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

It is common ground between the parties (and uncontroversial) that, as a matter of domestic law, a State has the power and right to determine which foreign nationals should be allowed to work in its territory, and conditions upon which such employment will be allowed. Decisions in exercise of that power involve various competing policy issues such as the need to protect the domestic labour market and the interests of those with a right to seek employment in it; and the benefits of introducing into that market workers with skills in respect of which there may be a shortage. In addition, in the case of an asylum seeker (who cannot leave or be required to leave the UK whilst his application is being determined), they include the potential burden on public finances in terms of welfare benefits if the applicant does not work whilst his application is being determined; the need to avoid encouraging asylum applications from economic migrants; and, not least, the rights and interests of the applicant. Some of these policy issues become even more pointed if employment is scarce, or where the availability of public funds is particularly limited; and some become more acute where there are very significant delays in ultimately determining the refugee status of an applicant. The public interest factors have to be balanced, with the rights and interests of relevant individuals, in a sophisticated exercise of judgment quintessentially for the executive of the relevant state.

In a field such as this, the State has a particularly wide area of discretion in exercising its political judgment. The reason for that was identified by the European Court of Human Rights in Stec v United Kingdom (2006) 43 EHHR 47, in the context of the ECHR:

“… a wide margin is usually allowed to the State under the [ECHR] when it comes to general measures of economic or social strategy…. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds and the court will generally respect the legislature’s policy choice unless it is ‘manifestly without reasonable foundation’”.

That justification for judicial restraint applies equally to domestic judges. However, wide as that discretion may be, so far as the UK is concerned, its exercise is now informed by EU law.

The Reception Directive is one of a number of European measures designed to create a Common European Asylum System. Its purpose is to establish minimum standards for the reception of asylum seekers within the EU (recital (4)).

Before dealing with the provisions of the Reception Directive itself, it would be helpful to consider the Charter and its role.

The Charter has its origins in the decision of the European Court of Justice in 1996, that the European Community Treaty as it then stood did not allow the Community as it then was to accede to the ECHR (Opinion 2/94 on Accession by the Community to the ECHR [1996] ECR I-1759). Instead of accession, a separate Charter of Fundamental Rights was therefore proposed, a proposal which was not greeted with universal acclamation, or even a consistent approach, by Member States.

However, as made clear in its Preamble, the Charter was intended to emphasise and publicise the “universal values of human dignity, freedom, equality and solidarity”, by recognising and reaffirming existing rights deriving particularly from the Treaties (including the ECHR), the European Courts and constitutional traditions common to Member States. As such, it was normative: it was not itself intended to create new powers and rights, or to affect the scope of European competence as set out in the Treaties, or to affect the principle of subsidiarity. Thus, article 51 of the Charter provides, under the heading “Scope”:

“1.

The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers.

2.

This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties.”

As the Explanatory Notes to that article say:

“Paragraph 2, together with the second sentence of paragraph 1, confirms that the Charter may not have the effect of extending the competences and tasks which the Treaties confer on the Union. Explicit mention is made here of the logical consequences of the principle of subsidiarity and of the fact that the Union only has those powers which have been conferred upon it. The fundamental rights as guaranteed in the Union do not have any effect other than in the context of the powers determined by the Treaties. Consequently, an obligation, pursuant to the second sentence of paragraph 1, for the Union’s institutions to promote principles laid down in the Charter may arise only within the limits of these same powers.

Paragraph 2 also confirms that the Charter may not have the effect of extending the field of application of Union law beyond the powers of the Union as established in the Treaties…..”

Therefore, the Charter does not purport to confer any new powers on the European institutions, or obligations on Members States: rather, it is designed to inform the exercise of the powers of those institutions within their areas of competence, and the exercise of obligations and powers of Members States within those same areas.

Whilst article 51 concerns the scope of the Charter, article 52 concerns the scope of guaranteed rights under the Charter, in the following terms:

“Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

Rights recognised by this Charter which are based on the Community Treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by those Treaties.”

Because of Member States’ ambivalence, when the Charter had been drafted and became available in 2000, it was neither incorporated into the Treaties nor was adopted it by Member States: it was simply proclaimed by the European Parliament, Council of Ministers and European Commission. As such, it was not legally binding, although being in fact treated by the European Courts as strongly persuasive. However, in the light of the collapse of the more ambitious plan to have a European Constitutional Treaty and as a result of the Treaty of Lisbon (signed in December 2007 and, having been ratified by all Member States, coming into force on 1 December 2009), article 6(1) of the Treaty on European Union has been amended to provide:

“The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.

The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties….”

Thus, the Charter has been attributed legal force throughout the territories of the EU, including the UK.

However, the second paragraph of article 6(1) of the Treaty on European Union stresses that the Charter, still, does not create new rights. That was reinforced by Protocol (No 30) on the application of the Charter to Poland and the UK, which was annexed to the amended Treaty. The Protocol provides (so far as relevant to this claim):

“Article 1

1.

The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the UK, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the UK are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.

2.

…

Article 2

To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the UK to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the UK.”

In NS v Secretary of State for the Home Department [2011] EUECJ C-411/10 (at [165]-[177]), the Court of Justice of the EU confirmed that (i) although the Protocol was promoted by Poland and the UK, these provisions apply to all Member States; (ii) these provisions do not provide an opt-out for Poland and the UK; and (iii) the Charter does not create rights and obligations not found elsewhere. The Grand Chamber said (at [169]):

“Article 1(1) of Protocol No 30… makes clear that the [Charter] does not have the effect of either shifting powers at the expense of the UK or Poland or of extending the field of application of EU law beyond the powers of the [EU] as established in the Treaties. Article 1(1) of Protocol No 30 thus merely reaffirms the normative content of article 51 of the [Charter], which seeks to prevent precisely such an extension of EU powers or of the field of application of EU law…”.

The Court of Justice has recently strongly endorsed the proposition that the Charter does not create rights in Ymeraga v Ministre du Travail, de l’Emploi et de l’Immigration [2013] EUECJ C-87/12 (8 May 2013), at [40].

So far as employment specifically is concerned, in the section on “Freedoms” and under the heading “Freedom to choose an occupation and right to engage in work”, article 15 of the Charter provides:

“1.

Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation.

2.

Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State.

3.

Nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union.”

Article 15(2) of course reflects article 1(2) of EU Regulation No 492/2011 on Freedom of Movement for Workers within the Union, which gives EU citizen workers the right “to take up available employment in the territory of another Member State with the same priority as nationals of that State”. I shall come back to article 15 of the Charter shortly.

However, returning for the time being to the Reception Directive, it seeks to ensure full respect for and protection of human dignity as guaranteed by article 1 of the Charter (recital (5)). Recital (7) states as follows:

“Minimum standards for the reception of asylum seekers that will normally suffice to ensure them a dignified standard of living and comparable living conditions in all Member States should be laid down.”

