The landscape surrounding asylum seekers being entitled to work whilst waiting for a decision on their asylum claim has had a new update with permission being granted in the High Court for a judicial review of the current rules on permission to work policy for asylum seekers.
The current policy
The current policy is that asylum seekers are not allowed to work in the UK. Once an application for asylum has been made a person can only apply for permission to work if:
• they have waited over 12 months for an initial decision on their asylum claim or for a response to a further submission for asylum; and
• they are not considered responsible for the delay in decision-making.
Moreover, if granted permission to work an asylum seeker is currently limited to jobs listed on the UK’s Shortage Occupation List. The jobs on this list are almost exclusively at graduate level or above, some examples of the types of jobs listed in the Shortage Occupation List include:
• Civil engineer
• Graphic designer
Once a decision on the asylum claim has been made permission to work expires. Where the outcome is positive a person will be unrestricted in seeking work whereas where there is a negative decision there is no right to work.
The current landscape for asylum seekers being unable to work has generated widespread criticism for hindering integration, enforcing destitution and increasing vulnerability of asylum seekers. Internationally the UK’s restrictions are far more onerous in comparison with other EU member states with countries such as the Netherlands, France and Austria granting asylum seekers to access the job market after 6 months or less. Furthermore, some countries offer even more generous reception conditions such as Canada who allow asylum seekers to apply for a work permit immediately after their asylum claim has been lodged.
The current challenge to the UKs’ restrictive approach was granted permission for a Judicial review in June 2020. The legal representatives acting in this case argue that the restriction of jobs that an asylum seeker can carryout to only those that are on the shortage occupation list essentially prevents those who experience significant delays in a determination on their asylum claim to be able to work in any role. The Home Office prior to the commencement of litigation agreed to consider if the asylum seeker in this particular case should be granted permission to work outside the shortage occupation list but ultimately this was denied on the basis the asylum seeker had not raised any exceptional circumstances. The Claimant was granted permission based on the fact that the Home Office had provided ‘no clear policy as to the circumstances in which such exceptional permission might be given’.
The case has yet to reach an outcome but has the potential to change the landscape for those asylum seekers who face lengthy delays in waiting for a determination and force a change in a policy that currently limits employment to those listed on Shortage Occupation List which ‘arguably renders access to the labour market illusory’. It is likely, unless the Home Office wants to pursue this to an outcome in the courts, that the Home Office is likely to change its policy on an asylum seeker right to work in the UK and in what circumstances this will be allowed.
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