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.

European Migration Network Study on Approaches to unaccompanied minors following status determination examines Right to work

The author of this blog (also a legal guardian of unaccompanied minors) advocates for any measure that can facilitate access of unaccompanied minors to the labour market, without prior work permit and irrespective of legal status. All unaccompanied minors should have access to "student job/ student contract" after school or during holidays providing they are identified as unaccompanied minors and go to school and vocational education or have full access to the legal market beyond school age, while being protected with specific work contract for minors. We also strongly believe that alternative educational vocational programmes where UAM can spend the most of their time learning vocational skills should be promoted. Those programmes are highly efficient and relevant for some unaccompanied minors who would remained out of school or demotivated otherwise.  We believe that UAM who attend educational trainings in sectors exposed to labor shortage should be also taken into consideration for residence permit whenever possible. 

The European Migration Network (EMN) recently released a study which explores the situation of unaccompanied minors (UAMs) who have been granted a residence permit in the EU plus Norway (EMN Study on Approaches to Unaccompanied Minors Following StatusDetermination in the EU plus Norway).The findings of this study are the following:

Support to employment to unaccompanied minors in the EU+

Legal employment hardly accessible to refugees in Turkey

While refugees are allowed to seek employment under Turkish law, legal jobs are largely inaccessible for the vast majority of refugees in Turkey. In its study, “I Am Only Looking for My Rights”: Legal Employment Still Inaccessible to Refugees in Turkey, Refugees International examines the challenges and consequences facing refugees as they seek employment in Turkey. The study is based on a October 2017 research mission.

The report finds that without legal employment, refugees become trapped in a cycle of informal work where the risk of exploitation and abuse is high and wages are low. 

Refugees in Turkey face enormous hurdles to finding legal employment and commonly work excessively long hours often in difficult working conditions and are paid a faction of their Turkish counterparts. In addition, the lack of decent wages for adult refugees pushes many refugee children into the job market as well, instead of attending school.

One of the difficulties refugees face is a climate of hostility and negative myths about the impact of refugees on Turkish society. 

The report offers the following policy recommendations (a.o):

Enhancing the integration of asylum seekers and refugees at EU level

In June 2016, the European Commission adopted the Action Plan for the Integration of Third Country Nationals which sets out 50 actions to support Member States and other actors in their effort to foster migrant integration, among which asylum seekers and refugees. To implement this Action Plan a Mutual Learning Programme (MLP) thematic event on measures to support the integration of asylum seekers and refugees was held in Brussels on 22 June 2016. The results of this conference were shared at the annual MLP dissemination conference on the value of mutual learning for policy making in Brussels on 9 December 2016.

Young people from migrant and refugee backgrounds lack the social capital to access labour market

A recent paper from the Australian Center for Cultural Youth argues that a crucial link (social capital) is missing to allow for the access of young people from migrant and refugee backgrounds to the labour market.

This paper aims to develop a deeper understanding of the way in which young people from migrant and refugee backgrounds experience social capital in relation to work transitions in Australia, particularly for those who are tertiary educated. This is with the intention of exploring how best to support the breadth and quality of young people’s networks to facilitate the transition to meaningful work. Access to bridging capital for the purposes of employment is an issue of equity – an essential link that is often missing for young people with a refugee or migrant experience.

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.

Workeer and Action Emploi Réfugiés, online jobfairs for refugees

Job search websites for refugees

Our attention was recently caught by a French and a German Job search website offering jobs to refugees and acting as "jobfair websites". The Websites are the following :
Action EmploiRéfugiés: http://www.actionemploirefugies.com/

Workeer: http://www.workeer.de/  
AERé (Action Emploi Réfugié) is a virtual meeting place for employers who are looking to hire and for refugees who are trying to find jobs. The organisation was set up in September 2015 with the aim to improving refugees' access to the French labour market from the early stages of their arrival. 

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: 

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!

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. 

Refugees will have the right to work, why not employ them?

