Introduction

The case of Mikhail Bakushev (AP) against Secretary of State for the Home Department [2022] CSOH 67, adjudicated by the Scottish Court of Session on September 20, 2022, addresses a pivotal issue concerning the employment rights of asylum seekers during the pendency of judicial reviews of their immigration status. The petitioner, Mikhail Bakushev, an asylum seeker, sought interim orders allowing him to continue his employment despite the refusal of his fresh claims application by the respondent, the Secretary of State for the Home Department.

Summary of the Judgment

Lord Ericcht, delivering the opinion of the court, granted the petitioner's opposed motion for interim orders. This decision allowed Bakushev to maintain his employment while his judicial review proceeded. The respondent challenged this interim decision, emphasizing policy considerations and the absence of explicit provisions in the Immigration Rules to support such interim employment permissions during judicial reviews. Nonetheless, the court affirmed its inherent jurisdiction, prioritizing the balance of convenience and the prima facie case presented by the petitioner.

Analysis

Precedents Cited

The judgment extensively references R (Rostami) v SSHD [2013] EWHC 1494 (Admin), a landmark case that explored the intersection of immigration control and labor market needs. In Rostami, the court elucidated the policy factors involved when granting employment permissions to asylum seekers, emphasizing the protection of the domestic labor market and the prioritization of roles that cannot be readily filled by UK nationals. Lord Ericcht leverages Rostami to underscore the structured approach required when balancing individual rights against broader public policy objectives.

Legal Reasoning

The court's legal reasoning hinged on two crucial aspects: the existence of a prima facie case and the balance of convenience. Lord Ericcht reiterated the court's inherent power to regulate matters between parties during litigation, irrespective of specific provisions in the Immigration Rules. He clarified that Rule 360E does not constrain this inherent power, as Parliament did not explicitly limit the courts' authority in this context. The court found that Bakushev presented sufficient grounds to challenge the decision, and the potential hardship resulting from denying him continued employment tilted the balance in his favor.

Impact

This judgment sets a significant precedent by affirming that asylum seekers can secure interim employment permissions during judicial reviews, even in the absence of explicit statutory provisions. It reinforces the judiciary's role in ensuring fair treatment of individuals awaiting immigration decisions and may influence future cases where interim relief is sought. Additionally, it underscores the necessity for authorities to communicate decisions promptly, as delays can further complicate the petitioner's circumstances and sway judicial consideration.

Complex Concepts Simplified

Interim Orders

Interim orders are temporary measures granted by a court to maintain the status quo or provide immediate relief pending the final resolution of a case. In this context, interim orders allowed Bakushev to continue working while his judicial review was underway.

Prima Facie Case

A prima facie case refers to a case that has sufficient evidence to proceed to the next stage of litigation unless disproven. Bakushev demonstrated such a case by highlighting potential errors in the decision-making process regarding his asylum claim.

Balance of Convenience

The balance of convenience is a test used to determine which party would suffer more harm from granting or refusing an interim order. The court assesses which outcome would cause less disruption or injustice between the petitioner and respondent.

Rule 360 of the Immigration Rules

Rule 360 pertains to the conditions under which asylum seekers without a right to work may be granted temporary permission to work in the UK if their asylum application is pending beyond a certain timeframe. It includes stipulations about the types of occupations permitted, typically those identified as shortages in the labor market.

Conclusion

The judgment in Mikhail Bakushev (AP) v Secretary of State for the Home Department establishes a critical legal principle: the judiciary retains the authority to grant interim employment permissions to asylum seekers during judicial reviews, independent of explicit provisions in the Immigration Rules. This decision balances individual rights with public policy considerations, ensuring that asylum seekers are not unduly disadvantaged while their legal challenges are adjudicated. The case underscores the importance of timely administrative actions and the courts' role in safeguarding fair treatment within the immigration system.