The Reception Directive proceeds to set those minimum standards by imposing obligations on host Members States, for the benefit of individual asylum seekers (article 1). Another important purpose of the harmonisation of minimum standards through the Directive is to limit secondary movement of asylum seekers around the territories of the EU (recital (8)).

In relation to access to the job market, article 11 provides:

“1.

Member States shall determine a period of time, starting from the date on which an application for asylum was lodged, during which an applicant shall not have access to the labour market.

2.

If a decision at first instance has not been taken within one year of the presentation of an application for asylum and this delay cannot be attributed to the applicant, Member States shall decide the conditions for granting access to the labour market for the applicant.

3.

Access to the labour market shall not be withdrawn during appeals procedures, where an appeal against a negative decision in a regular procedure has suspensive effect, until such time as a negative decision on the appeal is notified.

4.

For the reasons of labour market policies, Member States may give priority to EU citizens and nationals of States parties to the Agreement on the European Economic Area and also to legally resident third-country nationals”

The UK was required to comply with the Reception Directive from February 2005, prior to which, although an asylum seeker could apply for permission to work and such applications were considered on an individual basis, permission was granted only in “exceptional” cases. The obligations imposed by the Directive were transposed into domestic law by the insertion of a new part 11B into the Immigration Rules, by a Statement of Changes in the Rules (HC 194). Both the Immigration Rules themselves, and the Statement of Changes, were made by the Secretary of State under section 3(2) of the Immigration Act 1971.

Thus, from 4 February 2005, under the heading “Right to request permission to take up employment”, paragraph 360 of the Immigration Rules provided:

“An asylum applicant may apply to the Secretary of State for permission to take up employment which shall not include permission to become self-employed or to engage in a business or professional activity if a decision at first instance has not been taken on the applicant’s asylum application within one year of the date on which it was recorded. The Secretary of State shall only consider such an application if, in the Secretary of State’s opinion, any delay in reaching a decision at first instance cannot be attributed to the applicant.”

Consequently, pursuant to its Reception Directive obligations, the UK allowed asylum seekers to apply for permission to take up employment, but, in addition to deciding not to reduce the period during which an applicant would not have any access to the labour market (one year from an application), in exercising its power under article 11(2) of the Reception Directive to decide conditions upon which an asylum seeker might be granted access to the labour market, the UK determined to impose restrictions on access thereafter in terms of self-employment and employment in a professional or business activity. The Claimant makes no criticism of those restrictions.

The Secretary of State took the view that the benefits conferred on an asylum seeker by the Reception Directive (including the right to apply for permission to take up employment in article 11) only applied during the currency of an initial asylum application, and not to those who had had such an application refused but had subsequently made a further asylum claim. Sometimes, as this very claim illustrates, a claimant may make several asylum applications, over several years. The error of the Secretary of State’s restrictive view was identified in R (ZO) (Somalia) v Secretary of State for the Home Department [2010] UKSC 36 (“ZO”), in which the Supreme Court held that asylum seekers are covered by the Reception Directive during the course of an initial claim and any subsequent claim.

The decision in ZO had a potentially substantial effect on the UK labour market because, although the number of asylum seekers with initial applications outstanding was relatively small, there were estimated to be approximately 45,000 failed asylum seekers in the UK who had made further representations which had been outstanding for over a year. Consequently, following ZO, asylum seekers available for work were, potentially, very many more than previously had been the case.

The judgments in ZO were delivered on 28 July 2010. The Secretary of State acted quickly. On 19 August 2010, again under section 3(2) of the Immigration Act 1971, she laid before Parliament a further Statement of Changes in Immigration Rules (Cm 7929), effecting two changes as a result of ZO, as from 9 September 2010. The Explanatory Memorandum to the Statement explains:

“7.3

This instrument implements the Supreme Court ruling by enabling failed asylum seekers who have put forward further submissions which raise grounds which have been outstanding for a year or more (and the delay cannot be attributed to the applicant) to apply for permission to work. This extends the provisions previously set out in paragraph 360 of the Immigration Rules which only applied to initial asylum applicants whose claim had been outstanding for a minimum of twelve months (and the delay could not be attributed to the applicant).

7.4

This amendment also introduces an additional restriction on the type of employment that can be undertaken by those granted permission to work under paragraph 360 of the Immigration Rules. Those granted permission to work under the amended Rule 360 will only be able to undertake employment on the list of shortage occupations published by the [UKBA]. This approach is consistent with wider labour market and migration policies, ensuring that foreign workers are diverted to occupations where a national shortage of skilled labour has been identified and thereby offer the greatest value to the UK.”

Paragraph 360 was thus replaced by the following:

“360.

An asylum applicant may apply to the Secretary of State for permission to take up employment if a decision at first instance has not been taken on the applicant's asylum application within one year of the date on which it was recorded. The Secretary of State shall only consider such an application if, in the Secretary of State’s opinion, any delay in reaching a decision at first instance cannot be attributed to the applicant.

360A. If permission to take up employment is granted under paragraph 360, that permission will be subject to the following restrictions:

(i)

employment may only be taken up in a post which is, at the time an offer of employment is accepted, included on the list of shortage occupations published by the UK Border Agency (as that list is amended from time to time) [i.e. the SOL];

(ii)

no work in a self-employed capacity; and

(iii)

no engagement in setting up a business.

360B. If an asylum applicant is granted permission to take up employment under paragraph 360 this shall only be until such time as his asylum application has been finally determined.

360C. Where an individual makes further submissions which raise asylum grounds and which fall to be considered under paragraph 353 of these Rules, that individual may apply to the Secretary of State for permission to take up employment if a decision pursuant to paragraph 353 of these Rules has not been taken on the further submissions within one year of the date on which they were recorded. The Secretary of State shall only consider such an application if, in the Secretary of State’s opinion, any delay in reaching a decision pursuant to paragraph 353 of these Rules cannot be attributed to the individual.

360D. If permission to take up employment is granted under paragraph 360C, that permission will be subject to the following restrictions:

(i)

employment may only be taken up in a post which is, at the time an offer of employment is accepted, included on the list of shortage occupations published by the UK Border Agency (as that list is amended from time to time) [i.e. the SOL];

(ii)

no work in a self-employed capacity; and

(iii)

no engagement in setting up a business.

360E. Where permission to take up employment is granted pursuant to paragraph 360C, this shall only be until such time as:

(i)

a decision has been taken pursuant to paragraph 353 that the further submissions do not amount to a fresh claim; or

(ii)

where the further submissions are considered to amount to a fresh claim for asylum pursuant to paragraph 353, all rights of appeal from the immigration decision made in consequence of the rejection of the further submissions have been exhausted.

