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GIVEN NGAIHAPE KAMUSUVISE AGAINST SECRETARY OF STATE FOR THE HOME DEPARTMENT [2022] ScotCS CSOH_22 (24 February 2022)
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[2022] ScotCS CSOH_22
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OUTER HOUSE, COURT OF SESSION
[2022] CSOH 22
P690/21
OPINION OF LORD BRAILSFORD
In the petition
GIVEN NGAIHAPE KAMUSUVISE
Petitioner
against
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Petitioner: Caskie; Drummond Miller LLP for AJ Bradley Solicitors
Respondent: Massaro; OAG
24 February 2022
Introduction
[1]
The petitioner is an asylum seeker. He seeks reduction of a decision by the Secretary
of State for the Home Department dated 26 May 2021, in which she granted his application
for permission to work, subject to the restriction that he can only work in jobs included on
the Shortage Occupation List (SOL). That decision also amounted to an implicit refusal of
the petitioner's request to be granted unrestricted permission to work. The respondent is
the Secretary of State who is represented by the Advocate General for Scotland.
2
Background
[2]
In April 2019, the petitioner applied for asylum in the UK. He is a Namibian
national. It is not necessary to recite the factual background giving rise to his asylum
application, save for that he claims to have been a victim of torture, physical and sexual
abuse in his home country. The petitioner applied to the respondent for permission to work
on 10 March 2021. Ordinarily, applications for permission to work are granted subject to the
restriction that the individual can only take up employment in jobs included on the SOL.
However, the petitioner asked the respondent to exercise her "residual discretion" to grant
him unrestricted permission to work, with the effect that he could work in jobs not included
on the SOL. The reasons for this request were stated as follows:
"Our client is finding failure to work is impacting on his mental health and his
mood. He worries about his case. He is [...] not able to live openly in Namibia. He
was assaulted there. He bears torture marks as per the enclose [sic] medical report
from Dr Dignon. It would help him integrate were he able to obtain work. He does
not have qualifications which would enable him to apply for a job on the Shortage
Occupation List. Kindly exercise your discretion and grant permission to work on
jobs outwith the SOL. This would help him in that it would be easier for our client to
find work if he was given permission to apply for jobs outside the SOL. He believes
he would be a lot happier and less anxious were he afforded permission to work in
occupations outside the SOL. In our submission, as per IJ (Kosovo) v. SSHD
[3]
Appended to the application was a medical report by Dr Neil Dignon, Consultant in
Emergency Medicine. The report was prepared just less than two years prior to the
petitioner's application and reported that the petitioner suffered from various mental health
issues which were said to relate to his claimed experiences in Namibia.
[4]
The respondent wrote to the petitioner on 26 May 2021 granting him permission to
work, however this was restricted to jobs on the SOL. The decision prima facie does not
engage with the petitioner's request for the respondent to exercise her discretion to grant
permission to work outside the SOL. The petitioner's request is neither expressly rejected,
3
nor are reasons provided by the respondent for deciding not to exercise her discretion. The
letter purports to be, in effect, a pro forma response granting permission to work and setting
out the various conditions that apply.
[5]
In response, on 22 June 2021, the petitioner, via his agents, sent a letter to the
respondent pursuant to Court of Session Practice Note No. 3 of 2017 ("the Pre-Action
Protocol letter"). The petitioner requested that the respondent reconsider her decision of
26 May within two weeks, failing which he would raise judicial review proceedings to
challenge it. He argued that the decision was unlawful because it failed to have regard to
the terms of the aforementioned judgment in IJ (Kosovo) v Secretary of State for the Home
Department [2021] 1 WLR 2923. In particular, the respondent failed to consider the particular
circumstances of the petitioner viz the terms of the medical report, his mental health
problems and the benefit that it was said permission to work in jobs outside the SOL would
have on him.
[6]
On 11 August 2021, the respondent responded to the petitioner's Pre-Action Protocol
letter. She advised that enquiries were made with the relevant team of the Home Office who
had considered the application. They confirmed that:
"...full consideration has been given as to whether it is appropriate to exercise
discretion in the applicant's case, and grant permission to work (PTW) outside of the
SOL. In your client's particular case, there is nothing in his request that the decision
to restrict work to the SOL is unjustifiable. There is very little if nothing at all to
distinguish him from other asylum seekers currently awaiting a decision on
international protection. Taking all of the above and the representations made on
your client's behalf into consideration in the round, PTW unrestricted to the SOL is
refused."
