29 October 2021
Those who claim asylum in the UK are not normally allowed to work whilst their claim is being considered. They are instead provided with accommodation and support to meet their essential living needs if they would otherwise be destitute.
The Immigration Rules outline that the Home Office may grant permission to work to asylum seekers whose claim has been outstanding for more than 12 months through no fault of their own. Under this policy, those who are allowed to work are restricted to jobs on the Shortage Occupation List published by the Home Office. Any permission to work granted will come to an end if your claim is refused and any appeals rights are exhausted. The Home Office state that asylum seekers are encouraged to volunteer whilst their claim is being considered.
The Home Office must consider applications for permission to work if the delay is not, in the Secretary of State’s opinion, your fault. Caseworkers must take into account how much of the 12-month delay is down to you. This includes considering the reasons behind your contribution to any delay, such as repeated or long periods of non-compliance with the asylum process.
Shortage Occupation List (SOL)
If you are granted permission to work this will be restricted to jobs on the Shortage Occupation List (SOL), published by the Home Office. You can access the list using the following link: Shortage Occupation Link.
The Home Office will not routinely review your qualifications and experience when considering permission to work applications to determine whether you have the necessary skills to obtain employment in a shortage occupation, although they do reserve the right to do so if there is cause for concern. It is your and your potential employer’s responsibility to ensure the job is one that is included on the list of shortage occupations and that you are qualified for the position being offered before taking up the post. Where certain occupations on the SOL require that you must have a specified period of experience, this must not have been gained through working illegally.
There is no provision in the Immigration Rules to grant permission to work to dependants of an asylum seeker or failed seeker even where the claim or further submission has been outstanding for more than 12 months.
Application of discretion
Where the Immigration Rules are not met, the Home Office considers it will be justifiable to refuse an application for permission to work unless there are exceptional circumstances raised by you. Caseworkers, on rare occasions, grant permission to work using their discretion. Such discretion would allow a grant of permission to work, notwithstanding the requirements of the Immigration Rules, possibly outside of the shortage occupation list and before the 12-month period has passed of your asylum claim.
What amounts to exceptional circumstances will depend upon the particular facts of each case. A grant of permission to work on a discretionary basis is expected to be rare and only in exceptional circumstances. It is common for the Home Office to refuse a request simply stating that you can do voluntary work.
The caseworker will consider all the factual information and evidence submitted ensuring it is fully addressed particularly where a decision has been taken to consider the application on a discretionary basis. Therefore, you should provide as much information as possible. If you did decide to argue your case, you could include the following:
- Mental and physical health concerns, which may be positively impacted if you are allowed to carry out paid work.
- Career path – If you do have mental health concerns and you are skilled or have a qualification, not being able to work in your line of work may affect you adversely. If knowing that your professional career is on hold whilst your claim is pending, and this is having an adverse impact on your health you could put this to the Home Office.
- Victim of Trafficking — if you are a victim of human trafficking or modern-day slavery, you could argue that you should be granted permission to work.
- Best Interest of children — Considering an application for permission to work must take into account the need to safeguard and promote the welfare of children in the UK. This means caseworkers need to take account of the impact on children of a refusal to grant permission to work. However, in reality, the Home Office rarely accepts that it would be against the best interest of children if their parents are refused permission to work as long as they are being provided for in terms of accommodation and maintenance.
You are not able to argue that you do not have access to funds as the correct route for this would be to apply for asylum support.
Although, the decisions to refuse permission to work outside of the Immigration Rules normally say that the asylum seeker should undertake voluntary work if they have a desire to be more active, there are studies, which suggest that being paid to work is helpful to your well-being as it makes you feel connected to society and helps you feel integrated. Therefore, it is still advisable to argue your case, as it appears that there seems to be movement on this issue at the courts and if the law changes further, you may be able to benefit if you have already put your case forward.
In IJ (Kosovo)  EWHC 3487 (Admin), the High Court found that the Home Office policy at that time was unlawful because it failed to require the caseworkers to have consideration to the UK’s obligations towards victims of trafficking under the European Convention Against Trafficking. Furthermore, in C6  UKUT 94 (IAC), the Upper Tribunal declared that the permission to work policy at that time was unlawful because it did not refer to the residual discretion outside the Immigration Rules to allow people to work. This led the Home Office to change their policy to include the provision to exercise discretion, outside of the Immigration Rules, however, since the change in their policy, little change has been noticed in the decisions to grant permission to work. Furthermore, more recently In R (Cardona) v Secretary of State for the Home Department  EWHC 2656 (Admin), the High Court has declared that Home Office policy on this issue failed to comply with the statutory duty to promote every child’s best interests.
Should you wish to discuss making a request for permission to work whilst your asylum claim is pending, please feel free to contact us on tel: +441494646111 or email us at email@example.com.