The “list of shortage occupations published by the UK Border Agency” (the SOL) which informs the restriction on employment set out in paragraph 360A(i) (for initial applicants) and 360D(i) (for subsequent applicants) is a reference to a list of jobs originally developed under the work permit arrangements, and later as part of the eligibility criteria for Tier 2 (General) Migrants of the Point Based System. Under that system, skilled workers may migrate to the UK for up to three years to undertake work for employers with a sponsorship licence, to do jobs in “shortage occupations”, i.e. jobs that cannot readily be filled from the resident labour market. Other than ministers of religion, elite sportspeople and skilled workers moving from an overseas branch of a company to a UK branch, under the Points Based System only those who are able to undertake such employment are able to come to the UK for the specific purpose of work.

The SOL is prepared by the Secretary of State following advice from the Migration Advisory Committee (“the MAC”), an independent non-departmental public body comprising labour market economists and migration experts, commissioned by the UK Government to review the UK labour market to identify where labour market shortages exist in the UK (i.e. as to where there are occupations in which it is not possible to fill vacancies by recourse only to UK nationals, other EU citizens and others with a right to work in the UK), using published methodology which is not challenged in these proceedings. Such occupations are recommended for designation as shortage occupations. It recommended its initial list in September 2008, and has reviewed that list regularly since. The MAC having made its recommendations, the Secretary of State determines the final list. Prior to July 2012, the SOL was incorporated into guidance issued by the Secretary of State, namely the Occupation Codes of Practice: since then, it has been incorporated directly into the Immigration Rules as tables set out in Appendix K (see paragraphs 114 and following below).

The SOL had been used for deciding entry clearance applications under the Points Based System since November 2008. Following ZO, the Secretary of State determined that, as from 9 September 2010, for all those with any form of asylum application outstanding, even after their application for asylum had been pending for a year, access to the labour market would be restricted by reference to the SOL. It is of course that restriction which the Claimant contends is contrary to EU law.

Mr Wilson submitted that that restriction of the Claimant’s permission to work is unlawful because it is contrary to the provisions of the Charter and the Reception Directive, thus.

Those submissions were put eloquently and forcefully; but, for the following reasons, I do not find them compelling.

First, the argument is based upon a false premise, i.e. that article 15(1) of the Charter confers a right to work on everyone, in the sense of all individuals who happen to be within the territories of the EU at a particular time. In my view, it clearly does not.

The starting point is the well-established principle that, generally, a state has the right to protect its own citizens’ right of access to its own labour market, and thus a right to restrict the ability of non-nationals to enter that market. That is an uncontroversial proposition, which Mr Wilson unhesitatingly accepted: as a matter of domestic law, a non-national has no right to have an opportunity to work at all or on any particular basis.

As I have explained (paragraphs 28-30 above), the Charter merely reaffirmed existing rights. Whilst it is legitimate – indeed, required – to construe other European provisions in the light of the normative values in the Charter, the Charter did not itself create any new rights.

Before considering the true construction of article 15 of the Charter, I pause to note that it would have been surprising – indeed, astonishing – if, by signing and ratifying the Treaty of Lisbon, the UK had given a general right of access to the labour market to everyone who happened to be within the territorial boundaries of the UK from time-to-time; particularly in the light of the UK’s contemporary insistence on Protocol No 30, which confirmed (to the extent that confirmation were necessary) that the Charter did not create any new rights.

In fact, article 15(1), upon which Mr Wilson places great weight, quite clearly does not confer the general right to work. Despite its terms (“Everyone has the right to engage in work…”), there is clearly no absolute right to work: the provision can refer to no more than some form of access to the labour market. However, there are many UK nationals and other EU citizens who, without permission, have a right to work because of their nationality and citizenship and who wish to work, but are unemployed because of a lack of jobs for which they are equipped and qualified. They have a right of access to the labour market, but that right for many is empty in the sense that they have at best a very limited chance of obtaining employment.

But leaving that general point to one side, it is clear from article 15(2) and (3) that article 15(1) does not confer a right to work on everyone, in the sense of all individuals who happen to be within the territories of the EU at a particular time. Article 15(1) cannot be considered in a vacuum. Article 15(2) provides that every citizen of the EU has the right to seek employment and to work in any Member State, a right which presumes there is no wider right to work or access to the labour market, available to EU and non-EU citizens. Article 15(3) also presumes that, to work, those who are not EU citizens require authorisation outside the Charter itself. Despite the use of the word “everyone” in article 15(1), far from conferring a general right to work on all who happen to be in EU territories at any time, in terms of the right to engage in the labour market, article 15 draws a fundamental distinction between citizens of the EU on the one hand, and those who are not such citizens on the other; and its objective, patently, is to recognise that EU citizens have the freedom or right to seek employment and to work, but not to recognise that same freedom or right in non-EU citizens. It is perhaps worthy of note that Mr Wilson did not contend that article 15 gave a failed asylum seeker any right to work.

I consider it is plain that, on the face of the wording of article 15, read as a whole, it does not confer a discrete right to work on non-EU nationals who happen to be in the EU at any particular time, including asylum seekers, as contended for by Mr Wilson. However, considerable support for that construction is gained from the authorities. In none of the authorities to which I was referred – and there were many – have either the European Courts or the domestic courts found there to be such a right.

In most instances, the existence of such a right has not even been contended, in cases in which it would have been a remarkable omission if such a right actually, or even arguably, existed. For example, in Ruiz Zambrano v Office National de l’Emploi [2011] EUECJ C-34/09, [2012] QB 265, Mr Zambrano was not an asylum seeker at the relevant time, because his asylum claim had simply been refused but he had nevertheless stayed in Belgium; and, without the required permit, had worked. Mr Zambrano lost his job, having completed the requisite working days that would otherwise have qualified him for unemployment benefit; but he was denied that benefit because the Belgian legislation in respect of employment of foreign workers took out of count days worked without a work permit. Before a Belgian employment tribunal, he argued that he, as a non-EU national, could derive rights under EU law from the rights of residence conferred on his dependent EU-citizen children by articles 20 and 21 of the Treaty on the Functioning of the European Union. The rights he sought were of residence and exemption from a work permit. In that case, it was not suggested that Mr Zambrano, as a non-EU citizen, had a right to work in the EU under article 15(1) of the Charter, a much more straightforward route to relief that the one upon which he (in the event, successfully) embarked. Neither has such a suggestion been made in the European and domestic cases that have followed Zambrano, e.g. Dereci v Bundesministerium für Inneres [2011] EUECJ C-256/11, [2012] All ER (EC) 373, O and S v Maahanmuuttovirasto (Immigration Office) [2012] EUECJ C-356/11, and Harrison (Jamaica) & AB (Morocco) v Secretary of State for the Home Department [2012] EWCA Civ 1736). In the cases in which such a contention has been made, it has been dismissed (see Negassi at [35] per Collins J, and Lutalo at [19] per His Honour Judge Stephen Davies; those analyses being expressly approved by the Court of Appeal: Negassi & Lutalo (CA) at [22] and [30]).