We would like to reproduce the recent article from the Guardian (Refugees will have the right to work, why not employ them?)  that focus on recent positions of compagnies in the UK or Germany to promote the employment of asylum seekers and refugees. 

Europe may be deeply divided over how to host hundreds of thousands of refugees coming to the continent this year, but some companies are now considering the struggles new arrivals will face finding work. Business leaders in Germany have responded to the refugee crisis by calling for the thousands of people arriving each day to be given help to find employment.

“If we can integrate them quickly into the jobs market, we’ll be helping the refugees, but also helping ourselves as well,” the head of the BDI industry federation, Ulrich Grillo, told the AFP news agency earlier this week. Other business bodies in Germany have backed calls for an easing of restrictions so that skilled refugees can help the country fill gaps in its workforce.

Some socially responsible businesses in the UK are now wondering how they might help newcomers find jobs.

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): 

Asylum seekers may be granted right to work in Ireland after 9 months

Asylum seekers in Ireland could be granted the right to work after 9 months according to recommandations of a working group on ways to improving the asylum system in Ireland. The recommendations of the working group report could have a far-reaching impact on the lives of more than 4,000 people in the direct provision system and a further 4,000 asylum seekers living in the wider community. At present, Ireland is one of just two EU member states with a blanket working ban on all asylum seekers.The report is expected to propose that new asylum seekers should have the right to work after nine months of seeking refugee status.

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.

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. 

Allow Refugees to Work Says UN, as Turkey Prepares to Host 2.5m refugees

UN top officials declares that allowing refugees to access the legal labour market is a good practice to be duplicated in a Newsweek article dating 28/04/2015 :

Allowing refugees to enter the workforce helps to relieve the humanitarian burden in host countries and is "best practice" according to a top UN official, who is warning that Turkey needs help from the international community to deal with "an unprecedented" number of refugees. Many refugees will enter the labour market, both legally and illegally warns Clark, but if they enter it illegally they are in danger of being exploited. "In the case of access to the labour market, this is most definitely a best practice," she adds.

Helen Clark, the administrator of the UN Development Program (UNDP) says countries bearing the brunt of the refugee crisis caused by the ongoing conflicts in Syria, Iraq and Libya, need more support. She points out that legislation proposed by the Turkish government, which will allow refugees to enter certain sectors of the labour market if passed, is a positive move, and one that other countries should consider also adopting.

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.

EuroCities Statement on asylum in cities

In its Statement on asylum in cities released today Eurocities urges, among other interesting recommendations, that the right to work should be granted to asylum seekers after the lodging of their asylum claim so as to ensure their successful social and economic integration and participation in their local settings. 

We reproduce hereafter extracts of Eurocities' Statement: 

Sufficient financial support should be available to cities to help them offer asylum seekers quick and effective access to language training. Asylum seekers must have the right to be gainfully employed and be entitled to equal treatment, pending a definitive decision on their asylum claim. Recognition of their qualifications and of their entrepreneurial potential should also be facilitated. This would enhance their long term ability to contribute to local economies and society, before and after refugee status is granted, furthering their chances of better and faster integration in our society. 

Rethinking Global Protection: New Channels, New Tools, MPI report

A new report from the Migration Policy Institute’s Transatlantic Council on Migration, Rethinking Global Protection: New Channels, New Tools, sketches the sources of strain on the international protection regime and outlines two new avenues that have the potential to reinvigorate it: development- and international mobility-focused approaches. 

Embedding development in humanitarian responses focuses on empowering refugees, in cooperation with host communities, to provide for their own livelihoods by granting them the right to work and opening access to land, equipment, training, and capital. The second approach would open channels of international mobility, including labor migration schemes and international study and training programs, to refugees and other forced migrants. 

“Incorporating development and mobility approaches to protection into international cooperative efforts could prove to be an effective way to create a more sustainable and dynamic response to forcible displacement,” writes Kathleen Newland, who leads MPI’s humanitarian protection work.