The Right to Work of Claimants for International Protection, a Legal Toolbox

A research paper, by Julien BLANC*

Abstract

The capacity of refugees and asylum seekers to integrate in the host country or to find a durable solution abroad is enhanced when the receiving State hosting the asylum seekers recognize their right to engage legally in self- employment, wage- earning employment or in liberal profession at an early stage of the refugee status determination process. Many States have nevertheless de-coupled granting automatically permission to work from the introduction of individual application claims for international protection on the basis of migration deterrent concerns and the right of States to regulate employment of foreigners. Restrictive domestic interpretations of human rights law and standards have lead this vulnerable category of migrants to suffer from unduly prolonged period of deprivation and denial of their right to work by the State, amounting to forced destitution, in breach of human dignity.

This paper may interest persons who examines the right to work of international claimants for protection from a legal perspective. It aims to increase awareness and facilitate applicability of the right to work of claimants for international protection at domestic or regional levels by detailing the relevance of international and regional norms and standards for claimants in need of international protection.

SRLAN Library on the Social, Economic and Cultural Rights of Refugees

By registering to the SRLAN Online Library one will gain access to a permanently actualized list of public documents focusing on the Economic, Social and Cultural Rights of asylum seekers and refugees. A valuable tool to keep informed of new or already existing publication, including those on the right to work of asylum seekers and refugees.

’'Don't look a gift horse in the mouth', K. Boele

We reproduce an interesting article by K. Boele, from the Utrecht University, Science Shop of Law analysing a case law emanating from the Dutch Supreme Court in the Netherlands, where a refugee has been denied the right to work due to the interpretation of the Court.

The author of this publication deplores the interpretation of the Court and analyses the content of this case law, in line with the international human rights norms, including the disposals of the Reception Conditions Directive contained in EU law. We have not been able to date this valuable article, which seems to date already, nor to find the X versus the Netherlands case from the Dutch Supreme Court.

The article is named ‘Don’t look a gift horse in the mouth’, by K. Boele from the Science Shop of Law, Economics and Governance of the Utrecht University (ISBN: 978-90-5213-192-4 prof. mr. I. Giesen and dr. A.C. Buyse) 

Maastricht Guidelines on Violations of Economic, Social and Cultural Rights

Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, January 22-26, 1997.

These guidelines are designed to be of use to all who are concerned with understanding and determining violations of economic, social and cultural rights and in providing remedies thereto, in particular monitoring and adjudicating bodies at the national, regional and international levels.

NGOs' statement on reception standards for asylum seekers

NGO Statement: reception Standards for asylum seekers

This NGOs' statement, dating from 2001 analyses the relevant reception standards for asylum seekers, including the right to work of asylum seekers. The positions on the right to work of asylum seekers have been extracted from this Statement (see below). 

Refugees' experience of the right to work in Ecuador

To have work is to have life, refugees' experience with the right to work in Ecuador, a June 2011 Asylum Access report 

This report was researched and drafted by Karolien van Teijlingen at Asylum Access Ecuador, a local office of Asylum Access. Asylum Access is a US- based international nonprofit organization dedicated to making refugee rights a reality in Africa, Asia and Latin America. Asylum Access achieve this mission by providing legal information, advice and representation directly to refugees in their first countries of refuge, and by advocating for the rights of refugees worldwide.

Key Findings

International legal obligations on the right to work

Human Rights and Work

What is the Human Right to Work? What are the Human Rights of Workers?

The Human Right to Work is the human right of all women, men, youth and children to dignified, creative and productive labor, free from discrimination and exploitation, enabling all persons to live in peace, security, justice and dignity. All workers have human rights to basic labor protections. Engagement in any kind of production should be fruitful and rewarding.

The Human Rights at Issue

The human right of all persons to dignified and fulfilling work includes the following universal, indivisible, interconnected and interdependent human rights:

Bill allowing Burmese refugees to work in Malaysia

This article sums up the 2010 debate following the bill allowing Burmese refugees to work in Malaysia.

Right to work for Palestinian refugees in Lebanon

Those who are interested by the law that was passed in Lebanon to allow Palestinian refugees to work, and by an analysis of its limit, will usefully refer to Jillian C. York article and Oussama Hayek blog. For an in depth analysis of the right to work of Palestinian refugees situation in Lebanon, see also Elizabeth Hebert post and Najdeh webpage, an NGO conducting a campaign on the right to work for Palestinian refugees in Lebanon with the support of Christianaid.


Christian Aid's work and Najdeh are campaigning for the right to work

Asylum Access campaign on the right to work for refugees

Asylum Access is an American NGO campaigning, among others, for the right to work of refugees around the world.

UNHCR Interpretation of the notion of 'Lawful stay' (Geneva Convention on Refugee Status)

UNHCR in its note ‘Lawfully staying’-A note on Interpretation' dating from 1988 interprets the notion of the 'lawful stay' of asylum seekers and refugees. The 1951 Geneva Convention on Refugee Status (GCRS) does not use the term asylum seekers but covers them. Lawful stay is a pre-requisite for asylum seekers and/ or refugees to access the rights granted under the conditions of article 17 and 19 GCRS (right to wage-earning and right to exercise a liberal profession). 
Article 18 GCRS does not require asylum seekers to be 'lawfully staying' in the host country, as mere "lawful presence" is required to grant the right to work on asylum seekers and refugees who are self- employed under the conditions of article 18 GCRS.  
One will refer to Pr. Grahl Madsen comments on article 17 to 19 Geneva Convention on Refugee Status for more information on the scope of the right to work of asylum seekers and refugees.

Legal comments on art. 17- 19 Geneva Convention on refugee status, right to work

COMMENTARY ON THE 1951 REFUGEE CONVENTION (GCRS)

(by Professor Atle Grahl-Madsen, 1962-1963)

Professor Grahl- Madsen commentaries will be of great use to lawyers, judges and legal actors who analyse deprivation of the right to work of asylum seekers and refugees in the light of article 17 to 19 of the GCRS. Article 17, 18 and 19 grant the right to work to asylum seekers and refugees when they are 'lawfully present' or 'lawfully staying' in the host country. UNHCR 'Note on 'lawful staying' and the 'Michigan Guidelines on the right to work' contains some elements of definition of the notion of 'lawful stay' and 'lawful presence'. 'Lawful stay' and 'lawful presence' should indeed be understood according to an international definition and not according to national domestic measures. 

Amended version of the EU Reception Conditions Directive (recast)

In the European Union, but for Denmark and Ireland who opted out of the EU Reception Conditions Directive (hereafter RCD), the right to work of asylum seekers (and now persons in need of international protection), is governed by article 11 of the Reception Conditions Directive (see our caselaw section, case of ZO. vs SSHD, UK Supreme Court).

European Court of Human Rigths, MSS V. Greece and Belgium

In the MSS v. Greece case, the European Court of Human Rights replies to the Greeck government and considers that granting in theory and in its domestic law the right to work to asylum seekers, without providing for adequate material reception conditions or support constitutes a breach of human dignity as the European Reception Conditions Directive had to be respected by the Greeck authorities.

Read our summary of the MSS v. Greece case. The parts relating to the right to work of asylum seekers have been highlighted in yellow.

Welfare-to-work reform policy and its consequences on refugees looking for a job

Isabel Shutes published recently in the Journal of Social Policy a research paper ('Welfare-to-Work and the Responsiveness of Employment Providers to the Needs of Refugee') on the consequences of the welfare to work reform policy and its consequences on refugees looking for a job.

STAR Campaign, Students campaigning in the UK

UK, STAR Alliance, Students, campaigning materials

Find relevant and useful campaigning materials (leaflet, pros and cons sheet...) and information on STAR Campaigns, a student campaign in the UK on access to work and education of asylum seekers and refugees.

Some of the videos produced by STAR...

Lebanon campaign on the right to work for Palestinian refugees

To learn more on the legislative changes in Lebanon and right to work campaigns allowing Palestinian refugees to work in Lebanon, see Elizabeth HEBERT blog. 

Palestinians and their right to work in Lebanon, Jordan and Syria

Elizabeth Hebert, in her research paper A protracted conflict: Palestinians and their right to work in Lebanon, analyses the integration of Palestinians refugees in Lebanon, Jordan and Syria. It focuses on access of Palestinian refugees on the labour market in Lebanon and analyses in depth obstacles to their access to the labour market. 

You can find a short summary of Elizabeth Hebert paper extracted from her abstract (source: The Human rights blog):

Welcome to "Work for asylum seekers and refugees"

Welcome to the blog "Work for asylum seekers and refugees". In this blog, we have been collecting documents, caselaw and research papers on the right to work of asylum seekers and refugees.

This blog is a tool to promote the right to work of persons in need of international protection.
We hope that you will find useful material on this blog for your research, preparation of legal or political argumentation.

Do not hesitate to contribute by sending us relevant documents (post a comment after a message after becoming a member).

National programmes facilitating access to the labour market of asylum seekers

The European Union, under the EQUAL funding asylum seekers and refugee line, has financed domestic programmes enhancing access of asylum seekers to the labour market. EQUAL webpage contains both practical activities and political recommendations on access of asylum seekers to the labour market at a European scale.

Economic and social Council General Comment n°18 The right to work

General Comment n° 18, Economic and Social Council (UN), the right to work

The Economic Social Council (ESC) defines States obligation to protect, respect and fulfill the right to work. The ESC gives precision on the normative content of the right to work, its personal scope and general legal States' obligations among others.

Article 8 ECHR and deprivation of the right to work of asylum seekers

Long term deprivation of the right to work for asylum seekers as a violation of article 8 ECHR?

This article analyses the implication of article 8 ECHR on the right to work of asylum seekers (and potentially all vulnerable migrants, non- returnables or migrants in need of international protection) deprived of the right to work by governments during long period of time.

The European Convention on Human Rights (ECHR) geographical scope is wider than geographical scope of article 11 of the current Reception Conditions Directive. It might therefore prove a useful tool in European Countries not covered by the Reception Conditions Directive (such as Ireland and Danemark among others).

Interestingly, in ZO and others v. SSHD (see previous post), UK Supreme Court did not choose to examinate deprivation of the right to work under article 8 ECHR (as previously done by 'lowest' court).

Right to work for asylum seekers caselaw South Africa

Asylum seekers right to work or study and the right to dignity

Whilst awaiting outcome of asylum application the South African Department of Home Affairs were reluctant to grant automatic rights to work or study for asylum seekers whilst their main asylum application was pending. The landmark case of Minister of Home Affairs in South Africa and Others v Watchenuka and Another 2004 (4) SA 326 (28 November 2003), the Supreme Court of Appeal found that the general prohibition on work or study for asylum seekers to be unlawful based on the founding right in South African Constitution that everyone has the right to dignity.

Michigan guidelines on the right to work

The Michigan guidelines on the right to work, drafted in November 2009 by the University of Michigan, recall the human rights legal framework relevant to the right to work of refugees and asylum seekers from an international and regional perspectives. It analyses States duties to respect, protect and fulfill the right to work of refugees and asylum seekers.

Caselaw UKSC36 ZO and others (final)

The UK Supreme Court heard on 17-18 May 2010 the first case to reach the highest domestic court raising a question of the proper interpretation of a provision of the EU Reception Directive (2003/9/EC).

The hearing is of interest both in respect of the approach taken to construction of provisions of an EU Directive, and also due to the significant impact it has for a large number of individual asylum seekers who have been trapped in a legal limbo, often for years, waiting for determinations of their fresh claims and without the right to work.

The single issue raised by the appeal was whether a person whose asylum claim has been finally determined against him and who makes a subsequent claim for asylum in the same country, comes within the ambit of the Reception Directive and thus is able to enjoy the benefits conferred by Article 11(2) of that Directive which effectively enables him to work.