Despite the wording of article 15(1) of the Charter, I am quite satisfied that that provision was not intended to and did not confer on non-EU citizens any discrete right to work or permission to have access to the domestic labour market without national authorisation or outside the terms of any such authorisation. To find such a right, one must look elsewhere.

And Mr Wilson did. With regard to the Reception Directive, his primary contention was that article 11 reflected the general right of work found in article 15(1) of the Charter, and that it set out the limits on derogation Member States had agreed; but, as an alternative, he submitted that a general right to work can be cast out of article 11 itself.

However, I am unpersuaded that article 11 either confers on asylum seekers a general right to work, or even reflects such a right to work found elsewhere, subject in either case only to the derogation allowed in article 11(1) and (2).

I have come to that conclusion essentially on the basis of the same analysis as that of Judge Stephen Davies in Lutalo (at [19]-[20]), expressly approved by the Court of Appeal (at [30]) and which I can only commend.

The provisions of the Charter may well inform the construction of European instruments such as a directive; but, as Judge Stephen Davies emphasises, because it is not the objective of article 15 of the Charter to give non-EU nationals a general right to work, there is no basis for adopting a purposive construction of article 11(1) of the Reception Directive on the footing that that is its objective. In fact, article 11(1) does not assist the Claimant at all: a general positive right of free access to the labour market cannot be divined from a provision that allows a Member State, in terms of negative obligation, to deny any and all access to all asylum applicants for a period to be no more than a year but otherwise to be determined by that State.

Furthermore, if the EU had intended to introduce such a general right to work across the Union territories, that would be a radical step which, one would have expected, would have been done expressly and clearly. If article 11(1) were intended to impose such a positive obligation, then it would have been easy enough for it to have done so in terms; and the evidence suggests the draftsman could and would have made that intention clear. In this context, it is proper to consider (i) other provisions within the Reception Directive (see paragraph 63 below), and (ii) proposed amendments to the Reception Directive (see paragraphs 64-5 below).

With regard to other provisions within the Reception Directive, article 10 concerns access to education. Article 10(1) imposes a duty on Member States to grant minors who are asylum seekers or the children of asylum seekers access to the education system of the Member State, thereby giving such children a reciprocal right to such access. Although article 10(2) allows a Member State to postpone such access for a specified period – generally, three months – article 10(1), unlike article 11(1), is clearly written in terms of a positive obligation on the Member State requiring it to allow access to education.

With regard to proposed amendments to the Reception Directive, the Directive currently concerns the minimum standards of treatment for asylum seekers. In 2007, the European Commission produced an evaluation report on the application of the Directive (COM (2007) 745), which resulted the following year in the Commission putting forward a proposal to the European Parliament and Council for amendments to the Reception Directive to provide higher than minimum standards of treatment for asylum seekers (COM (2008) 815). Far from suggesting that the various restrictions imposed by Member States under the existing Directive were outwith the terms of that Directive, the proposal indicated that there was a need to change the provisions of the Directive to increase the obligations on Member States so far as allowing asylum seekers to work was concerned. The proposal was to replace article 11 with a new provision (proposed article 15), which would (i) impose a positive obligation of Member States to ensure that asylum seekers have access to the labour market, no later than 6 months after the making of an application (article 15(1)), and (ii) restrict a Member State’s power to impose conditions for granting access to the labour market thereafter, by providing that conditions would be “in accordance with national legislation, without unduly restricting asylum seekers’ access to the labour market” (article 15(2)).

The final version of the proposal was agreed by the Council of Ministers and published on 27 September 2012. Importantly, it no longer refers to “minimum” conditions for asylum seekers: it seeks to impose higher standards. The new proposed article 15(1), significantly different from the 2008 proposal, provides as follows:

“Member States shall ensure that applicants have access to the labour market no later than 9 months following the date when the application for international protection was lodged if a first instance decision has not been taken and this delay cannot be attributed to the applicant.”

In contradistinction from the current provision in article 11(1), written in language of negative obligation, that new provision (to which the UK has declined to commit) is written in terms of a positive obligation to permit access to the labour market. Proposed article 15(2) does not follow the original 2008 proposal with regard to conditions for access to the labour market (“…without unduly restricting asylum seekers’ access to the labour market…”), in favour of an obligation to “[ensure] asylum seekers have effective access to the labour market”: in other words, in accordance with usual EU principles (see, e.g., European Commission v Netherlands [2012] EUECJ C-508/10 at paragraphs 65, and 78-79), Member States would simply be prohibited from jeopardising the effectiveness of the positive right to access to the labour market granted in article 15(1) by imposing conditions with that effect under their article 15(2) powers.

If Mr Wilson’s contention that article 15 already gives asylum seekers a right to work (in the sense of a right to permission to work), none of these changes to the Directive would be required. The fact of these proposals, and their highly contentious nature within the EU – the UK has indicated that it has no current intention of participating in the revised Reception Directive – underscores the fact that the proposals intend to impose a positive obligation on Member States to give asylum seekers permission to work – and asylum seekers a reciprocal right to work – where none currently exists.

For those reasons, I do not consider that article 11(1) is of any assistance to the Claimant.

Nor do I consider that a right to have access to the labour market (or a reciprocal obligation on the State to provide such an opportunity) can be cast out of article 11(2). Article 11(2) does impose a positive obligation on the State; but that obligation is limited to “decide the conditions for granting access to the labour market”, with the reciprocal right of an individual, not to have access to the job market, but to have the State impose those conditions (see Lutalo at [20] per Judge Stephen Davies, and Negassi & Lutalo (CA) at [23] per Maurice Kay LJ). As Maurice Kay LJ described it in Negassi & Lutalo (CA) (at [24]), this is a “relatively ‘soft’ obligation”. Article 11(2) is therefore “drafted to make it clear that Member States are not required to permit all asylum seekers falling within its scope to be granted access to the labour market” (Lutalo at [20]: my emphasis). Whatever “the conditions for granting access to the labour market” might be, the inherent nature of such conditions is that, in practice, some people will or at least may not be able to satisfy them. Article 11(2) therefore clearly envisages that, as a result of conditions imposed by a Member State, not all asylum seekers will in fact have an opportunity to enter the job market.

For those reasons, I do not consider that article 11 of the Reception Directive either confers of asylum seekers a right to work, nor does it presume or recognise that such a right exists elsewhere. Indeed, it presumes that not all asylum seekers will in practice be able to enter the job market.