[7]
Judicial review proceedings were raised on 3 September 2021, which it is not in
dispute came eight days outwith the three month time limit prescribed by section 27A of the
Court of Session Act 1998. Having heard the parties at an oral hearing on permission, I was
4
satisfied that the petition had a realistic prospect of success in terms of section 27B of
the 1998 Act and granted permission for the petition to proceed. I informed the parties that
I did not consider that the time bar point should constitute an impediment at the permission
stage. However, the respondent's time bar plea remains a live issue upon which a
determination must be reached.
Legal framework
[8]
Those without a right of abode in the UK are only entitled to work with the
permission of the Secretary of State: section 1(2) of the Immigration Act 1971. It is not in
dispute that, generally, asylum seekers are not permitted to work whilst decisions on their
asylum applications remain outstanding.
[9]
However, once an asylum application has been outstanding for a year, it is open to
an asylum seeker to apply to the Secretary of State for permission to work. This is set out in
paragraph 360 of the Immigration Rules:
"360 An asylum applicant may apply to the Secretary of State for permission to take
up employment if a decision at first instance has not been taken on the applicant's
asylum application within one year of the date on which it was recorded. The
Secretary of State shall only consider such an application if, in the Secretary of State's
opinion, any delay in reaching a decision at first instance cannot be attributed to the
applicant."
[10]
Any decision by the Secretary of State to grant permission to work will normally be
subject to restrictions as contained in paragraphs 360A-B:
"360A If permission to take up employment is granted under paragraph 360, that
permission will be subject to the following restrictions:
(i)
employment may only be taken up in a post which is, at the time an
offer of employment is accepted, included on the list of shortage occupations
published by the United Kingdom Border Agency (as that list is amended
from time to time);
(ii)
no work in a self-employed capacity; and
(iii)
no engagement in setting up a business.
5
360B If an asylum applicant is granted permission to take up employment under
paragraph 360 this shall only be until such time as his asylum application has been
finally determined"
[11]
It is the restriction in paragraph 360A(i) that the court is concerned with in the
present proceedings. In R (Rostami) v Secretary of State for the Home Department
and nature of the SOL:
"44. The `list of shortage occupations published by the UK Border Agency' (the SOL)
which informs the restriction on employment set out in paragraph 360A(i) (for initial
applicants) and 360D(i) (for subsequent applicants) is a reference to a list of jobs
originally developed under the work permit arrangements, and later as part of the
eligibility criteria for Tier 2 (General) Migrants of the Point Based System. Under
that system, skilled workers may migrate to the UK for up to three years to
undertake work for employers with a sponsorship licence, to do jobs in `shortage
occupations', i.e. jobs that cannot readily be filled from the resident labour market.
Other than ministers of religion, elite sportspeople and skilled workers moving from
an overseas branch of a company to a UK branch, under the Points Based System
only those who are able to undertake such employment are able to come to the UK
for the specific purpose of work.
45. The SOL is prepared by the Secretary of State following advice from the
Migration Advisory Committee (`the MAC'), an independent non-departmental
public body comprising labour market economists and migration experts,
commissioned by the UK Government to review the UK labour market to identify
where labour market shortages exist in the UK (i.e. as to where there are occupations
in which it is not possible to fill vacancies by recourse only to UK nationals, other EU
citizens and others with a right to work in the UK), using published methodology
which is not challenged in these proceedings. Such occupations are recommended
for designation as shortage occupations. It recommended its initial list in
September 2008, and has reviewed that list regularly since. The MAC having made
its recommendations, the Secretary of State determines the final list. Prior to
July 2012, the SOL was incorporated into guidance issued by the Secretary of State,
namely the Occupation Codes of Practice: since then, it has been incorporated
directly into the Immigration Rules as tables set out in Appendix K (see
paragraphs 114 and following below)."
