We are sometimes asked to advise on whether it is possible for someone who has submitted an application for international protection and/or asylum to work whilst their claim is being considered.
This can be a relevant consideration because the process of seeking and obtaining refugee status or humanitarian protection is not a quick one, and indeed applications for recognition can take years.
The basic position is that individuals who have claimed asylum in the UK are not normally permitted to undertake any form of employment whilst their claim is being considered by the Home Office.
The Home Office’s position is borne out of a policy to ensure a distinction between genuine asylum seekers and economic migrants, preventing illegal migration for economic purposes and to uphold the integrity of the UK asylum system to ensure protection is provided to those who genuinely need it.
However, the Home Office operates a policy of considering applications for permission to work from such individuals where their claim has been outstanding for more than 12 months from the date it was lodged. Additionally, a provision was introduced in 2010 to allow claimants who had received an initial refusal decision but who had made further submissions to apply for the same permission, where consideration of those further submissions had also been outstanding for more than 12 months.
Note that the 12 month rule applies only to a decision made by the Home Office. Where a (negative) Home Office decision has been made within 12 months but that refusal is then appealed, no permission to work will be granted for the duration of any appeal proceedings.
The Home Office stresses that in order to consider any application for permission to work, the delay in reaching an initial decision on the claim cannot be the result of any actions or inactions on the part of the claimant themselves – i.e. the delay in determining the claim is “no fault of their own”. The Home Office guidance states that caseworkers must consider if the claimant contributed to the delay in any way and where the delay was the claimant’s fault, permission to work must be refused. In doing so, the caseworkers are required to take into account any reasons or explanations provided by the claimant. The Home Office are also under a duty to consider the impact of any refusal to grant permission to work on any children who may be affected by such a decision.
Any permission to work will come to an end if the asylum claim is refused and any appeal rights are exhausted. Where the claim is approved, this will be accompanied by a grant of limited leave to remain in the UK which carries unrestricted access to the UK labour market.
The key aspect to be aware of is that if the Home Office does grant permission to work, it will not allow the claimant to work in any job they choose. Permission to work will be restricted to the jobs listed on the latest version of the Home Office’s Shortage Occupation List. Of equal importance is the fact that the Immigration Rules prohibit the right to work from extending to any of the principal applicant’s dependants. So where a husband and wife have applied for asylum with the husband being the principal applicant and his spouse being a dependant on his claim, any permission to work would be granted only to the husband.
The Home Office stresses that it is nevertheless incumbent upon the individual employer to check whether any foreign national who is not settled in the UK is allowed to work, and to verify whether there are any restrictions on the type of work that they may lawfully undertake. The Home Office also stresses that asylum claimants are encouraged to volunteer whilst their claim is being decided (defined as “spending time, unpaid, doing something that aims to benefit the environment or someone (individuals or groups) other than, or in addition to, close relatives”).
Gherson have extensive experience of all aspects of international protection and asylum claims. The information above represents a non-exhaustive summary of the position only. If you have any queries with respect to your own circumstances, please do not hesitate to contact us.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
©Gherson 2019