However, Mr Wilson submitted that, as a restriction for granting asylum seekers access to the labour market, the SOL is disproportionate, because, leaving aside the particular circumstances of the Claimant (to which I shall return), there is no evidence that, since 2010 when the SOL was introduced as an additional restriction, any asylum seeker has obtained a job on that list. However, some care is needed here, for two reasons.

First, one of the reasons for there being no evidence of any asylum seeker in fact being employed in a job on the SOL list is that such records are not kept. However, the SOL is, as I have explained (paragraph 44 above), the basis for allowing immigrant workers into the UK as Tier 2 (General) Migrants under the Points Based System. Between April 2010 and December 2011, nearly 10,500 Tier 2 applicants obtained jobs on the SOL, although the figure declined sharply after April 2011 when the occupations of chefs and all care workers were removed from the list (Robert Jones 6 July 2012 Statement, paragraphs 3-4). I well-appreciate that asylum seekers may generally not be in as good a position as out-of-country applicants to obtain jobs on the SOL: for example, many of the posts require particular skills, expertise, language ability, qualifications, references or simple confidence which asylum seekers are less likely to have; and employers may be less willing to offer positions to those whose ability to work is tenuous in the sense that permission to work will cease if and when the applicant’s asylum claim is rejected (Beryl Randall 10 July 2012 Statement, paragraph 7). Nevertheless, the evidence is that up to a half of asylum seekers are from professional backgrounds and have some form of qualification (Beryl Randall 10 July 2012 Statement, paragraph 5; Robert Jones 24 May 2012 Statement, paragraph 20). It would be statistically curious if none of the asylum seekers who wished to work whilst their application is pending (currently, as I understand it, about 1,500 individuals) has ever obtained a job. However, I fully accept that (i) asylum seekers are less likely to have the skills etc necessary for an SOL occupation, and (ii) the number of asylum seekers who have in fact found employment in a SOL occupation is very small.

Second, and more vitally, care is required over the concept of proportionality.

Whilst well-established as a public law concept in some European jurisdictions (particularly in Germany), as a principle of European administrative law, it is relatively recent, only being fully developed following the Court of Justice decision in Internationale Handelsgesellschaft mbH v Einfhur- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125. It was initially applied, in the context of the principle of subsidiarity, as a constraint on Union action, now encapsulated in article 5(3) and (4) of the Treaty on European Union:

“3.

Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.

The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.

4.

Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.

The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality.”

Proportionality can thus be used to challenge the actions of EU institutions.

However, the principle of proportionality has extended, and it is now well-established that it can also be used to challenge the actions of Member States, including both (i) where a State exercises a power to restrict or derogate from a Treaty obligation (including, of course, where in the public interest the State seeks to restrict the EU rights of individuals), and (ii) where a State exercises a discretion in implementing EU legislation. Where a Member State has a power to derogate from a particular European law obligation, the scope of the power is particularly limited and is interpreted strictly; and the exercise of the power requires particularly careful and close scrutiny. Where a Member State is not derogating from a Treaty obligation but simply exercising a discretion in adopting measures to implement EU legislation, it is still well-established that a Member State is bound to act in accordance with general rules of EU law, which includes the principle of proportionality (Azienda Agricola Ettore Ribaldi v AIMA [2004] EUECJ C-480/00: [2004] ECR I-2943 at paragraph 43).

Mr Wilson’s proposition that the SOL is disproportionate is based on the premise that asylum seekers have a primary right to work, from which, by imposing the SOL restriction, the Secretary of State is derogating. As I have indicated, where a Member State has a power to derogate from a particular European law obligation, the scope of the power is limited and is interpreted particularly strictly. However, for the reasons I have given, asylum seekers (like other non-EU nationals) do not have a general right to work; and therefore the terms of article 11(2) are not, in my view, properly seen in terms of a restriction on or derogation from a right. Article 11(2) imposes on a Member State an obligation to determine the conditions for granting asylum seekers access to the labour market – and, as Maurice Kay LJ stressed in Negassi & Lutalo (CA) (at [23]), that is the sum of the EU obligation: the conditions imposed by the Member State are matters of subsidiarity for the Member State. The reciprocal EU right in an asylum seeker is to have such conditions determined. It follows of course that, once determined, if an asylum seeker satisfies the conditions imposed by the Member State then he is entitled to permission to work: but, whilst that may give the relevant individual a legitimate interest in the conditions imposed, that is analytically different from saying that the conditions are imposed as a derogation from some pre-existing or overriding right to work. There is no such right. We are therefore not in the limited scope of particularly high-intensity review required when a Member State is exercising a power to derogate.

Mr Eicke submitted that, in those circumstances, proportionality has no role to play; but I disagree. Article 11(2) confers on the UK a discretion to determine conditions for granting asylum seekers access to its domestic labour market and, as with the exercise of any such discretion, as I have indicated (paragraph 74 above), it must be exercised in accordance with the object and purpose of the specific power and of the EU instrument in which it lies (i.e. in this case, the Reception Directive), read in the light of the relevant European Treaties, generally; and in conformity with general principles of EU law including proportionality.

However:

Consideration of the proportionality of a measure requires the identification of the relevant rights and interests – both public and individual – and, if the measure is considered both necessary and suitable for the attainment of the desired objective, then an assessment of whether the measure disproportionately affects the rights and interests of those adversely affected. That exercise requires attribution of weight to the various relevant rights and interests identified, and a balancing exercise of the social or public benefit resulting from the limiting measure, and harm to the rights and/or interests of those adversely affected by the measure.

Therefore, what is the object and purpose of the specific power to impose conditions for granting an asylum seeker access to the labour market, contained in article 11(2)? The obvious main purpose (enforced by the terms of article 11(4): see Negassi & Lutalo (CA) at [24]) is to enable a Member State to protect the interests of those who, unlike asylum seekers and other non-EU citizens, do have a rightto access the UK labour market. Article 11(4) makes quite clear that a Member State may give priority to those with such a right. It is equally clear that that priority may be effected by conditions imposed under article 11(2).

That is, of course, precisely what the SOL seeks to do. As I have explained (see paragraphs 44-5 above), the SOL is a list of jobs identified by an independent non-departmental public body comprising of labour market economists and migration experts (the MAC) using published methodology, as occupations in the UK labour market in which shortages exist which cannot readily be filled by UK nationals or other EU citizens or other available authorised workers. The methodology is set out in a 330 page report, “Skilled, Shortage, Sensible: The Recommended Shortage Occupation Lists for the UK and Scotland” (September 2008): it is a thorough, well-researched and well-presented document, written “to provide transparent, independent and evidence-based advice to the Government on where shortages of skilled labour can sensibly be filled by immigration from outside the EEA” (Summary, page 11). Mr Wilson sought to suggest that there were other jobs in the UK, more menial and less senior than those in the SOL, which remain unfilled: but there is no evidence before me that there is a shortage of unskilled and less skilled workers in the UK. The SOL reflects the fact that there is no such shortage, but that shortages do occur in skilled occupations. As I have indicated, the methodology of the MAC in respect of the identification of occupations where there are shortages is not challenged in these proceedings.

