June 21, 2021

Can asylum seekers work while waiting for a decision on their case?


Page contents
What do we mean by “asylum seekers”?
Basic rule: no right to work
Requesting permission to work after 12 months
What jobs can you do if granted permission?
Haven’t there been legal challenges about all this?
Policy not fit for purpose

A recent technical error cutting countless asylum seekers off from their already-meagre support payments of £39.63 a week has shed light on the difficulties those applying for asylum face in meeting their basic needs while their claims are being considered. The payment problems – estimated to affect around one third of all asylum seekers – have left those affected in a particularly dire situation because of the extensive restrictions that denying people the right to work while they have a pending asylum application.

What do we mean by “asylum seekers”?
For the purposes of this article, an asylum seeker is someone who has applied to the Home Office for protection on the basis that they have a well-founded fear of persecution or serious harm in their home country and as such should be recognised as a refugee by the UK government, but who is still waiting for a decision on their claim.
Essentially, we are talking about the period between attending an initial screening interview and receiving a decision from the Home Office. This is supposed to last no more than six months, as in the graphic below, but which often stretches into years (usually through no fault on the part of the applicant).

Basic rule: no right to work

As a starting point, asylum seekers do not have the right to work while their claims are being considered.
The only meaningful exception to this rule is where the person has an existing right to work. This would come about if, at the time they applied for asylum, they had another form of leave (i.e. a visa or permission to stay) which came with a right to work. Where someone with existing leave makes a valid application — including an asylum claim — before that existing leave expires, it is automatically extended by section 3C of the Immigration Act 1971 until their application is determined.
Example
Strahd is in the UK with leave as a student, valid until 31 October 2021. The conditions on his student visa give him the right to work for 20 hours a week in term time, with no restrictions on hours of work outside of term time.
Strahd makes an asylum application by attending a screening interview on 15 October 2021. His leave is automatically extended, including his right to work, until the Home Office makes a decision. In the event, it decides to grant Strahd asylum in July 2022. From that point on, he has the right to work because of his refugee status.
If instead of granting him asylum, the Home Office refuses the application, and he appeals within the specified period for lodging an appeal, his leave (including his right to work) will be extended again until his appeal is finally determined.

It is possible for the Home Office to amend the conditions on someone’s leave, including the right to work. Anecdotally, this does happen to asylum seekers who would otherwise retain an existing right to work.

Requesting permission to work after 12 months

That’s not quite the end of the story. There are provisions in the Immigration Rules (paragraphs 360-360E) that allow an asylum seeker to apply to the Home Office for permission to work if their asylum claim has been outstanding for over a year:
360 An asylum applicant may apply to the Secretary of State for permission to take up employment if a decision at first instance has not been taken on the applicant’s asylum application within one year of the date on which it was recorded. The Secretary of State shall only consider such an application if, in the Secretary of State’s opinion, any delay in reaching a decision at first instance cannot be attributed to the applicant.
So a request for permission to work can only be made once a claim has been outstanding for over a year — which is twice as long as it’s supposed to take to decide an asylum claim — and won’t be granted unless the Home Office believes the delay is not the applicant’s fault. In practice, that means the applicant must have provided their supporting evidence as soon as possible and attended all scheduled interviews.
The procedure for applying for permission to work is outlined in Home Office guidance. It involves writing to one of the two teams listed in the policy document. If permission is granted, the Home Office will then reissue the asylum seeker’s Application Registration Card (ARC) and endorse it with the right to work, subject to conditions.
Paragraph 360C confirms that this also applies to further submissions under paragraph 353 of the Rules.
There is no provision for a dependant of an asylum seeker to apply for permission to work, unless they are claiming asylum in their own right.

