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.

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.

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!

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: 

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. 

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. 

Forced Migration Current Awareness Blogs' update focused on right to work of refugees

The last Forced Migration Current Awareness Blogs' update is focusing on the right to work of refugees and related economic aspects. We reproduce hereafter the thematic update articles that are of particular relevance for our blog. We also highly recommend following the Forced Migration Current Awareness Blog. We will dedicate further posts to detail the content of the following article.

Thematic Focus: Work/Economic Aspects

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.

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.

Asylum seekers and the right to work in the United Kingdom

We reproduce the following article (04/11/2011) by Melanie Gower, from the UK parliament website detailing the conditions to beneficiate for the right to work in the UK, its current limitations, and the impact of the Reception Condition Directive on UK domestic law.

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)