LJ (Kosovo), R (On the Application Of) v Secretary of State for the Home Department

A residual discretion must be exercised when deciding whether an asylum seeker who may be a trafficking victim should receive permission to work outside the Shortage Occupation List. Published guidance is unlawful if it presents the restriction as mandatory and omits that discretion and the relevant objectives of the Council of Europe Convention on Action against Human Trafficking. A positive reasonable-grounds decision does not, before a conclusive-grounds decision, create a positive Convention obligation to provide labour-market access. The underlying Immigration Rule remains lawful because it can be operated proportionately through residual discretion. An individual decision is not unlawful where the claimant’s circumstances were considered, but guidance may be unlawful where it creates a real risk of unlawful decisions in a significant number of cases.

The claimant, a Kosovan national and alleged trafficking victim, sought judicial review of the Shortage Occupation List restriction imposed under paragraph 360A of the Immigration Rules, the related published guidance, and the refusal to permit her to work as a cleaner outside the List. She had received a positive reasonable-grounds decision, but at the relevant time had no conclusive-grounds decision and her asylum claim remained outstanding. By the hearing she had been recognised as a trafficking victim and refugee, so the claim was largely academic, but the court proceeded because the issues were important and affected a significant number of people. The central questions were whether the rule, guidance and individual decision complied with ECAT, the Convention rights and common-law requirements of clarity and transparency.

The claim was partly successful. Ground 1 failed. Ground 2 succeeded. Ground 3 succeeded against the guidance, but failed against paragraph 360A and the individual decision.

1. ECAT and access to work. Article 12.4 concerns access to the labour market for victims lawfully resident following a positive conclusive-grounds decision and residence permit. It does not impose a positive obligation to give unrestricted labour-market access to a person with only a positive reasonable-grounds decision and no conclusive-grounds decision. The Defendant therefore did not err by declining to treat such access as required by ECAT article 12.
2. Rule 360A and individual discretion. Although paragraph 360A is expressed in mandatory terms, the parties accepted that the Defendant retained a residual discretion to permit wider employment in individual cases. The rule was not an unlawful bright-line rule because that discretion enabled proportionate operation. The decision-maker considered delay, mental-health evidence and the trafficking circumstances. The decision was therefore neither irrational nor a fetter of discretion, and it did not infringe Article 8 or Article 14.
3. Published guidance. The guidance was defective because it stated the Shortage Occupation List restriction without identifying the residual discretion or explaining how it should be exercised. Caseworkers had to consider the individual facts and the primary objectives of ECAT, including assistance in victims’ physical, psychological and social recovery. The omission created a real risk of unlawful decisions in a significant number of cases. A declaration was made that the guidance was defective and unlawful.
4. Article 14. The challenge was within the ambit of Article 8 because a qualified right to work had a more than tenuous connection with private life, including social relationships, independence and self-esteem. It was also within the ambit of Article 4. Potential victims of trafficking constituted a qualifying status. The absence of guidance directing caseworkers to consider their distinct circumstances created a Thlimmenos-type risk of unjustified differential treatment.

The appropriate changes to the guidance were left to the Defendant. The Defendant was ordered to pay the claimant’s costs.