[12]
The nature of the jobs included on the SOL is such that it is likely that only very few
asylum seekers will possess the skills or qualifications necessary to occupy positions listed
on it.
6
[13]
It is not in dispute that the Secretary of State's decision on any application under
paragraph 360 of the Immigration Rules is a discretionary one. Moreover, the Secretary of
State exercises a "residual discretion" meaning discretion to grant permission to work
outside the Immigration Rules. The Secretary of State's current policy entitled "Permission
to Work and volunteering for asylum seekers" details the basis of this "residual discretion"
at page 16:
"Where the Immigration Rules are not met, it will be justifiable to refuse an
application for permission to work unless there are exceptional circumstances raised
by the claimant. If caseworkers consider that the circumstances of an application are
exceptional they should refer the matter to a technical specialist to review whether
the matter should be considered on a discretionary basis (under our residual
discretion flowing from Section 3 of the Immigration Act 1971). Such discretion
would allow a grant of permission to work, notwithstanding the requirements of the
Immigration Rules. What amounts to exceptional circumstances will depend upon
the particular facts of each case. A grant of permission to work on a discretionary
basis is expected to be rare and only in exceptional circumstances."
[14]
The Secretary of State's policy was most recently updated on 4 May 2021 in light of
the decision of Bourne J in IJ (Kosovo) declaring it unlawful.
Submissions
(i)
Petitioner
[15]
The petitioner's submissions comprise four main strands. First, he invites the court
to exercise its discretion and extend time for the petition to be lodged. The petitioner relies
on various factors in support of his submission viz. (a) the delay in lodging the petition was
short being only eight days, (b) it was due to a simple oversight of the petitioner's agent
which cannot be attributed to the petitioner, (c) there is no, or little, prejudice to the
respondent whilst the potential prejudice to the petitioner is significant, (d) the petition has
substantial merit and (e) the alternative remedy which the respondent suggests, a claim by
7
the petitioner against his agent for compensation for loss of chance, is not a practical
proposition.
[16]
Second, the respondent erred procedurally by failing to refer his case to a technical
specialist. Where exceptional circumstances are raised by an applicant for permission to
work, the respondent's policy of 4 May requires that the application be referred to a
technical specialist "to review whether the matter should be considered on a discretionary
basis" (as quoted above). There is nothing in the respondent's decision or response to the
Pre-Action Protocol letter to suggest that the petitioner's case was referred to a technical
specialist. The respondent's consideration of his application therefore fell at the first hurdle.
As a relevant aside, the petitioner contends that the policy and the Immigration Rules
continue to be unlawful, but he does not require to advance a case that goes beyond his
own.
[17]
Third, the respondent gave inadequate reasons for her decision. She did not engage
with the petitioner's representations. Whilst the relevant team state that they gave full
consideration to the petitioner's circumstances, the reasons provided are wholly inadequate.
The response to the Pre-Action Protocol letter does not cure this deficiency. The respondent
asserts that there was little or nothing to distinguish the petitioner's case from other asylum
seekers without specifying why this is the case.
[18]
Fourth, the petitioner's circumstances are exceptional and ought to have led to a
grant of permission to work without restriction to the SOL. There are two factors which
make the petitioner's case exceptional, (a) delay and (b) his mental health problems. Delay
relates to the two-year delay there has been in issuing a decision on his asylum application.
That is longer than the average timescale, albeit it is difficult to ascertain the "norm" given
the significant backlog in asylum decisions. The petitioner's mental health problems are
8
supported by his history of torture and by the terms of the medical report. He pointed out
that his inability to work impacted his mental health and it is within the respondent's
knowledge that relatively few asylum seekers claim their mental health is materially
impacted by this. As to the assessment of "exceptionality", that term must be properly
understood as meaning out of the ordinary: Huang v Secretary of State for the Home
(ii)
Respondent
[19]
The respondent maintains the time bar plea. She argues that the court should not
extend time for the following reasons. First, the petitioner's agents ought to have been
aware of the applicable time limits given (a) they specialise in immigration work and
(b) they have knowledge of the decision, it having been sent to their office. Second, the
respondent reminded the petitioner of the deadline in her response to the Pre-Action
Protocol letter and, in any event, a response was not required before the petition could be
lodged. Third, the petitioner's reasons for missing the deadline lack specification. Fourth,
the petition does not concern an issue related to the petitioner's asylum application or
human rights and he has a potential remedy available against his agent for monetary
compensation for loss of chance.
