s current judicial review claim which argues that:
- The Defendant’s decision to refuse her PTW outside the SOL is irrational, unreasonable and breaches the Claimant’s rights under Article 8 ECHR and the UK’s obligations under the Council of Europe Convention on Action against Trafficking in Human Beings.
- As a consequence of the policy’s failure to refer to applications being considered on a discretionary basis, the policy fails to facilitate a rational discretionary decision and amounts to a fettering of the Defendant’s discretion.
- The PTW policy itself is discriminatory under Article 14 ECHR when read together with Article 8 ECHR, and in breach of s.149 of the Equality Act as it has disproportionately prejudicial effects on asylum seekers, particularly as:
- It only provides an illusory right to work as a vast majority of asylum seekers will not benefit from obtaining PTW in jobs limited to the SOL;
- There is no real justification for imposing restrictions on the right to work for asylum seekers who are not here by choice, but because of necessity and for their protection. In doing so, the Defendant has failed to distinguish asylum seekers from the wider category of individuals seeking entry clearance to the UK for economic purposes.
- The Defendant has failed to consider the impact that restricting the right to work will have on asylum seekers (particularly with regards to their mental well –being)
The Claimant was granted permission on all grounds by Mr Justice Pepperall, who observed that the Defendant had provided ‘no clear policy as to the circumstances in which such exceptional permission might be given’. He further observed that whilst the Defendant was entitled to take a restrictive approach to the grant of PTW for asylum seekers, a policy that limits this to employment on the SOL ‘arguably renders access to the labour market illusory’.
The legal team at Duncan Lewis Solicitors is made of Toufique Hossain
, Sulaiha Ali
, Lottie Hume
and Anna Spivack.
They have instructed Alex Goodman of Landmark Chambers.
If you have any queries regarding this challenge, please contact Sulaihaa@duncanlewis.com