Asylum seekers’ right to work explained in newly updated House of Commons Library briefing

The latest immigration-related publication from the House of Commons Library was released today and looks at the right to work for asylum seekers in the UK.

You can download the 19-page report here or read a full copy online below.

It explains the current policy that prevents asylum seekers from working unless they have been waiting 12 months or more for a decision on their asylum claim. Asylum seekers can then apply to work in occupations that are on what is now the immigration salary list and was formerly the shortage occupation list.

As the House of Commons Library points out, Labour's shadow immigration minister said in 2022 that the Labour party had a clear position that the time period before asylum seekers can work should be reduced to six months. There was, however, no mention of amending the current 12-month policy in Labour's election manifesto.

The Telegraph reported ahead of the election that Labour had ditched its plans to allow asylum seekers to work after six months. A Labour source told The Telegraph: "We were getting feedback from different parts of the asylum system that the market for illegal working in Britain is a huge pull factor. The idea that you would make it a more positive place early when such high numbers of people are risking their lives crossing the Channel was not the right thing to do."

The Lift the Ban Coalition continues to campaign for asylum seekers to be given the right to work. Speaking on behalf of the Coalition, Lou Calvey of Asylum Matters said the right to work is vital for people seeking asylum and would boost the economy.

The House of Commons Library briefing considers the arguments for and against granting asylum seekers the right to work.

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House of Commons
Library

Asylum seekers: the permission to work policy

By Melanie Gower, CJ McKinney, Greg Oxley

26 July 2024

Summary
1 What rights to work do asylum seekers have?
2 History of the policy
3 Arguments for and against restricting rights to work
4 Recent parliamentary interest
5 What do other countries do?

commonslibrary.parliament.uk

Number 1908

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Contents

Summary
1 What rights to work do asylum seekers have?
1.1 Permission can be granted for certain jobs after 12 months
1.2 The number of asylum seekers working is unknown
1.3 Officials have some discretion in granting permission to work
2 History of the policy
2.1 How the policy has evolved over time
2.2 The 12-month waiting period
2.3 The shortage occupation list restriction
2.4 Change to immigration salary list
2.5 Preventing refused asylum seekers from working
2.6 Review of the policy, 2018-2021
3 Arguments for and against restricting rights to work
3.1 Why restrict rights to work?
3.2 Why allow people to work?
3.3 Should some people be allowed to work but not others?
4 Recent parliamentary interest
5 What do other countries do?

Summary

As a general rule, asylum seekers are not allowed to work in the UK. Some people think work should be allowed, at least after a period of (for example) six months waiting for a decision on an asylum claim.

Permission to work can be granted in limited circumstances

People who have claimed asylum in the UK can apply for permission to work if they have been waiting 12 months for a decision, and they are not considered responsible for the delay.

If permission is granted, the person will be allowed to take up jobs on the immigration salary list only. There are 23 jobs on the list, many of them quite specialised, although social care and some skilled trades are included.

The Home Office does not publish data on the number of asylum seekers granted permission to work.

The policy has evolved over the past 20 years

Until mid-2002, asylum seekers could apply for permission to work if they had been waiting six months for an initial decision on their asylum claim. The Labour government removed that concession, saying it was necessary to distinguish asylum from economic migration.

A right to apply for permission to work after 12 months was introduced in 2005 to comply with EU law. The Coalition government restricted work rights to the shortage occupation list (now the immigration salary list) in 2010.

A review of the policy under the Conservative government concluded in 2021 that there should be no change.

Stephen Kinnock, the then Shadow Immigration Minister, said in 2022 that Labour agreed that asylum seekers should have the right to work in shortage occupations after six months. This policy was not included in the Labour Party's 2024 general election manifesto.

The government says restrictions are necessary to prevent a "pull factor"

Successive governments have maintained that easing work restrictions could draw asylum seekers to the UK because they believe that the reception conditions are more favourable. They point to a potential increase in applications from 'economic migrants' whose primary motivation for coming to the UK is to work rather than seek safety.

The stated purpose of the policy is to create a "clear distinction between economic migration and asylum".

Campaigners argue work rights would help refugee integration and public finances

Various charities, think tanks, business groups and parliamentarians have argued for a more liberal work policy. Arguments commonly advanced for allowing asylum seekers to work include lower poverty rates, improved integration, better mental health and higher tax revenues.

Parliament has shown consistent interest in the issue, with recent discussion being driven by labour shortages and the cost of living. Several private members' bills have been proposed in recent years, seeking to grant asylum seekers permission to work after they have been waiting for six months for a decision on their claim.

Other countries have more relaxed rules on asylum seekers working

UK policy is more restrictive than many comparable countries due to the 12- month waiting period for eligibility to work and the immigration salary list restriction.

EU law requires member states to allow asylum seekers to work after they have been waiting for nine months for a decision on their claim. A recent change will reduce this to six months by June 2026. EU countries can have more liberal rules if they want: Ireland already allowed asylum seekers to work after six months, for example.

Canada allows asylum seekers to work immediately, whilst in the USA they are eligible to work after six months.

