Legal work rights for refugees in Malaysia is a first positive step forward

Legal work rights for refugees in Malaysia is a positive step forward but they must be offered adequate protections for the scheme to succeed long-term writes Gerhard Hoffstaedter on the Asia & the Pacific policy society blog.

Several news outlets have reported on a pilot scheme to provide work rights to 300 Rohingya refugees in Malaysia. This scheme is a cooperation between the Malaysian government and the UN Refugee Agency (UNHCR). It has been long in the making and refugee advocates, as well as the UNHCR, have been arguing for more regularisation of refugees in Malaysia for a long time.

The announcement comes at a time of escalating violence against the Rohingya in Myanmar and reports of ethnic cleansing. The Malaysian government’s approach to the plight of the Rohingya has long been guided by the ASEAN policy of non-interference. However, last week the government demanded action from Myanmar in a public statement and summoned the Myanmar ambassador to convey their message.

Malaysia is not a signatory to the UN refugee convention or protocol and therefore does not recognise refugees legally. The UNHCR is allowed to register refugees on the understanding that the majority are to be resettled to safe third countries, such as the US, Australia, Canada and European countries. Currently, over 150,000 refugees are registered by the UNHCR with many more remaining unregistered and very vulnerable.

The UNHCR does not have sufficient means to look after so many refugees, which necessitates their employment in often dirty, dangerous and demeaning occupations. Without outside help, refugees turn to the large Malaysian shadow economy, where they find badly-paid work, are often cheated out of their wages, or worse. When accidents happen, entire families can become destitute overnight as few have health insurance or access to workers’ compensation schemes.

Overview of Right to Work for Refugees Syria Crisis Response: Lebanon & Jordan

The International Rescue Committee (IRC) in its' policy paper 'Overview of Right to Work for Refugees Syria Crisis Response: Lebanon & Jordan' examines the access to work of Syrian refugees in Jordan and Lebanon, as codified under international law. It then considers the domestic law in Jordan and Lebanon that governs work rights for Syrian refugees and provides recommendations for future policy and practice to help realize their right to work. 

Council of Europe Resolution 1994 (2014): Refugees and the Right to Work

We would like to draw the attention on the resolution 1994 (2014) of the Parliamentary Assembly of the Council of Europe called 'Refugees and the Right to Work' adopted in April 2014.

In this resolution the Parliamentary Assembly states that: 

Among member States of the Council of Europe, it is common practice to grant the right to work to refugees. Asylum seekers are usually also granted the right to work, although not immediately and often with restrictions such as secondary access to the labour market after other migrants and nationals.
Many barriers exist, however, which prevent refugees and asylum seekers from taking full advantage of the right to work. These include problems linked to insufficient language skills, lack of knowledge of the labour market, lack of training and work experience, and problems related to the recognition of qualifications and experience.

It makes sound economic and social sense to allow asylum seekers to work and to provide refugees with access to the labour market. The cost to the State will clearly be less if asylum seekers and refugees are employed rather than dependent on State support. Employment also contributes to a more cohesive society by encouraging and improving contacts between refugees, asylum seekers and the local community.

The Parliamentary Assembly considers that, taking into account international obligations and the existing European legal framework, member States should do more to ensure that refugees – including people with subsidiary protection – and asylum seekers gain access to and are better integrated into the labour market. More specifically, the Assembly recommends that member States: 

Momentum for campaining coalitions: Business, NGOs, citizens and refugees could benefit if asylum seekers were able to start working sooner

Initiatives from European companies and trade confederations are being publicly released to promote the early access of asylum seekers and refugees to the labour market. It seems that the momentum has come for some politicians to understand that economic, demographic interests and enhancing the rights of asylum seekers and refugees can go hand in hand when comprehensive and humane policy are designed. 

We would like to reproduce this MUST READ article from The Economist (12th December 2015) Businesses could benefit, and refugees integrate faster, if newcomers to Europe were able to start working sooner. It shows that refugees, the State and companies could both benefit - and refugees can integrate faster if asylum seekers were authorized to work just after they have lodged their asylum claim. 

This excellent article also describes successful programmes and activities set up by various companies and NGOs in Europe to support asylum seekers and refugees in accessing the labor market. It identifies a series of problems, however, that hinder the smooth movement of refugees into European workplaces. 

The integration of asylum seekers and refugees in the labour market, a Belgian Case Study

Right to work for asylum seekers in Belgium

Since Novembre 2015 asylum seekers who have asked for asylum in Belgium since at least 4 months (without receiving a negative answer at first level and whose decision is still pending) have the right to ask for a work permit. They had to wait for 6 months before Novembre. The work permit is delivered by the regional authorities. 

This work permit allow them to seek work and work as an employee under a limited or unlimited contract or interim contracts in all Belgium's regions. This work permit also allow asylum seekers to register as a person seeking employment in regional public employment agencies and benefit from their services (access vocational trainings among others). 

