C6, R (on the application of) v The Secretary of State for the Home Department

A published policy governing a statutory discretion is unlawful if, in practice, it is a blanket rule which admits no possibility of exception. A decision-maker may retain a residual discretion to depart from a bright-line immigration rule in an exceptional case, but operational guidance for officials must not conceal or exclude that discretion.

Where an applicant advances relevant, potentially exceptional circumstances, a refusal must genuinely consider them. A previous decision cannot cure a later decision which neither incorporates its reasoning nor addresses new and material matters. The court will not refuse relief under section 31(2A) where it cannot say that a lawful reconsideration would highly likely have produced no substantially different outcome.

The applicant, an Afghan national whose British citizenship had been revoked on national-security grounds, had a protection appeal pending before SIAC. SIAC bail conditions restricted his daily life, although they had been relaxed sufficiently to make a proposed delivery-driver job potentially practicable.

The Secretary of State refused permission to take that non-shortage-occupation role under the policy Permission to work and volunteering for asylum seekers. The applicant sought judicial review of that decision and of the policy. He contended that the policy unlawfully fettered discretion and that the refusal had ignored his particular circumstances, including health, debt, restrictive bail conditions and the long history of his protection claim.

1. Judicial review was granted on Grounds 1 and 4. The February 2020 refusal was unlawful because it failed to consider the applicant's submissions that discretion should be exercised outside the shortage-occupation restriction. It also proceeded on the conceded factual error that he was ineligible even for permission to work in a shortage-occupation role.

2. The applicant's circumstances were plainly relevant. They included his restrictive bail conditions, inability realistically to train for a shortage-occupation role, limitations on internet use and job applications, debt, health, former British citizenship, and the unusual and prolonged history of his protection proceedings. The earlier November 2019 decision could not cure the defect. It did not purport to be incorporated, and it could not address the additional matters raised in the later application.

3. Relief was not barred by section 31(2A) of the Senior Courts Act 1981. The Tribunal could not conclude that a lawful consideration would highly likely have made no substantial difference. It was also inappropriate to anticipate the Secretary of State's assessment of any national-security implications of the proposed employment.

4. The Work Policy was lawful only insofar as it was not treated as excluding exceptions. Its text gave officials no route to consider departure from the requirement that permitted work be on the shortage occupation list. It was therefore a rigid blanket policy and unlawful to that extent. The Tribunal made a declaration accordingly.

5. The policy did not, however, have to prescribe abstract criteria for exceptional cases. Such criteria concerned high policy and could not readily anticipate unusual cases. Ground 2 therefore failed. Ground 3 also failed: the pandemic did not require a proactive exception for delivery drivers.

6. Following R (oao Negassi and Lutalo) v Secretary of State for the Home Department [2013] EWCA Civ 151, Article 8 was not engaged by the restriction on this foreign national's access to the labour market. Ground 5 failed. Ground 6 was dismissed because the unlawful decision would be reconsidered and no further Article 14 analysis was necessary.

Not stated in the judgment as an appellate history. The judgment records that the applicant had a protection appeal pending before SIAC and that SIAC had varied his bail conditions before this judicial-review application.