Rostami, R (on the application of) v Secretary of State for the Home Department

Article 15(1) of the Charter does not confer a general right to work on non-EU nationals. Article 11 of the Reception Directive requires Member States to determine conditions for asylum seekers’ access to the labour market, but does not require unrestricted access or recognise a pre-existing right to work. A restriction to shortage occupations may therefore be lawful where it pursues legitimate labour-market objectives and is not manifestly inappropriate. Immigration Rules may contain bright-line conditions without a near-miss discretion. Restrictions of this kind do not, without more, engage Article 8 ECHR.

The claimant, an Iranian national and asylum seeker, challenged the restriction of his permission to work to occupations on the Shortage Occupation List. He relied on EU law, Article 8 ECHR and the failure to lay the relevant Immigration Rules before Parliament under the Immigration Act 1971. The claim was heard on a rolled-up basis after permission had been granted on the EU-law ground and refused on the Article 8 ground. The court also considered an application to amend the claim to add the parliamentary-procedure ground.

1. EU law. Article 15(1) of the Charter, read with article 15(2) and (3), does not confer a discrete right to work on non-EU nationals who happen to be in the EU. The Charter reaffirms existing rights and does not create new competences or rights.
2. Article 11 of the Reception Directive does not confer a general right of access to employment. Article 11(1) is framed as a power to exclude access for a period, while article 11(2) requires the Member State to decide the conditions for granting access. The reciprocal right is to have those conditions determined. Article 11(4) expressly permits priority to EU citizens and other persons with an existing right to work.
3. The Secretary of State therefore had a broad discretion, and also a duty, to set conditions. Proportionality applied, but the appropriate intensity of review was whether the measure was manifestly inappropriate having regard to the legitimate objective pursued. Restricting asylum seekers to shortage occupations protected the domestic labour market, reduced incentives for unfounded economic-migration claims and directed labour towards identified shortages. The restriction was necessary, appropriate and proportionate.
4. The Immigration Rules were valid bright-line rules. There was no general near-miss principle requiring individual discretion where an occupation was close to, but outside, the Shortage Occupation List.
5. The Article 8 ground failed. Following Negassi & Lutalo (CA), a foreign national without a Treaty, statutory or permitted right of access to the labour market had no Article 8 entitlement to work. Permission to proceed was refused.
6. The application to amend to add the Alvi ground was refused. Although the Shortage Occupation List was capable of being a rule regulating stay and therefore engaging section 3(2) of the Immigration Act 1971, the application was late and no substantive relief was available. The claim failed: the EU-law application was refused, permission on the Article 8 ground was refused, and permission to amend was refused.

This was a first-instance judicial review. The judgment does not state any subsequent appeal.