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

A policy governing permission to work for asylum seekers was not unlawful under Articles 8 and 14 of the European Convention on Human Rights because it did not expressly address the Secretary of State’s residual discretion in respect of dependants.

A dependant without an independent asylum claim has no underlying right of access to the labour market. The inability to work therefore lacks the required more-than-tenuous connection with the core values of Article 8. Such a dependant is also not in an analogous position to a principal asylum claimant, whose claim carries distinct legal protections and whose restricted access to work is conferred by the Immigration Rules.

In any event, the distinction pursued legitimate immigration-control and economic-well-being objectives and was proportionate.

The applicant, an Iraqi doctor, was the dependant on his wife’s pending asylum claim. He sought permission to work in the medical profession. The Secretary of State refused his request on 2 July 2021 because he was not the principal applicant on the asylum claim.

His wife was later recognised as a refugee and he received leave in line with her status, including permission to work. The Tribunal nevertheless determined the judicial review exceptionally because the issue could affect others.

The permitted ground alleged that the Secretary of State’s guidance, Permission to work and volunteering for asylum seekers, treated principal asylum claimants and their dependants incompatibly with Articles 8 and 14 of the European Convention on Human Rights. The central issue was whether the guidance’s lack of an express reference to residual discretion for dependants caused unlawful discrimination.

1. The claim was dismissed. The Tribunal held that the guidance would not inevitably operate incompatibly with Convention rights in a legally significant number of cases. Its omission of an express reference to residual discretion for dependants was not unlawful under Articles 8 and 14 of the European Convention on Human Rights.

2. The permitted challenge was confined to the Article 8 and Article 14 discrimination ground. The applicant could not use a post-defence reply or oral submissions to introduce an unpleaded common-law challenge to the guidance or a distinct challenge to the exercise of discretion.

3. Read technically, the guidance governed applications under paragraphs 360 to 360E of the Immigration Rules, which concern principal asylum claimants and make no provision for dependants. In practice, however, caseworkers were likely to understand the guidance as also addressing dependants, because it expressly discussed them and its wording had been replicated in the refusal decision. On that practical reading, there was a significant possibility that caseworkers would also understand the residual-discretion provisions as extending to dependants.

4. A dependant without an independent asylum claim had no underlying right of access to the labour market. Article 8 does not confer a general right to work. The inability to work was therefore outside the ambit of Article 8, unlike a restriction imposed on an asylum seeker to whom the state had conferred a qualified right to work.

5. Alternatively, dependants and principal asylum claimants were not in analogous situations. Principal claimants assert a protection claim and benefit from protections associated with its determination. A dependant without an independent claim does not share those features. In any event, the differential treatment pursued legitimate aims of immigration control and protection of the domestic labour market, and was proportionate in an area of high policy.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review of the Secretary of State’s refusal dated 2 July 2021. The Tribunal dismissed the claim: [2022] UKUT 299 (IAC).
• Permission stage: Bourne J granted permission only on the Article 8 and Article 14 ground. Permission was refused on the other grounds and was not renewed.