Paragraphs 360A(i) and 360D(i) of the Immigration Rules, and the SOL which they introduce as a restriction on employment of asylum seekers, therefore has the main public policy objective of ensuring that asylum seekers are granted access to the UK labour market without adversely impacting on UK nationals and other EU citizens, as they are only granted access to jobs identified as ones which the resident labour market are unable to fill.

However, additionally:

These are clearly powerful public interest factors: a State has a power, specifically recognised in article 11(2) and (4) of the Reception Directive, to protect the integrity of its labour market by prioritising its own citizens. That is a well-established legitimate labour market policy.

Furthermore, in exercising that power, steps were taken to ensure that that policy was effectively pursued by adopting the SOL as a restriction on asylum seekers who wish to work:

In seeking thus to restrict access of asylum seekers to the domestic labour market, the approach of the UK is not unique. I have been provided with a compilation of national responses by the European Migration Network at the European Commission following a request from Austria for information about (amongst other things) the application of article 11(2) and (4). As expected in a field in which the margin of discretion is inherently wide, the approach of Member States varies considerably. However, under their article 11(2) powers, several Member States appear to have imposed restrictions on asylum seekers’ access to the labour market to occupations which cannot be filled by a Member State national, or other EU citizen, or a non-EU national with permission to work (e.g. France, Greece, Hungary and Malta). Others have imposed conditions which restrict access to particular occupations (e.g. Cyprus), or on the basis of the same conditions as out-of-country economic migrants (e.g. Slovenia). Whilst of course it would be wrong to place too much weight on the compilation of responses to this ad hoc request, it seems clear that the approach of the UK is far from unique. There is no evidence that the European Commission have considered taking any enforcement action, or even consider any Member State (including the UK) to have been in breach of implementing the Reception Directive, in this regard.

That deals with the purpose of article 11(2), read with article 11(4)) of the Reception Directive. What of the purpose and objectives of the Reception Directive more generally?

As I have indicated (paragraphs 36 and following above), the Directive seeks to ensure full respect for human dignity, and the promotion of two specific provisions of the Charter namely article 1 (concerning the inviolability of, protection of and respect for human dignity) and article 18 (reaffirming the right to asylum under the Geneva Convention), by the establishment of minimum standards for the reception of asylum seekers. Those minimum standards, the Directive says (recital (7)), will normally be sufficient to ensure asylum seekers a dignified standard of living, comparable and harmonised throughout the EU.

Mr Wilson submitted that the SOL restriction is “not commensurate with human dignity”. He relied on evidence showing the effect of the restriction on (i) asylum seekers generally, and (ii) the Claimant specifically.

With regard to asylum seekers generally, the Claimant relies upon statements from high level managers and directors in charities involved in the support of refugees and asylum seekers: Beryl Randall (Director of Employability Forum), Emma Renshaw (Manager of London Refuge Support Service, British Red Cross), Sheila Heard (Managing Director of Transitions), and Ewan Roberts (Centre Manager, Asylum Link Merseyside). Bassam Bashir, an engineer from Iraq, an asylum seeker, who has had permission to work since April 2011 but has not yet found a job, has also prepared a statement. In addition, there are reports from various organisations such as the Joseph Rowntree Charitable Trust, the British Red Cross, Oxfam and the Houses of Parliament Joint Committee on Human Rights.

This evidence is depressing, and, in places, undoubtedly moving. The challenges faced by asylum seekers, failed asylum seekers and those granted refugee status are only too stark, and the importance and value of the charitable efforts of the institutions I have mentioned only too obvious. However:

I have indicated above the general nature of the evidence in relation to asylum seekers as a cohort, as well as the evidence of the consequences for the Claimant of his inability to work. Those consequences, challenging, unpleasant and frustrating as they must be, have not prevented the Claimant receiving support from the State (in the form of benefits) and from charities, including friends, sufficient to maintain him in the UK for over 11 years. The circumstances that the Claimant has found himself in, unhappy as they are, clearly fall very far short of the threshold for a claim under article 3 of the ECHR. There is no evidence that any other asylum seeker is in any different position. That at least informs the issue of whether the restriction of access to employment by reference to the SOL amounts to a breach of the right to dignity in the Charter, reflected in the Reception Directive. In my judgment, the fact that the Claimant is, or has been unemployed by virtue of the SOL restriction to his permission to work, does not engage the right to dignity.

Nor do I consider that restriction disproportionate. In coming to that conclusion, I have taken into account all of the matters raised before me, including those to which I have referred above, but, particularly, the following.

In the circumstances, in my judgment, the imposition of a condition on asylum seekers access to the labour market, restricting such employment to jobs which UK nationals and other EU citizens are unable to fill, is both necessary and appropriate in pursuit of the legitimate public interest in protecting the domestic labour force. I also consider that it is a proportionate application of article 11(2) and (4) of the Reception Directive. Indeed, Mr Wilson, despite his redoubtable efforts, has fallen very far short of persuading me otherwise. It seems to me impossible to say that the Secretary of State has failed to strike an appropriate balance between the interests of asylum seekers in working on the one hand, and the public interest in ensuring that positions taken by such individuals does not adversely affect the rights to work of UK nationals and other EU citizens to work. Whilst the Secretary of State would on the facts of this case satisfy a much more stringent test, it cannot be said that the SOL is a “manifestly inappropriate” measure having regard to the legitimate objective of protecting UK nationals and others with a right to work in the UK. Indeed, with respect to the contentions of Mr Wilson to the contrary, it is, in my judgment, clearly an appropriate measure.

As a final limb of this ground, Mr Wilson submitted that Paragraphs 360A(i) and 360D(i) of the Immigration Rules were unlawful as they permitted no discretion in the decision maker to allow an applicant greater access to the labour market than the occupations on the SOL, on the basis of his or her own individual circumstances. The policy conclusively determines the outcome of the application: there is no scope for allowing a “near miss” applicant access.

The answer to that submission is however simple: we are concerned with Immigration Rules, and, in relation to them, there is no near miss principle (Mongoto v Secretary of State for the Home Department [2005] EWCA Civ 751, Rudi v Secretary of State for the Home Department [2007] EWCA Civ 1326 and Miah cited above at paragraph 91(iv) above). With respect to Mr Wilson’s submission, the argument that there is such a principle has been described as “spurious” (Mongoto at [25] per Laws LJ) and “misconceived” (Rudi at [28] per Carnwath LJ, as he then was). In the face of such terms, the submission is consequently bold.

