LJ (Kosovo), R (On the Application Of) v Secretary of State for the Home Department

Factual and Procedural Background

The Plaintiff, a citizen of Kosovo, was trafficked to the UK on 31 December 2017. She was detained by the Defendant on 9 March 2018 and initially found not to have reasonable grounds to be considered a victim of trafficking on 19 March 2018. The Plaintiff claimed asylum on 23 March 2018. On 10 September 2018, the Defendant promulgated a policy deferring decisions on discretionary leave to remain for trafficking victims until after asylum claims were determined, a policy later declared unlawful. The Plaintiff issued a civil claim on 6 March 2019 relating to her detention and failure to identify her as a trafficking victim. On 7 March 2019, a reasonable grounds decision was made recognizing her as a victim of trafficking. She requested permission to work outside the Shortage Occupation List ("SOL") from 10 May 2019 onwards, which was repeatedly refused, including a key refusal on 2 January 2020. The Plaintiff’s claim challenging these decisions was issued on 2 April 2020, with permission granted on 5 June 2020. On 14 July 2020, the Defendant made a conclusive grounds decision recognizing the Plaintiff as a trafficking victim but refused discretionary leave to remain due to the outstanding asylum claim. On 5 October 2020, the Plaintiff was granted asylum and subsequently a work permit on 13 October 2020. The Plaintiff ceased to be subject to the challenged rule/policy approximately seven weeks before the hearing, but the court proceeded to address the substantive issues due to their wider importance.

Legal Issues Presented

1. Whether the Defendant's decision to maintain the SOL condition restricting the Plaintiff's employment was lawful and consistent with the European Convention on Human Rights (ECHR) Articles 4 and/or 8 read with Article 12 of the Council of Europe Convention on Action against Human Trafficking (ECAT) and associated law.
2. Whether the Defendant's published policy guidance adequately acknowledges and explains the residual discretion to grant permission to work outside the SOL, and whether its failure to do so renders it unlawful.
3. Whether the framework of rule 360A, the policy guidance, and the Defendant’s decision unlawfully discriminated against the Plaintiff contrary to ECHR Article 14 in conjunction with Articles 4 and/or 8.

Arguments of the Parties

Appellant's Arguments

• The Defendant’s decision on 2 January 2020 was unlawful for failing to consider material factors including the Defendant’s obligations to trafficking victims, the delay in the Plaintiff’s case, and medical evidence indicating that employment would assist her recovery.
• The delay in the Plaintiff’s case was significant and exacerbated the harm caused by restrictions on her right to work.
• ECAT Article 12 mandates measures necessary to assist victims in their physical, psychological, and social recovery, which includes access to the labour market, even prior to a conclusive grounds decision.
• The Defendant’s policy and practice unlawfully deferred discretionary leave decisions until after asylum claims, as found in a related case (R (EOG) v SSHD).
• The Defendant’s decision was irrational in treating the Plaintiff’s circumstances as indistinguishable from other asylum seekers rather than focusing on her status as a trafficking victim.
• The Defendant’s refusal to grant work permission outside the SOL infringed the Plaintiff’s right to private life under ECHR Article 8.
• The published policy guidance fails to acknowledge the Defendant’s residual discretion to grant permission to work outside the SOL, creating a risk of unlawful decisions and discrimination.
• The policy guidance should direct caseworkers to consider ECAT’s objectives and the necessity of measures to assist victims, as established in precedent (PK Ghana).
• The Defendant’s framework and decision unlawfully discriminated against the Plaintiff by failing to treat trafficking victims differently from other asylum seekers in analogous situations, contrary to Article 14 ECHR.

Respondent's Arguments

• Rule 360A and the SOL arrangements are lawful and supported by previous judicial authority (Rostami), which recognized that asylum seekers have no general right to work and that the SOL serves legitimate public policy objectives.
• The Defendant exercised residual discretion in the Plaintiff’s case, considering her mental health and delay, and the decision was within the range of reasonable outcomes.
• The Defendant did not unlawfully fetter discretion by applying rule 360A as a bright line rule.
• ECAT Article 12 does not impose a positive obligation to grant access to the labour market before a conclusive grounds decision.
• Cases such as Negassi establish that restrictions on work rights for asylum seekers do not engage ECHR Article 8 rights.
• Published policy guidance need not detail the exercise of discretion fully; residual discretion is acceptable as a safety net in immigration rules (Munir, Thebo, Gurung).
• The policy guidance’s lack of explicit reference to discretion does not render it unlawful, and caseworkers apply discretion in practice.
• The Defendant denies that the challenged measures engage ECHR Articles 4 or 8 in the manner claimed.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court carefully analyzed the interplay between the Immigration Rules, ECAT obligations, and the Defendant's policies and decisions. It acknowledged the Plaintiff's status as a trafficking victim and the delays experienced in her case. The Court found that rule 360A and the SOL restriction are lawful and that the Defendant properly exercised residual discretion in the Plaintiff’s case, considering her mental health and delay, without irrationality or unlawful fettering of discretion.

Regarding ECAT Article 12, the Court held that it does not impose a positive obligation to grant access to the labour market prior to a conclusive grounds decision, distinguishing this case from R (EOG). The Defendant’s decision to maintain the SOL restriction was therefore lawful.

The Court found the published policy guidance defective for failing to acknowledge the existence of the Defendant's residual discretion and for not directing caseworkers to consider ECAT’s objectives when exercising discretion. This omission creates a real risk of unlawful decisions and discrimination against trafficking victims. The Court emphasized that guidance must be clear to avoid breaches of ECHR rights in a significant number of cases.

On discrimination under Article 14, the Court accepted that trafficking victim status is a protected status and that the SOL restriction and guidance engage the ambit of Articles 4 and 8. The Court found that the failure of the guidance to reflect the discretion and ECAT objectives risks discriminatory treatment. However, the individual decision in the Plaintiff’s case did not amount to unlawful discrimination as her circumstances were considered.

The Court applied relevant precedent to balance the Defendant’s policy objectives with the rights of trafficking victims, distinguishing between the lawfulness of the Immigration Rule itself and the unlawfulness of defective guidance. It concluded that the rule 360A is not unlawful in principle but the guidance requires amendment to properly reflect discretion and ECAT obligations.

Holding and Implications

The Court’s final decision was as follows:

Ground 1 (challenge to the Defendant’s decision to maintain the SOL restriction): FAILED. The Defendant lawfully exercised discretion, and the decision was not irrational or unlawful.

Ground 2 (challenge to the policy guidance for failing to acknowledge discretion and ECAT objectives): SUCCEEDED. The guidance is declared defective and unlawful because it does not identify the discretion or the relevant ECAT objectives, creating a real risk of unlawful decisions.

Ground 3 (challenge to unlawful discrimination by rule 360A, the guidance, and the Defendant’s decision): PARTIALLY SUCCEEDED. The guidance is unlawful for discriminatory reasons, but the Immigration Rule and the individual decision were not unlawful on this ground.

The Defendant is ordered to pay the Plaintiff’s costs.

Implications: This decision mandates revision of the Defendant’s policy guidance to clearly acknowledge and properly direct the exercise of discretion in granting permission to work outside the SOL for trafficking victims, with a view to fulfilling ECAT obligations and preventing discriminatory outcomes. No new precedent was set regarding the lawfulness of the Immigration Rule 360A itself or the Defendant’s individual decision in this case.