Home Office policy on permission to work for asylum seekers is unlawful to the extent that it doesn’t make allowances for potential victims of human trafficking, the High Court held today. The policy will now have to be reworked to make clear that there is a discretion to allow asylum seekers to work in non-shortage jobs — a discretion that people in the trafficking system should be able to rely on in future. The case is R (IJ (Kosovo)) v Secretary of State for the Home Department [2020] EWHC 3487 (Admin).

The claimant, known as IJ, claimed asylum in the UK and also asked to be treated as a victim of human trafficking. She received what lawyers call a “positive reasonable grounds decision” in March 2019. This basically means that the government thought she might be a genuine victim of human trafficking, although there was still a second stage of the process (the “conclusive grounds decision”) to come.

Not long afterwards, while still awaiting the conclusive grounds decision, she applied for the right to take up a job offer as a cleaner. In general asylum seekers can only work in jobs that are on the Shortage Occupation List (this one wasn’t), and the Home Office said that IJ should be no exception: “her circumstances did not distinguish her from other asylum seekers”.

IJ challenged that decision, invoking the UK’s obligations under Article 12 of the Council of Europe Convention on Action against Human Trafficking (ECAT). Article 12 says that governments “shall adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery”.

It was common ground that, despite what the Immigration Rules on this might say, the Home Office has a “residual discretion” to allow asylum seekers to work in non-shortage jobs. This discretion might have helped the claimant. But Home Office policy on the issue doesn’t acknowledge the existence of this discretion. It just reiterates what the Rules say: shortage jobs only.

Bourne J found that “in applying the discretion, the decision-maker must have regard to the primary objectives of ECAT. As in the case of PK Ghana, caseworkers should be directed accordingly”. And since the policy doesn’t direct caseworkers to consider exercising discretion, it “creates a real risk of unlawful decisions being made in a significant number of cases”.

For good measure, he declared the policy unlawful on a second ground as well. The case of Thlimmenos v Greece (application no. 34369/97) establishes that it can be unlawful discrimination to fail “to treat differently persons whose situations are significantly different”. Bourne J found that was relevant to the position of actual or potential trafficking victims, as opposed to all other asylum seekers:

the lack of reference to a discretion in the guidance does create a real risk that caseworkers will fail to have sufficient regard to the particular circumstances, and the ECAT rights, of those who claim to be victims of trafficking, and of their decisions thereby being discriminatory in the Thlimmenos sense.

Alex Goodman, representing IJ, described the unlawful guidance as a “cornerstone of Home Office asylum policy”. It’s now up to the Home Office to decide exactly how to fix it.