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Home Office’s Permission to Work policy declared unlawful following Judicial Review brought by a Victim of Trafficking (18 December 2020)

Date: 18/12/2020
Duncan Lewis, Main Solicitors, Home Office’s Permission to Work policy declared unlawful following Judicial Review brought by a Victim of Trafficking

In a judgment handed down today, Mr Justice Bourne has held that the Home Office’s policy ‘Permission to work and volunteering for asylum seekers, Version 8.0’ is unlawful in that it unlawfully discriminates against trafficking victims and fails to identify the Home Office’s discretion to depart from rule 360 of the Immigration Rules which restricts asylum seekers’ permission to work to jobs on the shortage occupation list.


Case Summary

Paragraph 360 of the Secretary of State for the Home Department’s (‘SSHD’) Immigration Rules provides that asylum seekers may apply for permission to work where the SSHD has delayed for over a year in determining their claims for protection. Where permission to work is granted, the Home Office’s policy mandates that it may only be granted subject to jobs listed on the “Shortage Occupation list”; a list of skilled, mainly post-graduate jobs comprising of only 1% of the jobs market (see judgment §31). As the judge held “It seems reasonable to assume that very few if any of the individuals who come to the UK in circumstances comparable to those of the Claimant will be able to occupy such positions”. This means that asylum seekers are simply unable to work whilst they experience delays, through no fault of their own, on their asylum and protection claims.

The Claimant who brought this challenge is someone who has been recognised by the Home Office to have been trafficked to the United Kingdom for the purposes of domestic servitude and sexual exploitation. She applied for asylum in 2018 shortly after she had escaped her trafficker, but after waiting over a year for a decision from the Home Office, she applied for permission to work as a cleaner, providing evidence that it would assist her psychological and social recovery and protection from further exploitation. Despite this, she was refused permission to work as a cleaner and told that she only had permission to work in jobs that were listed on the Shortage Occupation list, all of which she was unable to benefit from. In light of this, she proceeded to bring a claim for judicial review challenging the legality of the Home Office’s Permission to Work policy. She has since been granted refugee status in the UK as she is recognised as someone who faces persecution on return to her home country, and has recently accepted a job to become a carer.


Outcome

In allowing the claim for judicial review, the judge found that the Home Office’s permission to work policy is unlawful in that:

  • It does not identify that the SSHD has discretion to depart from paragraph 360 of the Immigration Rules and also fails to identify the objectives of the Trafficking Convention which are relevant to the exercise of that discretion; and

  • By reason of the same omissions, the policy infringes ECHR Article 14 read in conjunction with Article 4 and/or Article 8 in that it fails to distinguish sufficiently between asylum seekers who are potential or actual victims of trafficking and the generality of asylum seekers.



Sulaiha Ali comments on the judgment:

“We welcome the judge’s findings that the Home Office’s permission to work policy is unlawful. Providing asylum seekers with the right to work whilst their claims are pending gives them a route out of poverty and destitution and an opportunity to restore their dignity and self-esteem by enabling them to provide for themselves and their families. It is also critical to the psychological and social recovery of survivors of trafficking and helps to protect them from being subject to further exploitation. We hope that the change in policy enables asylum seekers and trafficking survivors to be able to benefit from the permission to work policy, as opposed to only having an illusory right to work in jobs which they will never be able to do.”


Representation

The Claimant is represented by Toufique Hossain, Sulaiha Ali, Lottie Hume and Anna Spivack at Duncan Lewis Solicitors and Counsel Alex Goodman of Landmark Chambers.


Read reported judgment HERE




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