Permission to Work for Asylum Seekers

29 Octo­ber 2021
Naila Khan

Rubber,Stamp,Marked,With,Permission

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.

Delay

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.

Depen­dants

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.

Recent Caselaw

In IJ (Kosovo) [2020] 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 [2021] 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 [2021] 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 info@buckslegal.co.uk.

Posted in Immigration Updates
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