Those Court of Appeal authorities are of course binding on me; but, like Stanley Burnton LJ (Miah at [25]), apart from authority, I am in any event quite sure that that approach is correct. In short, a rule is a rule. In relation to a particular occupation, there either is or there is not a shortage of domestic (i.e. UK or EU) labour. There is no room for a “near miss” principle. Further, as Stanley Burnton LJ explained in Miah (at [25], quoted at paragraph 92(vi) above)), the practical necessity of having such rules in the fields such as this is clear.

There is, therefore, nothing unlawful in the Secretary of State prescribing a list to which employment of asylum seekers will be restricted. It is noteworthy that other Member States have adopted a similar approach, without criticism or comment from the European Commission (see paragraph 85 above).

For those reasons, I find that paragraph 390A(i) and 360D(i) (with the SOL restriction they introduce) are not in breach of EU law.

Consequently, it is unnecessary for me to consider the appropriate relief, had I found there to have been a breach. However, substantial submissions were made on this issue and, out of deference to them, I should make some brief comment.

Since 24 July 2012, the Claimant has had no outstanding asylum application. Consequently, although he seeks a bare declaration that, for a period from 6 September 2011 when the Secretary of State made the challenged decision to give permission to work subject to the SOL restriction (or, possibly 15 August 2011, when the first such decision was made) until 24 July 2012, he ought to have had some other form of unrestricted or less restricted permission, the main relief now sought is for damages for that breach for that period.

As the only evidence of a job offer is that at the pizza restaurant, made the same month as the final determination of his last asylum application, the level of damages might in any event be low. But, leaving that aside, Mr Eicke for the Secretary of State submitted that, as a matter of principle, the Claimant has no entitlement to damages. The Claimant’s claim is based on the principles established in Francovich v Italy [1991] ECR 1-5357; [1993] 2 CMLR 66 at paragraph 39-40, in which the European Court of Justice prescribed three conditions for the entitlement to damages for breach by a Member State of a Treaty obligation to implement a Directive, namely (i) the rule of law infringed was intended to confer rights on individuals, (ii) the breach was sufficiently serious and (iii) there was a causal link between the breach and the loss sustained by the party. Mr Eicke conceded, for these purposes, that article 11 was intended to confer some form of right on individual asylum seekers, but, he submitted, the breach in this case was not sufficiently serious to trigger these principles.

I agree. Indeed, in my view, after Negassi & Lutalo (CA), it is not arguable that damages for any breach would flow. The issue was considered by the Court of Appeal in the context of Mr Negassi’s claim. Mr Negassi’s application for permission to work was refused because it was made during the currency of a subsequent application for asylum, and it was pre-ZO. He claimed damages on Francovich principles, on the basis of the Secretary of State’s erroneous approach to the transposition of article 11 as exposed in ZO. The Court of Appeal held (at [13]) that, where a Member State had made a bona fide attempt at transposition, then the failure to transpose will not in itself give rise to an automatic entitlement to damages: the claim has to be assessed by reference to all relevant factors, as identified by Lord Clyde in R v Secretary of State for Transport ex parte Factortame (No 5) [2000] 1 AC 524 at pages 554-6, recited by Maurice Kay LJ in Negassi & Lutalo (CA) at [14]. Maurice Kay LJ found in that case that, although the factors were quite finely balanced, the breach was not sufficiently serious to satisfy the Francovich test.

Such multifactoral tests are necessarily fact specific; and the facts of Negassi were not of course the same as the facts of the Claimant’s case. Mr Wilson sought to persuade me that the Claimant’s case is stronger in two respects. First, in Negassi, the Secretary of State had refused permission to work at all: here, she has granted permission to work, but subject to conditions with which the Claimant has been unable to comply. However, whilst a difference between the cases, I do not consider that this is material to the issue in point: on the face of it, the Secretary of State made a better attempt at compliance in this case than in Negassi. Second, Mr Negassi arrived in the UK in 2005: the Claimant arrived in 2001, and has had over 11 years in the UK without the ability to work. However, the period between first arrival and final determination of the most recent application for asylum does not seem to me to be of any great weight. The precise time over which Mr Negassi said that the Secretary of State actually denied him permission to work is not clear from the Court of Appeal judgment, but it appears to be in the same order as in this case.

In fact, on this issue, this claim is significantly weaker than that of Negassi. Despite the submission to the contrary by Mr Wilson, this is clearly not a case of automatic entitlement: the Secretary of State undoubtedly made a bona fide attempt at transposition even if, contrary to my clear view, that was unsuccessful. With regard to the multifactoral test, here, as in Negassi, any breach was not deliberate, but the result of a genuine misunderstanding of EU provisions which are not clearly contrary to the Secretary of State’s understanding, and in respect of which there has been no judicial judgment on the point. Indeed, the only judicial ruling to date is mine in this judgment, to the effect that the Secretary of State’s understanding is correct. But in any event, in this claim, unlike Negassi, the Claimant and other asylum seekers have been granted permission to work, albeit subject to (on this hypothesis) over-restrictive conditions: and, unlike in Negassi, there has been no emanation from the European Commission suggesting that the Secretary of State’s interpretation is wrong. Indeed, as I have indicated (paragraph 85 above), some other Member States appear to have adopted an approach similar to that of the UK.

For those reasons, even had I been satisfied that the SOL had breached EU law, I would not have allowed the Claimant’s claim in damages. As a result, as the Claimant is no longer an asylum seeker, even had he satisfied me as to breach, he would not have obtained any substantial relief.

In any event, for the reasons given earlier, the first ground fails in its entirety. I shall dismiss the substantive application in respect of it.

Article 8(1) of the ECHR provides:

“Everyone has the right to respect for his private and family life, his home and his correspondence.”

Mr Wilson submitted that, in certain circumstances, a positive prohibition or restriction on the ability to take employment is capable of amounting to an interference with the right to respect for private life under Article 8. This was, he submitted, such a case. Judge Stephen Davies in Lutalo (at [55]) held that restrictions on a right to work are in principle capable of amounting to an interference with an individual’s Article 8 rights. Mr Wilson relied upon various authorities which stress the potential wide scope of the right to private life protected by article 8 (e.g. Niemitz v Germany (1993) 16 EHRR 97 at [12]), and in particular Sidabras v Lithuania (2006) 42 EHRR 6 (in which the European Court of Human Rights held that a domestic restriction on former KGB officers working at all in the public sector and much of the private sector labour market was discriminatory and in breach of article 14 taken with article 8) and R (Tekle) v Secretary of State for the Home Department [2008] EWHC 3064 (Admin). In Tekle, Blake J said (at [36]):

“… The ability to develop social relations with others in the context of employment… is thus an aspect of private life.”

