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

Factual and Procedural Background

This claim arises from a series of legal challenges concerning the rights of asylum seekers to work in the United Kingdom during the period their refugee status is being determined. Domestic rules allow an asylum seeker to apply for permission to work if an asylum application has been pending for one year, but such permission is restricted to jobs listed on the Secretary of State's Shortage Occupation List ("SOL"). The Claimant challenges this restriction as contrary to European Union law and his human rights.

The Claimant, a national of Iran, arrived in the UK on 29 December 2001 and claimed asylum. His initial claim was refused and subsequent appeals dismissed. He made further asylum applications and representations, some of which were outstanding for years. In 2007, he was convicted and imprisoned for possessing false identity documents. The Secretary of State made a deportation order in 2007, which was upheld on appeal, exhausting the Claimant’s appeal rights by April 2008. Despite being under obligation to leave the UK, he remained in the country.

In April 2010, the Claimant made fresh representations seeking revocation of the deportation order, which were refused in November 2011, with appeals dismissed by July 2012. During this period, the Claimant applied for permission to work, which was granted in August 2011 but restricted to SOL jobs. The Claimant has never obtained employment under this permission and has relied on state support and charitable assistance.

The Claimant challenges the restriction to SOL jobs on three grounds: incompatibility with EU law (the Reception Directive and the Charter of Fundamental Rights of the EU), incompatibility with Article 8 of the European Convention on Human Rights, and unlawfulness of the Immigration Rules for failure to be laid before Parliament as required by statute (the "Alvi ground"). The claim proceeded through the courts with permission granted on the EU law ground, refused on the Article 8 ground, and an application to amend to include the Alvi ground opposed and refused.

Legal Issues Presented

1. Whether the restriction of asylum seekers' permission to work to occupations on the Shortage Occupation List is incompatible with EU law, specifically the Reception Directive and the Charter of Fundamental Rights of the European Union.
2. Whether the restriction infringes the Claimant's rights under Article 8 of the European Convention on Human Rights (right to respect for private and family life).
3. Whether the relevant provisions of the Immigration Rules incorporating the SOL were unlawful because they were not laid before Parliament in accordance with the Immigration Act 1971 (the "Alvi ground").

Arguments of the Parties

Appellant's Arguments

• Article 15(1) of the Charter confers a right on "everyone," including asylum seekers, to engage in work.
• Any derogation from this right by Member States is limited to the conditions set out in article 11 of the Reception Directive.
• The restriction to jobs on the SOL does not respect the essence of the right to work, being disproportionate and effectively denying asylum seekers meaningful access to employment.
• The Immigration Rules unlawfully fetter the Secretary of State's discretion by permitting no consideration of individual circumstances or "near misses" to the SOL.
• The restriction also breaches the Claimant's right to private life under Article 8 ECHR by interfering with his ability to work.
• The Immigration Rules incorporating the SOL were unlawful as they were not laid before Parliament as required, rendering the restriction invalid.

Respondent's Arguments

• The Charter does not confer a general right to work on non-EU nationals or asylum seekers; the right to work is limited to EU citizens as per article 15(2) and (3).
• The Reception Directive article 11 does not confer a positive right to work but allows Member States discretion to impose conditions on access to the labour market.
• The SOL restriction is a legitimate, proportionate policy designed to protect the domestic labour market and prioritise UK nationals and EU citizens.
• The Immigration Rules do not require a "near miss" discretion; rules must be clear and predictable.
• The restriction does not amount to an interference with Article 8 rights as there is no general right to work under that provision.
• The Alvi ground is inapplicable as the SOL does not constitute a "rule" regulating leave to enter or remain, and even if it did, the procedural breach caused no loss and the Claimant is not entitled to relief.
• The application to amend to include the Alvi ground was late and would be refused in the exercise of discretion.
• Damages are not recoverable as any breach was not sufficiently serious and the Secretary of State made a bona fide attempt to comply with EU law.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging the domestic and EU legal framework governing asylum seekers’ access to work, emphasizing the wide discretion afforded to the State in balancing socio-economic policies and individual rights. It rejected the Claimant's primary contention that article 15(1) of the Charter confers a general right to work for all, including asylum seekers, noting that the Charter does not create new rights and distinguishes between EU citizens and non-EU nationals.

The court found that article 11 of the Reception Directive does not confer a positive right to work but imposes an obligation on Member States to determine conditions for labour market access. This provision allows for restrictions and does not guarantee asylum seekers actual access to employment.

The court accepted that the Shortage Occupation List (SOL) restriction serves legitimate public interests: prioritizing UK nationals and EU citizens in the labour market, protecting the domestic labour market, preventing abuse of the asylum system by economic migrants, and directing asylum seekers to occupations with genuine labour shortages. The SOL is based on independent expert advice and a transparent methodology, which was not challenged.

In applying proportionality, the court held the measure is not manifestly inappropriate given the legitimate aims pursued. It emphasized the wide margin of appreciation afforded to the State in immigration and labour market policy, especially in politically sensitive areas. The court rejected the Claimant's argument that the SOL is disproportionate or that alternative, less restrictive measures would be feasible.

The court also rejected the argument that the Immigration Rules unlawfully fetter discretion by not allowing consideration of individual circumstances or "near misses," affirming established case law that Immigration Rules are rules without such discretion.

Regarding Article 8 ECHR, the court found no engagement of the right to respect for private life as there is no general right to work, and prior appellate authority bindingly held that restrictions on work permissions for foreign nationals do not constitute an interference under Article 8 in these circumstances.

On the Alvi ground, the court held that the SOL restriction, as applied to asylum seekers, is not a "rule" regulating leave to enter or remain and therefore not subject to the statutory procedural requirements for laying before Parliament. Even if it were, the procedural breach caused no loss and no substantive relief would follow. The application to amend to include this ground was refused as late and without merit.

Finally, the court considered damages, concluding that any breach of EU law was not sufficiently serious to justify damages, and that the Secretary of State had made bona fide attempts to comply with EU obligations.

Holding and Implications

The court's final decision is as follows:

• Ground 1 (EU law): The substantive application for judicial review is refused. The restriction of asylum seekers' permission to work to occupations on the SOL is not unlawful under EU law.
• Ground 2 (Article 8 ECHR): Permission to proceed is refused. The claim that the restriction interferes with the right to private life is unarguable.
• Ground 3 (Alvi ground): Permission to amend the grounds of claim to include this ground is refused as late and without merit.

The direct effect of this decision is that the Secretary of State's policy restricting asylum seekers' permission to work to occupations on the SOL remains lawful and enforceable. No new precedent expanding the right to work for asylum seekers under EU law or the ECHR is established. The case confirms the wide discretion of the State in immigration and labour market policy and the limited scope of rights conferred on asylum seekers in this context.