[20]
The respondent also relies on the High Court's decision in Rostami. She advances six
propositions with reference to it. First, it is for the UK to determine the basis upon which
foreign nationals should be allowed to work on its territory (paragraphs 23 and 50). Second,
the respondent has a wide margin of discretion (paragraphs 23-24). Third, there are
powerful public interest factors behind the SOL, being to ensure asylum seekers only have
access to jobs the labour market is unable to fill and that there is no incentive for
9
unmeritorious asylum claims by only giving asylum seekers access to the same labour
market as economic migrants (paragraphs 81-83). Fourth, the policy giving effect to
paragraph 360 was given careful consideration by the executive (paragraph 84). Fifth, the
UK is not unique in restricting asylum seekers' access to the labour market (paragraph 85).
Sixth, there is no evidence that the SOL has a "real adverse impact" on asylum seekers
distinct from the asylum process more generally (paragraphs 90(i) and 92(xii)). The upshot
of this is that the respondent's policy is necessary and proportionate. The respondent
considers that the petitioner has not challenged the lawfulness of the policy and rather only
challenges the lawfulness of the 26 May decision.
[21]
The decision of 26 May should be read with the respondent's Pre-Action Protocol
response. Adequate reasons are provided therein in the following terms: "there is very little
if nothing to nothing at all to distinguish [the Petitioner] from other asylum seekers
currently awaiting a decision on international protection". The respondent's reasons may be
brief, but so was the petitioner's application. A reasons challenge can only succeed where
the informed reader is left in real and substantial doubt as to the reasons for the decision and
what was taken into account in reaching it: MS YZ v Secretary of State for the Home
Department [2017] CSIH 41 at paragraph 44. The reasons the respondent gave were an
application of her policy being whether the petitioner's case was "rare or exceptional".
The conclusion she reached was open to her and a similar reasons challenge was recently
rejected by the High Court (R (Cardona) v Secretary of State for the Home Department
[22]
Esto there is an error in the respondent's reasoning, it is not material. The petitioner
does not contend that the respondent's policy is unlawful and the particular circumstances
of his case are not "rare or exceptional". The effect of delay meant that paragraph 360
10
applies to the petitioner's case. It does not make his case exceptional, particularly given
there is no time limit for an immigration decision: EB (Kosovo) v Secretary of State for the
Home Department [2009] 1 AC 1159 at paragraph 13. The petitioner's assertion that his
inability to work has impacted his mental health is not supported by the medical evidence.
It is likely attributable to a number of factors, particularly given most asylum seekers will
experience such issues whilst awaiting a decision. IJ (Kosovo) is distinguishable given the
petitioner does not claim to be a victim of trafficking and his application for permission to
work was decided under the updated policy introduced in light of the decision in IJ (Kosovo).
The respondent was entitled to conclude as she did on the information provided.
Analysis and reasons
Time bar
[23]
The parties agree that the petition is prima facie time barred. The question that I
must determine is whether, having regard to all the circumstances, it would be just and
equitable to extend time. The circumstances I consider most pertinent to this question are
as follows. First, the challenge is not limited to a reasons challenge. The petitioner also
contends that (a) his circumstances ought to have been considered exceptional (an
irrationality challenge) and (b) the respondent's policy and paragraph 360 are unlawful
(an illegality challenge). The petition therefore potentially raises a point of general
importance and should not be left unresolved: R v Secretary of State for the Home Department,
ex p Ruddock [1987] 1 WLR 1482. Second, the petitioner's alternative remedy faces significant
practical difficulties. Third, the respondent does not dispute that she faces limited, if any,
prejudice if the petition is allowed to proceed. Having regard to these circumstances, I am
satisfied that time should be extended.
