Last month Refugee Action published a report setting out the case for reforming the current restrictions on asylum seekers’ freedom to work in the UK. Supported by a coalition of over 80 NGOs, think tanks, businesses and faith groups, the ‘Lift the Ban’ campaign proposes two specific legislative changes. First, to give the right to work to those who have waited for six months for a decision on their initial asylum claim or further submission. Second, not to limit this right to the current Shortage Occupation Shortlist.

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The proposed reforms have attracted cross-party support among politicians. Chair of the Conservative Party, Caroline Spelman, initiated a debate in Parliament on 24th October, in which the Minister for Immigration, Caroline Nokes, answered questions about the government’s current position. She concluded: ‘I remain receptive to the views and evidence presented to me on the right to work. However, it is important that we recognise that there is a balance to be struck and that we make sure we make the right decisions.’

The ‘Lift the Ban’ campaign makes two claims that are particularly attractive to the government:

  • allowing asylum seekers to work could contribute net gains of £42.4 million to the government; and
  • most recent polling evidence shows that a change in policy is supported by 71% of the UK public.

In addition, the current number of vacancies in the UK labour market is considerably higher than average historic levels. For example, the accommodation and food services sector has the largest number, with 4.1 vacancies per 100 filled employee jobs. This presents an opportune moment for the government to reform asylum seekers’ freedom to access the labour market.

Refugee Action provides five additional arguments in favour of reform in its report. A right to work for asylum seekers would:

  • Increase integration opportunities;
  • Allow those seeking asylum, and their families, to live in dignity;
  • Allow asylum seekers to use their skills and fulfil their potential;
  • Improve asylum seekers’ mental health; and
  • Challenge forced labour, exploitation, and modern slavery.

These arguments are rooted in the idea that recognising a right to work for asylum seekers is about something more fundamental than striking a balance in the controversial areas of immigration and labour market socio-economics. It is also about providing conditions in which asylum seekers can live as people, with dignity and the chance for self-fulfilment through work.

This draws attention to the interesting, if under-developed, human right to work. At the international level, Art 23(1) of the Universal Declaration of Human Rights provides:

‘Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.’

Furthermore, Art 6 of the International Covenant on Economic, Social and Cultural Rights recognises the role of the state in recognising and safeguarding this right. At the European level, Art 15 of the EU Charter of Fundamental Rights recognises that ‘Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation’, while Art 1 of the European Social Charter provides that protecting a ‘high and stable level of employment’ is one of the Contracting Parties’ ‘primary aims and responsibilities’. Although the European Convention on Human Rights does not mention a right to work explicitly, recent case law has recognised the right under the Art 8 right to private life, in conjunction with other rights. This brief overview shows that, despite its somewhat shadowy status, a human right to work is comprehensively recognised in international and regional human rights instruments.

Why then has the recognition of a right to work as a human right been slow and contested? At a conceptual level, if we recognise a person as a rights holder, there must be a duty-bearer who is under an obligation to take steps to secure the fulfilment of that person’s right. Governments might be wary of the positive claims such a right might generate. On this line of thinking, it is less burdensome on governments if a right to work is regarded as a gift in the purview of legislation, rather than as a claim we each have on the state by virtue of being human. It is vital to note that the ‘Lift the Ban’ campaign makes no demand for the government to provide jobs for asylum seekers, only to remove restrictions on them seeking work at all. This amounts to a negative claim, with the result that concerns about positive duties fall away.

From recognising the right to work as a human right, it follows that any restrictions on asylum seekers’ freedom to work must pursue a legitimate state aim, be necessary, and proportionate. The current UK regime requires asylum seekers to wait for 12 months before applying for permission to work, and then if granted, they are limited to a list of occupations for which labour is deemed to be in short supply. The current list includes options as esoteric as classical ballet dancers. As Refugee Action’s report highlights, these limitations amount to the most restrictive regime for asylum seekers among European countries.