1 What rights to work do asylum seekers have?

1.1 Permission can be granted for certain jobs after 12 months

Asylum seekers can only apply for permission to work if they have been waiting for over 12 months for an asylum decision. If granted, they can only work in certain listed jobs

As a general rule, asylum seekers are not allowed to work in the UK. They can only apply for permission to work if:

• they have waited for over 12 months for an initial decision on their asylum claim; or they have been refused asylum but have submitted further submissions for asylum over 12 months ago; and

• they are not considered responsible for the delay in decision-making. [1]

Work can be permitted despite these rules in "exceptional circumstances". [2] In addition, people who already had an immigration status allowing work can continue to do so while waiting for an asylum decision, if they claim asylum before their previous status expires. [3]

UK Visas and Immigration, which is part of the Home Office, considers applications for permission to work.

If granted, permission to work only allows asylum seekers to take up jobs on the UK's immigration salary list. It does not allow them to set up a business or work in a self-employed capacity. Nor does permission extend to any family members attached as dependants to the person's asylum claim.

Permission to work expires once the asylum claim has been finally determined (when there is no more opportunity to appeal). People who are granted permission to stay in the UK as refugees are allowed to work in any occupation, employed or self-employed. People whose asylum claims are refused are not allowed to work and are expected to leave the UK.

Home Office policy does allow asylum seekers to volunteer, so long as this does not amount to unpaid work. [4]

Practical information

Home Office guidance provides more detailed information about how this policy is applied:

• Working in the UK while an asylum claim is considered, 21 February 2014

• Permission to work and volunteering for asylum seekers, 4 April 2024

The latter includes the email and postal addresses for permission to work applications (page 8).

1.2 The number of asylum seekers working is unknown

The Home Office does not provide Parliament with data on the number of asylum seekers granted permission to work. [5] It has released such information in response to freedom of information requests: 15,700 people were granted permission to work in 2022. [6] How many of those actually secured employment is not known.

The department does publish data on the number of asylum applications awaiting an initial decision by duration. The latest figures show that at the end of March 2024, there were 88,400 cases awaiting an initial decision, of which 21,100 had been waiting 12 months or longer. [7] The number of asylum applications waiting over 12 months had fallen from the peak of 69,500 a year earlier.

Until October 2018 there was a 'service standard' to decide 98% of straight- forward asylum applications within six months. But the number of cases deemed to be non-straightforward increased, so that target was abandoned to focus on clearing the backlog of older cases, the most vulnerable and those in receipt of the greatest level of support. [8] In May 2024, the then Minister for Legal Migration said that a project would be undertaken to review whether a service standard for asylum claims could be introduced. [9]

1.3 Officials have some discretion in granting permission to work

Several judicial review cases have found aspects of the Home Office's policy guidance on permission to work for asylum seekers to be unlawful.

One challenge was brought by a recognised victim of human trafficking who had been waiting for over a year for a decision on an asylum claim. [10] Another was brought by an asylum seeker with a complex immigration history whose asylum claim had been ongoing for several years. [11]

The judgments in both cases found that the Home Office's policy guidance was unlawful to the extent that it failed to recognise the possibility of making exceptions to the general policy of restricting permission to work to shortage occupation list jobs (now immigration salary list jobs). This possibility arises, despite the terms of the immigration rules, because of the Home Secretary's wide-ranging discretion under the Immigration Act 1971. [12]

A third case involved an asylum seeker with a young daughter who had been waiting for an initial decision for almost three years. [13] He wished to take up employment in a supermarket, which was not a shortage occupation. The High Court found that the policy guidance in force at the time failed to comply with the statutory duty to have regard to the need to safeguard and promote the welfare of children. [14]

Home Office guidance now recognises that officials can waive the requirements of the immigration rules and grant permission to work on a discretionary basis. It advises that the use of such discretion "is expected to be rare and only in exceptional circumstances". Factors relevant to the exercise of this discretion include the best interests of children, and support for confirmed and potential victims of trafficking. [15]

What jobs are on the immigration salary list?

The list of jobs that asylum seekers are allowed to take up if granted permission to work is in Appendix Immigration Salary List to the immigration rules. Listed occupations include bricklayers, carpenters, care workers, graphic designers, pharmaceutical and laboratory technicians and skilled orchestral musicians.

2 History of the policy

2.1 How the policy has evolved over time

The policy has become more restrictive over the past 20 years

There have been various iterations of the policy over the past 20 years:

• Until mid-2002, asylum seekers could apply for permission to work if they had been waiting for six months or more for an initial decision on their asylum claim. The then Labour government ended this policy concession on 25 July 2002. It argued that it was increasingly irrelevant due to faster decision-making in the asylum determination process, and that it was necessary to distinguish asylum from economic immigration categories. [16]

• Between late July 2002 and February 2005, Home Office caseworkers had discretion to grant permission to work in 'exceptional cases', although there wasn't published policy on what those might be.