We don’t know how many people are granted permission to work in accordance with the Immigration Rules because the Home Office doesn’t publish any data. In our experience, such applications are usually granted (eventually). But someone who does get permission to work in principle runs into a further problem: limitations on the type of job they are allowed to do.
What jobs can you do if granted permission?
Let’s say your claim has been outstanding for more than a year and the Home Office agrees that the delay was not your fault. You are given permission to work. You breathe a sigh of relief because, finally, you will be able to work to support yourself instead of living on less than £6 a day.
Then you discover that there’s a catch.

As paragraph 360A makes clear, you can only do a particular type of work:

employment may only be taken up in a post which is, at the time an offer of employment is accepted, included on the list of shortage occupations…
no work in a self-employed capacity; and
no engagement in setting up a business

The Shortage Occupation List mentioned in (i) consists of jobs such as doctors, scientists, engineers, paramedics, architects and nurses, as well as some more niche occupations such as dancers and high integrity pipe welders. Most people, whether asylum seekers or members of the general population, lack the skills, training and qualifications that would get them hired in most of these fields.
Of course, many asylum seekers did work as doctors and nurses, and in other similar “high-skilled” professions, in their home countries. The problem is that there is no automatic recognition of their qualifications. This means that even applicants who are able to do these jobs are unable to get themselves taken on without undertaking further tests or qualifications in the UK, which is usually unaffordable for someone who depends on asylum support payments.
The result is that even when an asylum seeker is given permission to work, the limitations on that employment means that the vast majority of people in this position are still shut out of the workforce, forced to rely on meagre asylum support payments that are often not enough to meet their basic needs.
Haven’t there been legal challenges about all this?
The policy denying asylum seekers the right to work except in these very restrictive circumstances has been successfully challenged in both the High Court and, more recently, in the Upper Tribunal. Both decisions held the policy in its current iteration to be unlawful because of its lack of flexibility which admits no possibility of exceptions.
Despite these challenges, the right to work policy has not been amended in any meaningful way to date. There is a section on allowing someone to work despite them not meeting the Immigration Rules mentioned above, but only in “exceptional circumstances”. Cases in which this test is met are “expected to be rare”.

In addition to the legal challenges, there is a coalition of hundreds of organisations, from Ben & Jerry’s to the Salvation Army, campaigning to lift the ban on asylum seekers working.
Policy not fit for purpose
The official thinking behind this extremely restrictive policy is that enabling asylum seekers to access the job market before being granted asylum would serve as a “pull factor” for migration into the UK. To the best of our knowledge, there is no evidence to support this assertion, but the lack of an empirical basis for a particular policy has rarely got in the way of the Home Office enacting punitive immigration policies.
Giving asylum seekers an effective, rather than symbolic, right to work would allow them to support themselves financially, boost the economy and improve the public finances (by almost £100 million per year, according to one estimate) thanks to higher tax receipts and lower support payments. It would also allow asylum seekers to meet their basic needs, lift themselves out of destitution and be afforded a basic level of dignity and autonomy. This is a policy change that should appeal to both sides of the political spectrum.

June 18, 2021

RIGHT TO WORK CHECKS ON EU CITIZENS FROM 1 JULY 2021

There are two updates on EU citizens for you to be aware of on right to work checks and on absences due to Covid:

Employers need to be aware of different right to work check rules for EU (and EEA and Swiss) citizens from 1 July 2021.

The current position

Essentially, for right to work checks between 1 January 2021 and 30 June 2021 employers are able to rely on checking an EU citizen’s passport or national identity card. Employers can also check online an EU citizen’s EU Settlement Scheme or other digital immigration status but cannot insist on it. Until 1 July 2021 employers are not required to differentiate between those EU citizens who arrived before or from 1 January 2021. Any EU citizen arriving for the first time from 1 January 2021 will need to apply for permission to work under the new immigration system. From 1 July 2021, employers are not required to carry out retrospective right to work checks. Changes from 1 July 2021 We have been waiting for the new guidance on right to work checks from 1 July 2021, which was released last week in the form of a new code of practice. The main employer guidance has not yet been updated but presumably will be on or before 1 July 2021. The key changes for right to work checks on EU citizens from 1 July 2021 include:

Pre-employment and follow-up checks. The new code of practice should be applied to all right to work checks on or after 1 July 2021. This includes pre-employment checks and follow-up checks.
Documents to be checked. Where employers are checking the right to work of EU citizens from 1 July 2021, in the vast majority of cases they will be checking online the employee’s digital immigration status under the EU Settlement Scheme or new immigration system. However, the following changes have also been made to the list of compliant documents which can sometimes be used for right to work checks on EU citizens:​
List A (where there is no expiry date on the employee’s permission). As expected given the changes, EU passports no longer feature on this list. The exception is where the employee has an Irish passport – as Irish nationals do not require prior permission to work in the UK.
List B Group 1 (where there is an expiry date on the employee’s permission). A frontier worker permit is acceptable. For more information on frontier worker permits see our previous blog.
List B Group 2 (where there is an expiry date on the employee’s permission and the statutory excuse only lasts for 6 months). Where an employee has an application pending with the Home Office and a right to work check is required, sometimes the employer checking service must be used. There is an update to List B Group 2 – where an employee has a pending EU Settlement Scheme application submitted on or before 30 June 2021, the employer can rely on their certificate of application together with a Positive Verification Notice from the employer checking service.
For more information on pre-employment and follow-up online, physical document (manual) and employer checking service right to work checks, please see our FAQs on right to work checks: what employers need to know.

2. EU CITIZENS WITH PRE-SETTLED STATUS WHO ARE ABSENT FROM THE UK DUE TO COVID

EU citizens who apply to the EU Settlement Scheme for pre-settled status need to apply for settled status after 5 years in the UK. Pre-settled status is non-extendable and so it is important that the residence requirements are met in order to qualify for settled status. Otherwise it will be necessary to switch into a different UK immigration category, such as Skilled Worker.

Those with pre-settled status should not be absent for more than 6 months in any 12 month period. A single period of absence of up to 12 months is permitted for an “important” reason which the rules specify includes pregnancy/childbirth, serious illness, study, vocational training or an overseas posting.

Until recently, where an absence was over 6 months due to Covid it was only deemed an important reason if the EU citizen was ill and self-isolating or they were sharing a house with someone ill with coronavirus. The guidance was amended last week to be much more flexible on Covid related absences.

In welcome news for EU citizens, among other changes the new guidance includes that you can have been absent from the UK for example because “there were fewer coronavirus restrictions elsewhere; you preferred to work or run a business from home overseas; or you would have been unemployed in the UK and preferred to rely on support from family or friends overseas.”

It also goes on to say “this means you can rely on any coronavirus related reason (including where you chose to leave or remain outside the UK because of the pandemic) as being an ‘important reason’ permitting an absence of up to 12 months. In these circumstances, you will not have broken your continuous qualifying period of residence.”

June 15, 2021

EU Settlement Scheme coronavirus policy relaxed


On 10 June 2021 the Home Office reissued its guidance on coronavirus and the EU Settlement Scheme. Originally published in December 2020, it was withdrawn last month following a legal challenge. The new version is considerably more generous than the old.

In a nutshell, the guidance now allows for people with EU pre-settled status to be out of the UK for up to 12 months for “any coronavirus related reason” without breaking their continuous residence. This includes where they remain abroad by choice. Previously, the guidance only really catered for situations where the person was forced to remain outside the UK due to travel restrictions, quarantine or COVID-19 related health complications.

That stricter rule does make an appearance in the new guidance as well, but only where the absence is longer than 12 months. People in this position will need evidence that they were “prevented from, or advised against, returning to the UK” by coronavirus. Whereas if the absence is less than 12 months, no evidence is needed beyond a letter simply saying “I chose to move back to Spain [or wherever] for a while because there were fewer lockdown restrictions there [or whatever the motivation might be]”.

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