The UK’s regime has attracted increased attention following legal developments in Ireland last year, where the prohibition on asylum seekers working was ruled unconstitutional by the Irish Supreme Court in N.H.V. v Minister for Justice and Equality [2017] IESC 35. The applicant had been in Ireland since 2008 waiting for a decision about his claim. He was provided with accommodation at a state facility and offered employment there, but the Minister for Justice relied on s 9(4) of the Refugee Act 1996 to prevent him accepting the offer before the final determination of his claim. The legislative provision was held to be incompatible with the right to work protected under Art 40.3 of the Irish Constitution, together with the right to equal treatment. The case is therefore particularly important in highlighting the potential of a right to work in legal challenges to government measures that disproportionately restrict the exercise of the fundamental right.

Parts of the Irish Supreme Court’s reasoning in N.H.V. v Minister for Justice and Equality lend legal support to the arguments advanced by Refugee Action based on living with dignity, fulfilling potential, and improving mental health. The Court considered an equivalent restriction on Irish citizens’ freedom ‘difficult if not impossible to justify’, and therefore the question was whether the right ‘protects something that goes to the essence of human personality so that to deny it to persons would be to fail to recognise their essential equality as human persons’ [para 13]. The Court concluded that the effect of s 9(4) of the Act was so draconian that it went to the essence of human personality: ‘The damage to the individual’s self worth, and sense of themselves, is exactly the damage which the constitutional right seeks to guard against. The affidavit evidence of depression, frustration and lack of self-belief bears that out’ [para 20]. The judgment moves beyond a merely instrumental conceptualisation that emphasises the importance of work for subsistence, and instead points towards a justification for the right that regards work as a valuable end in and of itself (Collins 2015).

Conceptualising the justification for a right to work within ideas of dignity and self-development finds further support in the case law of the European Court of Human Rights. There have been successful challenges to restrictions on a right to work under Art 8 ECHR in Sidabras v Lithuania (2004) 42 EHRR 104 and Campagnano v Italy (2006) 48 EHRR 43. Both cases concerned rules that prevented the applicants pursuing their chosen occupations. The Court acknowledged that the applicants were not prevented from pursuing any form of professional activity (as was the case in N.H.V); however, the restrictions on available occupations were still wide enough to affect ‘the applicants’ ability to develop relationships with the outside world to a very significant degree’ (Sidabras para 48). Again, the case law on a human right to work emphasises aspects of work beyond its instrumental value, towards an understanding of the right based upon what Collins terms ‘self-realisation’, namely the meaning and purpose we produce through our work, particularly the relations we construct with others.

From the developing case law, in combination with the empirical evidence collected by the ‘Lift the Ban’ campaign, it is possible to discern how the UK government could approach striking a better balance between competing state concerns and the individual right of asylum seekers to work. Three considerations should be noted:

  • A right to work is a human right

This should be the essential starting point for reform. The international and regional human rights instruments, and developing case law, recognise a human right to work, and by virtue of the HRA 1998, the ECHR’s rulings are directly applicable to the interpretation and application of UK law. The question is not, ‘What freedom to work should asylum seekers be given by the government?’ but, ‘What (if any) restrictions on asylum seekers’ right to work pursue a legitimate state aim and are necessary and proportionate to that aim?’

The implications of this are significant. If the government were to lift the ban temporarily, citing the favourable number of vacancies within the labour market at present, it is not difficult to imagine a similar ban being re-enacted as and when the UK economy next faces the labour market challenges of a recession. A human right to work would, at the very least, demand a greater level of justification from the government were it to attempt to re-impose restrictions, and would temper the scope of any such restrictions in light of the requirements of proportionality. While a temporary lifting of the ban might seem an expedient compromise to effect reform, it would make asylum seekers’ right to work highly contingent upon the fate of the resident labour market. Such contingency is problematic because it both undermines the universal conceptual claim of a human right, and risks re-exposing vulnerable people to the possibility of exploitation in unregulated and illegal forms of work whenever the right is withdrawn, exactly the sort of work which Mantouvalou argues the human right to work exists to safeguard against.

