This case concerns paragraphs 360/360A of the immigration rules. These rules permit an asylum applicant to take up employment if (a) a decision has not been taken on the asylum application within one year and (b) the job is on the shortage occupation list (‘SOL’).
The Claimant applied for permission to work as a cleaner (a position which is not on the SOL). However, the Secretary of State did not exercise her residual discretion and so the request was refused.
The main issue which Mr Justice Bourne had to address was whether the Home Office’s policy (‘Permission to work and volunteering for asylum seekers, Version 8.0’)unlawfully discriminates against trafficking victims such as the Claimant. The High Court held that the policy is unlawful. This is because “it does not identify the discretion or the ECAT objectives which are relevant to its exercise” [78]. The policy was also held to be defective as it unlawfully discriminates under Article 14 ECHR in conjunction with Article 4 and/or Article 8. Again, that is because the policy does not refer to any discretion to depart from the immigration rules, so there was a “real risk that caseworkers will fail to have sufficient regard to the particular circumstances …” [106].