When they are housed in public reception centres and are working, asylum seekers may be ask to contribute financially to their housing cost (if the working contract is stable and provides sufficient earnings -which is quite rare in practice). Refugees are dispensed from work permit when they are granted refugee status. 

Asylum seekers in Belgium also have the right to exercice volunteering activities and receive compensation for those activities (no work permit is needed to volunteer of course). 

The Long and Winding Road to Employment
An academic study (The Long and Winding Road to Employment. An analysis of the Labour Market Careers of Asylum Seekers and Refugees in Belgium) published in 2014 by the KUL (Katoliek Universiteit van Leuven) and ULB (Université Libre de Bruxelles) has shown that allowing asylum seekers to work during refugee status determination procedure increased and accelerated later integration in the job market (p.130): 

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.

UNHCR comments on the draft General Comment on the Right to just and favourable conditions of work (article 7 ICESCR)

The UNHCR has released its Comments on the draft General Comment on the Right to just and favourable conditions of work (art. 7 of the ICESCR). As part of its mandate, UNHCR has a direct interest in the right to work for – and in that regard to just and favourable conditions of work for – asylum-seekers, refugees and stateless persons. This paper is a landmark contribution to promote the right to work of asylum seekers and refugees. It is a most welcome text for refugees' advocates as it details the rights of refugees TO work and AT work emanating from the Geneva Convention on Refugee Status and ICESCR and clarify their content. UNHCR is the international authoritative source in charge of interpreting Geneva Convention and provide guidance that should be followed by State, institutions and non-State agents. Full text is available here.

It is also worth noting that UNHCR recalls that it has established a Memorandum of Understanding (1983) with the ILO and in 2012 explored how labour mobility can facilitate durable solutions without undermining protection principles (UNHCR and the ILO co-organized a workshop in Geneva in September 2012 on "Labour Mobility for Refugees", more information available at: http://www.unhcr.org/pages/509a85da6.html).

In providing these comments, UNHCR seeks to draw attention to two important points. Firstly, refugees and stateless persons constitute an important group of persons with specific vulnerabilities in exercising their work rights. Secondly, although refugees and stateless persons’ work rights are more specifically protected under the 1951 Convention relating to the Status of Refugees (1951 Convention) 1 and its 1967 Protocol relating to the Status of Refugees and the 1954 Convention relating to the Protection of Stateless Persons (1954 Convention), respectively, the ICESCR constitutes an important additional source of rights for both groups. 

The ability to engage in decent work is a fundamental human right, integral to human dignity and self respect. For refugees, asylum-seekers and stateless persons, it can be crucial to their survival and self sufficiency. Indeed, without work rights, they cannot legally access labour markets, open businesses, trade in their goods, or earn wages. Work rights assist them to provide for their families and to contribute to their hosting communities. 

When refugees stopped being migrants: Movement, labour and humanitarian protection

Katy Long in an article "When refugees stopped being migrants: Movement, labour and humanitarian protection" published in February 2013 recalls the need to open for refugees new legal avenues to host countries that secure economic livelihood :

States and refugee advocates often insist that ‘refugee’ and ‘migrant’ are separate distinct categories, despite ample evidence that these labels blur in practice. However, little attention is paid to the fact that in the past refugees were considered as migrants, with international attention focusing on securing their access to existing migration channels. 

The article traces this tangled history of refugee and migrant identities through the 1920s to the 1950s, when ‘refugee’ and ‘migrant’ categories were separated. The article argues that treating refugees as migrants in the 1920s and 1930s failed to ensure their protection from persecution because their admission was entirely dependent upon economic criteria. Separating refugees from migrants in the 1950s—by providing refugees with an exceptional right to cross borders and claim asylum—helped to address this protection gap. However, the article shows that in creating a special route for admission deliberately set apart from migration, the humanitarian discourse that protects refugees from harm actually prevents refugees from finding durable solutions, which depend upon securing an economic livelihood and not just receiving humanitarian assistance.

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:

Up against the Asylum Clock, Fixing the Broken Employment Authorization Asylum Clock

The Center for Immigrants' Rights and the American Immigration Council's Legal Action Center released (in February 2010) a report on the difficulties experienced by asylum seekers in obtaining Employment Authorization Document in the United States of America. 
The report: (1)  identify problems with the government’s management of the Employment Authorization Document (EAD) asylum clock;  (2) suggest a new policy for operation of the EAD asylum clock. The report incorporates information obtained by the Center and the LAC and analyzes information from attorneys, organizations, and individuals about their experiences with the “asylum clock.”

While asylum applicants are waiting for their cases to be adjudicated, they must also wait to be eligible for employment authorization. The EAD asylum clock potentially affects more than 50,000 asylum applicants every year. 

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.

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.