UK: High Court rules Home Office’s work policy for asylum seekers as unlawful and against the best interest of the child

Monday, October 4, 2021

On 4th October, the UK High Court gave its judgment in a case concerning a 24-year-old Honduran citizen who claimed asylum in the UK with his wife and then 21-month-old daughter in 2018. Under UK immigration law (Immigration Rules, Paragraph 360), asylum seekers can apply for permission to work if a first instance decision on their asylum application has not been given within a year of making their claim. In January 2020, the applicant was granted this permission pending the determination of his asylum application. The permission is heavily restricted to highly skilled and specialised jobs and cannot include self-employment or entrepreneurial work. The strict requirement meant that the applicant could not take up local jobs which were willing to hire him and continued to live on a small weekly allowance provided by the Home Office to asylum seekers.

In June 2020, the applicant instituted legal proceedings to ask the Secretary of State to exercise their residual discretion to dis-apply the strict conditions, however this was declined without reasoning. This decision was subsequently challenged before the High Court. The High Court looked at section 55 of the Borders, Citizenship and Immigration Act, which sets out that the duty is on the Secretary of State to safeguard and promote the welfare of children in the UK. This duty was subsequently analysed alongside the Work Policy (Permission to work and volunteering for asylum seekers) which lays out criteria for considering applications for permission to work. The guidance mentions that it is “very unlikely that a decision to refuse permission to work for an adult would adversely impact on a child”.

Justice Linden found this to be inaccurate and misleading and noted that it could result in authorities making decisions which are not in accordance with the previously outlined section 55 and the best interests of the child. He furthermore reasoned that this section failed the lawfulness of official policy documents test under both section 55 and domestic case law, which has held that “if a policy directs state actors to act in a way which contradicts the law it is unlawful.” Justice Linden therefore upheld the second ground of the case that the Work Policy fails to comply with section 55 of the Borders, Citizenship and Immigration Act 2009 by not ensuring that those who exercise immigration functions have regard to the need to safeguard and promote the welfare of children.

Photo: Jeff Djevdet, February 2016, Flickr (CC)

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.