Right to work for asylum seekers

UKBA has laid Statement of Changes CM7929 to give effect (or, at least, limited effect) to the judgment of the Supreme Court in ZO (Somalia) [2010] UKSC 36.

This was the case in which the Court held that an asylum claim is still an asylum claim for the purposes of the Reception Directive whether it is an initial claim or a subsequent claim. One of the consequences of this interpretation is that where UKBA fail to make a decision on a subsequent claim for asylum (usually called fresh claims, see this earlier post for some pointers on this subject) for 12 months or more, the applicant for asylum must be give access to the labour market, subject to some potential conditions.

Well, the conditions have been announced and the only jobs for which asylum seekers kept waiting for 12 months or more will be able to apply are those on the shortage occupation list maintained by UKBA, usually for the purposes of Tier 2 (general) applications in the Points Based System. This mainly consists of doctors, nurses and engineers but still includes ballet dancers, I see. Meteorologists are no longer required, apparently.

New paragraph 360 also states that UKBA will only consider applications for permission to work where the asylum claimant has not contributed to the delay in reaching a decision. No further meaning or explanation is provided here. In the vast majority of cases the delay is entirely caused by UKBA sitting on such cases for sometimes years on end, so this is a bit rich.

Self employment or setting up a business are both prohibited.

UK court says asylum seekers can work

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Permission to work

There have been some interesting developments on permission to work for Legacy asylum seekers. Click here for the Story So Far.

I read in some stakeholder minutes recently that UKBA thought it had only be judicially reviewed once about failure to grant permission to work following the case of ZO (Somalia) v Secretary of State for the Home Department [2009] EWCA Civ 442 in the Court of Appeal. I thought this was very surprising at the time, and have now heard that there have been several successful judicial reviews. High Court judges are granting mandatory orders that UKBA grant permission to work. Judgment was given in one such case this week and I’ll post a link to it here once it is reported on BAILII.

This is a classic example of the Home Office wanting it both ways. UKBA lost the case and are so far having no luck appealing it. When UKBA win a court case but the appellants appeal, UKBA insist that the law is at stated in the judgment and will seek to remove people on this basis. When UKBA lose a case and try to appeal, they claim that the judgment should not be enforced. This particular example is even worse, though, as UKBA had the chance to apply for the judgment to be suspended pending resolution of any appeal but declined to do so at the proper time, only to resurrect the argument in individual cases later on.

The legal position is that anyone out there who has been waiting for a year or more for a decision on an asylum claim — whether a first claim or a fresh claim — can seek permission to work and can judicially review UKBA if permission is not granted.

Source: Free Movement

Home Office response on permission to work

Response from Home Office on permission to work for failed asylum seekers with pending cases

Letter dated 23 October 2008

Thank you for your petition of 11 July to the Prime Minister requesting permission to work for failed asylum seekers from Zimbabwe who do not have leave to remain in the United Kingdom. Your letter has been passed to me to reply.

I apologise for the delay in responding to you. The UK Border Agency maintains this country’s proud tradition of providing protection to those who need it, in accordance with its international obligations. All asylum claims are considered on their individual merits and when someone needs our protection we will provide it.

The Government welcomes the enormous contribution that recognised refugees make to our society and economy.
Unsuccessful asylum seekers have had their case considered by a trained, specialist case worker and will have had the opportunity to appeal their case to the independent Asylum and Immigration Tribunal and, where appropriate, to the High Court and Court of Appeal.

It has been determined through a fair and transparent process that they do not need international protection. Where a decision has been made that a person does not require international protection, and there are no remaining rights of appeal or obstacles to their return, we expect unsuccessful asylum seekers to return to their country of origin.

Return and reintegration assistance is available through the International Organization for Migration. We have no current plans to enforce the removal of failed asylum seekers back to Zimbabwe but we will continue to help those who want to go home voluntarily.
Generally, it is not our policy to allow asylum seekers or failed asylum seekers to work.

The only exception is asylum seekers who have been waiting 12 months for an initial asylum decision where this delay cannot be attributed to them. Allowing asylum seekers to work in these circumstances is standard practice in countries which have implemented the EC Directive on reception of asylum seekers.

The Government believes that managed migration is a valuable source of skills and labour to the British economy and there are recognised routes into the UK for those seeking to. work — currently several thousand Zimbabweans are working legally in the United Kingdom on valid work permits obtained through the managed migration process.

However, entering the country for economic reasons is not the same as seeking asylum, and it is important to maintain a clear distinction between the two. It is also important that those who apply for asylum in the UK have their applications processed as quickly as possible.

The UK Border Agency is on track to conclude the majority of cases within 6 months by the end of the year and has a target to conclude 90 per cent of asylum applications within 6 months by December 2011. Those who are recognised as refugees are allowed to work and refugees will therefore increasingly be permitted to work here legally much sooner than in the past.

The skills of new arrivals are unlikely to have become out-of-date within 6 months. Our policy on working is integrated with our policy on asylum support. Asylum seekers who need support to avoid destitution are given it from the time they arrive in the UK until their claim is fully determined (i.e. when their appeal rights are exhausted). Support takes the form of accommodation or subsistence or both.

Even after a claim has been refused and any appeal against that refusal dismissed, we continue to provide support for families whose household included a dependent child aged under 18 years at the time that the asylum claim was fully determined. They continue to be eligible for this support until the youngest child reaches the age of 18 or they depart from the UK.

Similarly, support continues for children and vulnerable adults qualifying for local authority care provision. Other failed asylum seekers can also receive support if they are taking reasonable steps to return or are able to point to a legitimate barrier to return.

The above general position on working applies irrespective of nationality. However, the Prime Minister informed Parliament on 10 July that the Government is actively looking at the situation of those Zimbabweans who do not have a protection need but who have not returned home voluntarily.

That consideration is currently ongoing and the Government will report back to Parliament once this has been completed.

MEG HILLIER MP
PARLIAMENTARY UNDER SECRETARY OF STATE

Source : Nehanda Radio

Still Human Still Here

By Elisha Shamba

The London-based Student Action for Refugees(STAR) network is made up of university based student groups.It was formed in 1994 by a student at Nottingham University and has grown over the years and now has 30 student groups across UK.

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