11
Merits
[24]
In relation to the petitioner's reasons challenge, I must first determine whether the
respondent's response to the Pre-Action Protocol letter is to be considered alongside her
26 May decision. I consider the position to be clear. The petitioner makes no averments
why the response should not form part of the reasons for the decision. If he had, I would
have reached the same conclusions in light of the observations of Lord Reed in Chief
Constable, Lothian and Borders Police v Lothian and Borders Police Board 2005 SLT 315 at
paragraph 65. Whilst the reasons given in the response are late, they are consistent with the
26 May decision insofar as they maintain that the petitioner should be restricted to the SOL.
They were also provided directly from the decision-makers of the application through the
respondent. Most significantly, the reasons were given prior to proceedings being raised.
[25]
Having regard to the reasons given at para [6] above, I am satisfied that they are
sufficiently clear and intelligible to be adequate. The petitioner does not dispute that the
respondent is entitled to state her reasons briefly: South Bucks District Council v Porter
(No 2) [2004] 1 WLR 1953 at paragraph 35. The respondent concluded that "there is very
little if nothing at all to distinguish the petitioner's case from other asylum seekers". It is
clear from that statement that the respondent did not consider the petitioner's circumstances
to be rare or exceptional, a test that the petitioner was well aware he had to meet. The
reasons given by the respondent do not leave the informed reader in real or substantial
doubt as to the reasons for her decision: MS YZ (supra) at paragraphs 44-45.
[26]
There were no procedural failures as claimed by the petitioner. The passage from the
respondent's policy he relies on in support of that proposition is clear that referral to a
technical specialist will only occur where the caseworker assessing the application considers
12
there are exceptional circumstances raised therein. In the instant case, the caseworker was
not satisfied that the petitioner's circumstances were exceptional. There was therefore
nothing to trigger referral to a technical specialist.
[27]
On the basis that I have found that the respondent gave adequate reasons for her
decision, the petitioner can only succeed if he can demonstrate that the respondent's
conclusions were irrational or perverse. For the following reasons, I find that he is unable to
do so. Delay has been advanced as an exceptional circumstance in these proceedings, but it
was not included in the petitioner's application for permission to work. I must review the
respondent's decision based on the information before her at the time of making her
decision. Even if it had been, the petitioner's position regarding delay is inconsistent. On
the one hand, he submits that the "norm" for a decision cannot be ascertained (Statement 16
of the Petition), and on the other, says that the petitioner's delay is long "comparative to the
average" without specification (paragraph 28(b) of Note of Argument).
[28]
In his application, the petitioner only relied on his history of torture and mental
health issues. The petitioner no longer relies on his history of torture as an exceptional
circumstance. Instead, he says this is relevant in supporting his claim to suffer from mental
health issues. As the petitioner relies on his mental health issues, the difficulty the petitioner
faces is that the medical evidence does not support that this has any relation to his ability or
inability to work. The respondent was entitled to find that this was an unsubstantiated
assertion. The petitioner's averment at Statement 16 of the Petition that relatively few
asylum seekers have identified the absence of work as materially impacting their mental
health is also unsubstantiated. In sum, the respondent was entitled to conclude as she did
on the information presented with the application.
13
[29]
I am satisfied that the petitioner would be unable to succeed irrespective of whether
the Immigration Rules included a reference to the respondent's residual discretion. It is
therefore of no consequence to his case whether paragraph 360 of the Immigration Rules is
unlawful. In any event, the petitioner has not established that paragraph 360 is unlawful.
The court in IJ (Kosovo) acknowledged that the respondent's residual discretion allows her to
decide cases outside the Immigration Rules. The petitioner has not demonstrated why it is
necessary for the Immigration Rules to reflect this and the court in IJ (Kosovo) left it to the
respondent to amend her policy as she saw fit (paragraph 71). The case of R (Alvi) v
Secretary of State for the Home Department (Joint Council for the Welfare of Immigrants
intervening) [2012] 1 WLR 2208 does not assist the petitioner. It concerned wholly different
circumstances from the instant case.
[30]
For completeness, whilst I note brief reference to article 8 ECHR in the petitioner's
pleadings, I do not understand him to be arguing that his article 8 rights have been
breached. If he had done so, I would not have been satisfied that he could succeed on this
ground either.
[31]
I shall accordingly uphold the respondents' fourth and fifth pleas-in-law and refuse
the prayer of the petition.
