Supreme Court decision on Permission to Work for Asylum Seekers
Friday, 30 July 2010 08:54
The UK Supreme Court has upheld the right of rejected asylum seekers with fresh claims to have permission to work. The right only applies if an application for asylum - including a fresh claim - is not finally decided by the UK Border Agency within one year of being made.
The decision of the Supreme Court is in R (on the application of ZO (Somalia) and others) (Respondents) v Secretary of State for the Home Department (Appellant) [2010] UKSC 36. It states that the Home Office was failing to follow the European directive on reception conditions for asylum seekers.
The UKBA has no further right of appeal within the UK and the Supreme Court rejected the request of the Home Office for the case to be referred to the European Court of Justice. It is therefore to be hoped that the UKBA will implement the decision and begin to grant permission to work.
The UKBA website states that:
"The UK Border Agency is aware that there are significant numbers of failed asylum seekers who may consider themselves entitled to apply for permission to work in light of the judgment. In order to ensure good administration of those applications, fair processes and the effective implementation of the judgment, we will not process any permission to work applications from failed asylum seekers whose further submissions have been outstanding for more than 12 months until that announcement."
According to Mike kaye, Advocacy Manager of Still Human Still Here:
"The Home Office has announced that it is investigating the possibility of limiting the jobs which asylum seekers can apply for to those skilled jobs in shortage occupations (e.g. math teachers, chemical engineers, pipe welders or orchestral musicians).
"Limiting job opportunities for asylum-seekers is permitted, at least to some extent, by the Directive at Article 11 (4) which permits priority in the job market to be given to others. Article 11(2) also permits conditions to be introduced for granting access to the job market. Whether either of these provisions would permit the limitation suggested by the Home Office may be something that would be subject to legal challenge."
You can read a summary of ZO (Somalia) here or the full decision here.
If you have a fresh claim for asylum which was:
1. lodged with the Home Office more than a year ago (whether or not the UKBA has accepted that it is a fresh claim); and
2. you have not had a final decision on it - that is the UKBA has not refused it or, if they have refused it, an appeal is still ongoing;
you can write to the UKBA asking for permission to work.
However, in the light of the above announcement, there may be delays in processing any applications made now. The delay in implementation, or a refusal to process a request made under current procedure, raises the question of whether the Home Office could be sued if someone lost the opportunity of a job, or that they could be referred to the Ombudsman for maladministration.
The law affecting first-time applications for asylum is unchanged - and first time applicants continue to be allowed to apply for permission to work in similar circumstances after one year.
Most cases affected are fresh applications made before November 2009. This was when the UKBA introduced new procedures for making fresh applications in person, and they are deciding these fresh claims within a short period of time. It is unlikely that a fresh claim made currently would be left outstanding for over a year.