Mr Eicke submitted that this case fell far short of the necessary seriousness to engage article 8, on the basis that it is well-established that article 8 does not require an individual to be provided with welfare or other support unless his situation is sufficiently serious to engage article 3 (Anufrijeva v Southwark London Borough Council [2003] EWCA Civ 1406; [2004] QB 1124); and this claim falls far short of that high threshold.

There is substantial force in that submission but, in my view, there is a more obvious, clear answer to this ground: Mr Wilson’s proposition in respect of this claim cannot survive Negassi & Lutalo (CA). In that case, Maurice Kay LJ said (at [38]):

“In the present cases, where it is common ground that article 8 does not embrace a general right to work, I do not consider that the protected right to respect for private life embraces the right of a foreign national, who has no Treaty, statutory or permitted right of access to the domestic labour market, to an entitlement to work. We have not been referred to any Strasbourg authority which supports the engagement of article 8 in these circumstances, Tekle is readily distinguishable.

For these reasons, I therefore conclude that these are simply not article 8 cases.”

Just as Tekle is readily distinguishable, so too of course is Sidabras, a case based on very different facts in which no breach of article 8 was found.

Again, Mr Wilson attempted to distinguish Negassi & Lutalo from this case, on the same grounds as he attempted to distinguish them on the Francovich issue (see paragraph 102 above). But they are indistinguishable. Negassi & Lutalo (CA) is binding on me; but, in any event, if I might respectfully say so, it is patently correct. We are simply not in article 8 country here.

For those reasons, the article 8 ground is not made good. Indeed, following Negassi & Lutalo (CA), I consider it to be unarguable. In respect of it, I shall consequently refuse permission to proceed.

Mr Wilson applied, essentially through his skeleton argument for this hearing, to amend the Claimant’s grounds to include a third ground, namely that paragraphs 360A and 360D are unlawful, because, at the time of the relevant decision (whether that be 15 August or 6 September 2011), the SOL had not been laid before Parliament, as required by the Immigration Act 1971. The SOL was not laid until 18 July 2012, when it was laid in the form of Appendix K to the Immigration Rules.

Section 1(2) of that 1971 Act provides that those not having a right of abode in the UK may live, work and settle here by permission and subject to such regulation and control of their entry into, stay in and departure from the UK as is imposed by the Act. Section 1(4) is in these terms:

“The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the UK of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the UK.”

So far as those rules are concerned, section 3(2) makes the following provision:

“The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the UK of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality).

If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid).”

In support of his submission in relation to this ground, Mr Wilson relies upon R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33. Prior to July 2012, the SOL was incorporated into guidance issued by the Secretary of State, namely the Occupation Codes of Practice (see paragraph 45 above). Mr Alvi’s application for leave to remain as Tier 2 (General) Migrant under the Points Based System was refused on the basis that his proposed job (assistant physiotherapist) was not an occupation on the SOL and so he did not satisfy the relevant criteria in the Immigration Rules. He challenged that decision on the basis that the SOL was a “rule”, but the Occupation Codes of Practice in which it was included had never been put before Parliament in accordance with section 3(2) of the 1971 Act; and therefore the requirement that any proposed job appear on the SOL was not a valid criterion for leave to enter. The Supreme Court agreed, holding that section 3(2) of the 1971 Act meant that the Immigration Rules could not lawfully incorporate provisions set out in other documents which had not been laid before Parliament.

In the light of that ruling, the Secretary of State acted even more quickly than she did in the aftermath of ZO. The Supreme Court delivered judgment in Alvi on 18 July 2012. That same day, the Secretary of State laid before Parliament a Statement of Changes in Immigration Rules (Cm 8423) inserting the SOL into the Immigration Rules as Appendix K, effective from 20 July 2012. Since then, that appendix has been amended from time-to-time, by the same process.

However, the Claimant contends that the decision of 15 August 2011 was unlawful because, at that time, the SOL did not form part of the Immigration Rules, and it was unlawful because it failed to comply with the mandatory requirements of the Immigration Act 1971. It was not properly incorporated into the Rules, and subject to the proper statutory procedure, until July 2012. This forms the basis of the third ground of challenge.

Mr Eicke responded to this proposed new ground on two bases. First, he submitted that Alvi is not applicable, because, in the context of asylum seekers, the SOL does not constitute a “rule” within the meaning of the 1971 Act, the Supreme Court holding that a rule in the context of that Act included any provision which was “determinative of an application for leave to enter or remain” (see Lord Hope at [57], Lord Dyson at [57], Lord Clarke at [121]-[122] and Lord Wilson at [128]). The SOL when applied to asylum seekers does not govern, and is not relevant to, permission to enter or remain. An asylum seeker has the right to be in the UK: the SOL merely restricts his ability to work to the occupation on the list.

I am unpersuaded by that submission. Section 1(4) of the 1971 Act concerns, not just the regulation of entry into the UK of persons not having the right of abode, but also, expressly, the regulation of their stay here. Section 3(2) concerns the procedure for rules which regulate both “the entry into and stay in the UK…” (emphasis added). The words used by the Supreme Court Justice in Alvi which I have quoted were used because that claim concerned the right of entry; but they clearly indicated that a rule subject to the requirements of sections 1(4) and 3(2) of the 1971 Act merely included any provision determinative of an application for leave to enter or remain. That clearly was not intended to, and does not, shut out a rule regulating stay, such as the SOL in the case of asylum seekers.

It is perhaps at least noteworthy that the Statement of Change in the Immigration Rules by which the Secretary of State obtained Parliamentary approval in July 2012 was expressly done under section 3(2) of the 1971 Act (although I appreciate, of course, that the SOL was concerned not just with asylum seekers but also with economic migrants seeking entry into the UK under the Points Based System).

However, Mr Eicke’s other response is, in my view, much stronger. He submitted that, given what happened when the SOL was put before Parliament in July 2012, had it been subject to the lawful procedure earlier, it would inevitably have been approved. As a matter of fact, I agree. Consequently, the Claimant has suffered no loss or damage as a result of the Secretary of State’s failure to comply with the relevant procedure. This clearly not being a case in which there is justification for awarding damages any greater than compensatory – Mr Wilson did not suggest otherwise – at most, the Claimant would be entitled to a bare declaration and nominal damages for that breach (R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12).

In the circumstances, I am not prepared to grant permission to amend the grounds to include this third ground, for the following reasons:

For those reasons, I refuse the Claimant’s application to amend to include reliance on the Alvi ground.

For the reasons I have given, this claim fails. In terms of the formal order, as indicated in the substantive part of this judgment, in relation to the Claimant’s three grounds: