The Right to Work of Asylum Seekers and Refugees Publication by COSTELLO, Cathryn; O’CINNÉIDE, Colm / May 2021

 

The Right to Work of Asylum Seekers and Refugees

Publication by
COSTELLO, Cathryn; O’CINNÉIDE, Colm / May 2021

This working paper analyses the right to work to asylum seekers and refugees. Part I briefly sets the scene, with an account of the reality of work rights restrictions for asylum seekers’ and refugees. Part II analysis the right to work of asylum seekers and refugees, specifically examining the right under international human rights law of global and regional scope.

ECRE Paper: The Right to Work for Beneficiaries of International Protection

In December 2016 ECRE released the paper The Right to Work for Beneficiaries of International Protection: 

The ability to engage in decent work is a fundamental human right, integral to human dignity and self-respect. Failure to ensure proper access to the labour market hinders the ability of a beneficiary of international protection to successfully integrate into their new society, and leaves them at risk of destitution. It may also result beneficiaries of international protection engaging in unauthorized work in dangerous and degrading conditions, or their unauthorized onward secondary movement.

As a result, it is essential to ensure beneficiaries of international protection are given effective access to the labour market. In order to effectively enjoy the right to work, individuals not only need effective access to the labour market, but also access to vocational training courses and to have their qualifications recognised in a reasonable period of time. Studies have revealed that when beneficiaries of international protection initially enter the labour market they frequently only have access to jobs subsidised by the State and/or requiring a lower level of qualifications or skills.

Work and Social Welfare for Asylum Seekers and Refugees: a study in 8 Selected EU Member States

The European Parliament Research Service has recently released a paper entitled ' Work and Social Welfare for Asylum-seekers and Refugees: Selected EU Member States' (EPRS, Dec. 2015) 

This publication provides an overview of the international and EU legal framework on the right to work and the access to social welfare for asylum-seekers and refugees. The legislation and practice in eight Member States is examined, while the economic impact and employment prospects of asylum-seekers and refugees in the EU are also assessed. It has been produced at the request of a member of the Committee of the Regions, in the framework of the Cooperation Agreement between the Parliament and the Committee.

Coalitions needed towards humane reception policies to promote already existing solutions

Are politicians lagging behind companies, NGOs&trade unions? 

At a time when reception system in Europe are sometimes overwhelmed and new asylum seekers / refugees will face challenges to integrate in the host labour markets and not experience poverty, it seems particularly absurd to legally bar them from working. Barring them from working risks only to make them more vulnerable to exploitation and increase the workforce available on the black market (increasing competition for the other workers, resulting also in the loss of taxes for the State and disempowerment of asylum seekers). 

We strongly believe that NGOs, companies, trade-unions and business associations should voice their concerns and unite in common political campaigns to promote the right to work of asylum seekers and refugees so as to remove existing legal and practical obstacles to their access to the labour market.

Broad coalitions needed!

UNHCR released comments on the Reception Conditions Directive (recast)

Asylum seekers waiting for a decision on their application in the European Union must be provided with certain necessities that guarantee them a dignified standard of living according to the EU Reception Conditions Directive that set minimum standards that Member States should respect.

In the past (and present), diverging practices among Member States however led to an inadequate level of material reception conditions for asylum seekers. The Reception Conditions Directive establishes for this reason- and in order to create a level playing field within the EU- common standards of conditions of living of asylum applicants. The previous version of the Directive is still valid until 21 July 2015 when a new one (recast) becomes applicable. It ensures (in legal theory at least) that applicants should have access to housing, food, health care and employment, as well as medical and psychological care.

Article 15 of the Reception Conditions Directive (recast) grants the right to work to asylum seekers but allows for the restriction of this right by EU Member States (who remain free to adopt more favourable standards nevertheless as the Directive only sets minimum standards). EU Member States must transpose the disposals contained in the Reception Conditions Directive (recast) within their legal order by July 2015.

Article 15 of the Reception Conditions Directive (recast) states that: 

German report on the integration of asylum seekers and refugees in the labour market

The Bertelsmann Foundation released a report studying integration of asylum seekers and refugees in the job market in Germany, where asylum seekers are now allowed to work after three months, enhancing their integration prospects. But long asylum procedures still constitute an obstacle to finding job on the labour market, as employers are afraid to employ them without a definitive answer on their refugee status stated the report. Examination of the refugee status in Germany takes in average 7.1 months. 

But waiting time varies depending on nationality: Eritreans with a very high recognition rate nevertheless have to wait for 10.1 months, Afghans 16.5 months and Pakistanis 17.6 months. The report quotes statistics saying that 84% of the German people (surveyed) were in favour of a more rapid integration of asylum seekers in the job market. Reducing (without lowering the quality of the decision making process) the length of refugee status determination status is therefore a major political step to promote refugees integration in the labour market and lower State's dependency of asylum seekers during refugee status determination process.

Make them work for free: Italy's interior minister supports forced labour for asylum seekers?

In an article from Africa Time, dated 12 May 2015, called 'Make them work for free' it is possible to read that Italian Interior's ministry has recently declared that asylum seekers should be made to work for free on projects of public interest while waiting for their refugee status, evoking a controversial decree issued several months ago. 

The author of this blog advocates for the right to work of asylum seekers to be legally granted as soon as possible after the lodging of their asylum claim. It facilitates their integration in the labour market once they are recognized refugee, or their return (with the money and experience earned in the host country). But we condemn any policy that would force asylum seekers to work for free as it amounts to forced labour that contradicts international human rights and labour law. Between 1983 and 1990 German authorities have conditioned the material support of asylum seekers to the acceptation of jobs, provoking adamant condemnations of the International Labour Organisation. 

Ad-Hoc Query on the Access to the labour Market for Asylum Seekers

The European Migration Network has answered to an "Ad-Hoc Query" of Austria (dating from 9th January 2013) by compiling the legislation of 21 European Countries on access to the labour market for asylum seekers in view of the revision of the EU Reception Conditions Directive. 

The European Migration Network Compilation covers the following countries:

Belgium, Bulgaria, Cyprus, Czech Republic, Estonia, Finland, France, Greece, Hungary, Italy, Latvia, Luxembourg, Malta, Netherlands, Poland, Slovak Republic, Slovenia, Spain, Sweden, United Kingdom, Norway.

Joint Colloquium on the Right to Work for Refugees in Europe

The Council of Europe hold a Joint Colloquium on the Right to Work for Refugees in Europe (the 27th September 2012) in Strasbourg. The programme is available, as well as the opening remarks speech by Gabriella Battaini-Dragoni, Deputy Secretary General of the Council of Europe. We reproduce the following excerpts of the opening speech: 

The topic of today's Colloquium, the right to work for refugees, is of paramount importance. The UNHCR estimates that there are about one and a half million recognised refugees in Council of Europe member states. There are no accurate estimates as to how many refugees are in formal employment in member states, but as we will hear today, the reality is that many refugees face many barriers in exercising this right which is guaranteed by the European Social Charter.

Reworking the Relationship between Asylum-Seekers and Employment

We would like to add to our thematic bibliography on the right to work of refugees the following book: Reworking the Relationship between Asylum and Employment, By Penelope Mathew, Published 3rd May 2012 by Routledge:

State of play, Common European Asylum System

At its meeting on 25-26 October 2012, the Justice and Home Affairs Council confirmed the agreement reached between the Council and the European Parliament on the recast of the Reception Conditions Directive (containing disposals allowing asylum seekers to access the labour market- see our previous posts- on that topic for more information on the content of article 15 of the Reception Conditions Directive). The adoption of the revised ("second phase") version of the Reception Conditions Directive is expected at the end of the year 2012 according to the deadlines set by the Stockholm Programme, but has not been adopted yet, despite political agreement between the European Parliament and the Member States (in the Justice and Home Affairs Council).

Steeve Peers in its latest State- of play update of the Common European System Statewatch Analysis interestingly mentions:

Political Agreement reached on the Reception Conditions directive at the Justice and Home Affairs Council

According to the Cyprus presidency of the European Union press release (dated 25/10/2012):

 "The Justice and Home Affairs Council (JHA) achieved progress in several legislative proposals for the establishment of the Common European Asylum System (CEAS), as it adopted today, October 25, a Political Agreement on the Reception Conditions Directive. Common European Asylum System moves a step closer.

The Reception Conditions directive, toward a limited legislative progress on access to the labour market of asylum seekers

Context

The current EU rules on claimants for international protection's access to the labour market are set out in Directive 2003/9 (the ‘2003 Reception Conditions Directive’, hereafter RCD), which applies to all Member States except Denmark and Ireland. The UK has opted out of the 2008 proposal (as revised in 2011, and now agreed) to amend these rules, but the 2003 RCD will continue to apply to the UK regardless.

Currently  article 11 of the 2003 EU Reception Conditions directive explicitly recognizes the right to work to asylum seekers, and contingently to claimants for subsidiary protection. 

ECRE Comments on recast of the Reception Conditions directive

We reproduce hereafter ECRE (the European Council on Refugees and Exiles) Comments  on the Amended Commission Proposal to recast the Reception Conditions Directive (COM(2011) 320 final) that were released in September 2011. ECRE Comments were released before June 2012 and September 2012, when the Amended Commission Proposal to recast the Reception Conditions Directive was harshly discussed between the Council, the European Commission and the European Parliament (see our next post on that topic for more informations on the agreement reached after the "trialogue process"). We nevertheless reproduce ECRE Comments as it highlights interesting points:

ECRE Comments: 

A selected bibliography (with hyperlinks) on the right to work of asylum seekers by Julien BLANC

We would like to provide you with the following (non extensive) bibliography on the right to work of asylum seekers and refugees. The following themes are covered: 

- National campaigns/ situation in Cyprus, Germany, France & Ireland.

- Obstacles and discrimination experienced by asylum seekers to access the labour market, 

- ECRE Recommendations and papers on the right to work 

- Researches to "deconstruct the pull factor theory" and research findings on the right to work  as a factor influencing secondary movement

- Researches on the human and financial cost of denying the right to work, on exploitation

- Research and position papers of trade unions and local administration on the topic

- Research, case law and norms relevant (Universal, regional,in the EU, the UK or South Africa)

This bibliography will usefully be completed by consulting the SRLAN webpage on the economic, cultural and social rights of refugees.

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.

’'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)