  • Restrictions: legitimate, necessary and proportionate?

The current 12 month waiting period before asylum seekers can apply for permission to work in a restricted number of occupations in the UK is out of step with the rest of Europe. Although human rights law permits states a margin of appreciation, the more invasive and/or numerous the restrictions on the right, the more justification the government will need to provide. In Parliamentary debate, the Minister for Immigration explained the government’s aim: ‘The policy aims to protect the resident labour market and ensure that any employment meets our needs for skilled labour.’ A court is very likely to accept that this is legitimate, but will require the government to show why 12 months, rather than 6 months (as is mainstream among European countries), is necessary to achieve it. The longer a person is prohibited from working, the more damage is done to their sense of self-worth and selfhood – this is exactly where the developing legal conceptualisation of the human right should help to guide reform.

A court may accept a list of occupations as a permissible restriction. However, lists that are so restrictive as to channel asylum seekers into jobs for which they are either over-qualified, or jobs which are impossible to attain because the majority are under-qualified, will be disproportionate interferences with the right to work. The government should be able to show why particular occupations are selected for the list. Mere assertions about an absence of shortages are unlikely to suffice. A rigorous proportionality test, such as the European Court of Human Rights applied in Sidabras,would require evidence of how occupations come to be included or excluded from the list, and when such a list is reviewed given possible fluctuations in the labour market.

  • A right to work as a ‘pull factor’ or a basis for an Art 8 challenge?

The government might advance two arguments regarding broader immigration policy if a right to work for asylum seekers were recognised. First, the Minister for Immigration expressed her concern that, ‘there is evidence that policies affect migrant behaviour’; in other words, that a right to work could act as an incentive for asylum seekers to make their application in the UK rather than the first country in which they arrive where they could seek asylum. However, as the Parliamentary debate highlighted, empirical research – including a report commissioned by the Home Office – does not support this. The reality, evidenced by a survey conducted by the ‘Lift the Ban’ campaign, is that 72% of people had no knowledge of the restrictions on employment for asylum seekers before their arrival, and language and colonial links are much more important factors. In N.H.V, the Irish government argued the same concern before the Court, with supporting evidence of a limited period when applicants had been entitled to seek employment and the number of applications had surged. Although the Court noted this was the type of judgement courts would be ‘extremely slow to second guess’, it held that this concern could be managed by limiting the right to work ‘to defined areas of the economy, perhaps where there is demonstrated need’ [para 18]. In the absence of any cogent evidence to support this argument in the UK’s case, concerns about a right to work acting as a ‘pull factor’ are likely to run into difficulty in any proportionality analysis.

A second, related concern is that asylum seekers who have a right to work could seek to rely upon social links formed through employment to challenge any eventual decision on their asylum claim. They might argue that through their work, they have integrated to the extent that the refusal of their claim constitutes a disproportionate interference with their right to a private life protected by Article 8 ECHR. Refugee Action’s report notes how amendments to the Immigration Act 2014 make this concern misplaced.The Act was amended to provide that ‘little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious’ (s 117B(5) Immigration Act 2014). Therefore this concern is highly unlikely to materialise given the restrictive approach to claims based on private life under the current immigration regime. In sum, both concerns regarding the broader impact of reform ultimately fail to stand up to scrutiny in light of the empirical and legal reality, and therefore should not hinder recognition of asylum seekers’ human right to work.

Emmeline

 

About the author: Emmeline Plews is currently on the Bar course and teaching Labour Law at Oxford. She is a former social worker and BCL graduate.

 

 

 

(Suggested citation: E Plews, ‘Lift the Ban: A Right to Work for Asylum Seekers,’ UK Labour Law Blog, 15 November 2018, available at https://wordpress.com/view/uklabourlawblog.com)

Posted by UK Labour Law Blog

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