OH v Secretary of State for the Home Department [2022] UKAITUR JR2021LON001003 concerns the rights of a dependant of an asylum seeker to work in the United Kingdom.

OH challenged a decision to refuse his request to work whilst he was a dependant of his wife’s asylum claim. OH and his wife were both medical professionals. After fleeing to the UK and several failed asylum applications as the primary claimant, his wife made an asylum application instead, with OH as her dependant. Neither of them met the requirements for permission to work under the Immigration rules, so they asked the Secretary of State to exercise her discretion instead. OH’s wife was granted a right to work but he was not.

The court confirmed that the Secretary of State did not need to exercise discretion when considering an application for permission to work, for the purposes of Article 8 read with Article 14 of the European Convention on Human Rights

An asylum seeker’s right to work

Anyone who does not have the right of abode in the United Kingdom can only work with permission under the Immigration Act 1971. Paragraph 360 of the Immigration Rules allows an asylum seeker to be granted the right to work if a decision has not been taken on their claim within one year of the date the application was recorded. If permission is granted, an asylum seeker can only take up a post which is included on the Shortage Occupation List.

The decision to allow asylum seekers to take up work came about because of various policy factors. It is also considered in the case of Rostami v Secretary of State for the Home Department [2013] EWHC 1494 (Admin). The main rationale is that allowing asylum seekers access to the UK labour market does not adversely impact British nationals, since they can only work in jobs which the resident labour market is unable to fill.

But what about their dependants?

The guidance confirms that the Immigration Rules do not provide dependants of asylum seekers permission to work, even if their claim takes longer than 12 months to be decided. However it is difficult to see why a caseworker would restrict the guidance to primary claimants for asylum and fresh claims only. There is no other guidance available for those without current permission to work and the guidance already dedicates significant space to their right to volunteer. The court therefore found that the policy, as it would be understood by caseworkers, would apply to dependants of asylum seekers as well as the primary claimant, so that dependants may have discretion exercised in their favour.

When it came to the question of whether a right to work was within the ambit of Article 8, read in conjunction with Article 14, the Upper Tribunal were much less enthusiastic. OH claimed that the guidance may operate unlawfully if no discretionary consideration is offered to dependants. However, the court cited a number of cases, including R(oao Negassi) v Secretary of State for the Home Department [2013] EWCA Civ 152, confirming that article 8 did not provide a foreign national entitlement to work where he had no permitted right of access to the domestic labour market. The distinction between primary claimants who did enjoy such a right, and dependants who did not, was crucial for article 8 to be engaged.

A dependant does not make an independent claim for international protection. OH would, in principle, be able to return to his country of origin or otherwise leave the UK pending the primary claimant’s asylum claim being examined. In contrast, the primary claimant does seek international protection and would have nowhere else to go, hence their access to the local labour market.

The Tribunal agreed with the Home Office’s justifications for the difference in treatment, including that:

• It prioritised the economic well-being of the United Kingdom in its task of protecting the local labour market, ensuring the line is not blurred between potential economic migrants and asylum seekers;
• It reflected the fact that the country was not under an international obligation to grant the right to work to dependants of asylum seekers;
• Dependants of asylum seekers are allowed to volunteer; they just could not take on paid work.

The Upper Tribunal recognised that it may be possible for an individual to have made a claim independently and that would allow them to work. But this begs the question as to why any adult who meets the criteria to be granted asylum, would ever apply as a dependant.

Ultimately, it was for the Home Office to “draw a line” on who was entitled to access the local labour market. Adopting a restrictive approach to dependants of asylum seekers is a legitimate reflection of these policy objectives, as well as within the ambit of Article 8.

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