• In February 2005, a new immigration rule was introduced allowing asylum seekers to apply for permission to work in the UK if they had been waiting for over 12 months for an initial decision on their case. The rule was introduced to comply with a European Union directive. [17]

• The Home Office originally considered that refused asylum seekers who submitted further representations were not covered by the directive. A Supreme Court determination in July 2010 disagreed. [18] Coalition government subsequently changed the immigration rules to reflect the Supreme Court's judgment, with effect from September 2010. [19] It also restricted asylum seekers to jobs on the shortage occupation list.

• In March 2024, the Sunak government replaced the shortage occupation list with a shorter immigration salary list. [20] This had the knock-on effect of reducing the number of jobs in which asylum seekers can work if granted permission.

2.2 The 12-month waiting period

The 12-month waiting period for eligibility for permission to work was introduced in 2005 to bring UK policy into line with the provisions of a 2003 European Union directive on reception conditions for asylum seekers. [21] The directive did not prevent signatory states from giving asylum seekers access to their labour market sooner.

The Coalition government opted out of a revised reception conditions directive which allowed asylum seekers to seek permission to work after nine months waiting for a decision. It decided that the directive did not strike the right balance between the rights of asylum seekers and the needs of the UK and could encourage fraudulent claims. [22]

In December 2022, Shadow Immigration Minister Stephen Kinnock said Labour's policy was that the waiting period should be reduced to six months. [23]

2.3 The shortage occupation list restriction

The Coalition government said that the restriction to shortage roles was necessary to ensure consistency with wider policies on limiting foreign workers to jobs that could not be filled by the domestic workforce. It also argued that a more generous policy would incentivise asylum claims from economic migrants. [24]

The Home Office contended that it was reasonable to expect that some asylum seekers would be qualified to work in shortage jobs, based research highlighting that "nearly half of newly recognised refugees held qualifications before coming to the UK". [25]

The High Court upheld the policy as lawful in 2013. [26] As discussed in section 1.3 above, later judgments have found that the associated guidance failed to identify the discretion available to depart from the shortage occupation restriction. The guidance has since been changed.

The Coalition government consistently rejected calls to review or reconsider the restrictions during the 2010-15 Parliament, maintaining that asylum seekers should not have enhanced access to jobs in the UK. [27]

2.4 Change to immigration salary list

In 2023, the Migration Advisory Committee – which advises the government on the shortage occupation list – proposed significant revisions. The changes were unrelated to the list's use in the context of asylum seekers working but the committee realised they would have a knock-on effect.

The committee's report noted that list was never designed to establish which jobs were appropriate to let asylum seekers take up. It recommended that there no longer be a link to the reformed shortage list: asylum seekers granted permission to work should simply be allowed to take up any job. [28]

The Sunak government duly replaced the shortage occupation list but did not follow the committee's recommendation to allow asylum seekers to work in other jobs. The replacement immigration salary list is shorter than the shortage occupation list and narrows the range of jobs that asylum seekers can do. The new list contains 23 jobs, some of which are highly specialised (such as chemical engineers in the nuclear industry in Scotland only).

The then Minister for Legal Migration said that it was important to maintain the principles underpinning the permission to work policy. Allowing asylum seekers to work could incentivise illegal journeys, including by small boat, and undermine the work visa system". [29]

2.5 Preventing refused asylum seekers from working

Similarly, successive governments have been resistant to calls to allow refused asylum seekers to work if they are temporarily unable to leave the UK through circumstances beyond their control. They have suggested that to do so could undermine the removal process.

A Home Office minister, Lord Taylor of Holbeach, explained in July 2014 that the policy "must maintain the distinction between those who need our protection and those seeking to work here". Allowing refused asylum seekers to work would create an incentive to frustrate removal, he argued. [30]

In July 2024, incoming Labour Home Secretary Yvette Cooper said that asylum seekers who have not fled persecution should not be allowed to work in the UK. [31]

2.6 Review of the policy, 2018-2021

In December 2018, then Home Secretary Sajid Javid said he would "like to review" the permission to work policy. [32] The immigration white paper published on 19 December confirmed that the May government was "committed to listening carefully to the complex arguments around permitting asylum seekers to work". [33]

The review was taken up by the Johnson government. [34] It ultimately announced in December 2021 that it did not intend to make any changes. The announcement reiterated the government's long-standing concerns about the impact of any relaxation:

In light of wider priorities to fix the broken asylum system, reduce pull factors to the UK, and ensure our policies do not encourage people to undercut the resident labour force, we are retaining our asylum seeker right to work policy with no further changes.

It is key this policy continues to protect our immigration system from those lodging unfounded asylum claims in an attempt to avoid work visa rules, particularly at a time when dangerous journeys made by small boat are increasing. [35]

3 Arguments for and against restricting rights to work

3.1 Why restrict rights to work?

Some people suggest that giving more favourable rights would encourage more asylum applications

In justifying the general policy restrictions over the years, successive UK governments (and other supporters) have emphasised concerns that more favourable work rights could result in an increase in asylum applications by create a 'pull factor' for coming to the UK.

They commonly point to perceived risks of 'asylum shopping' (people choosing to claim in the UK rather than elsewhere because they believe that the reception conditions here are more favourable) and a potential increase in applications from 'economic migrants' whose primary motivation for coming to the UK is to work rather than seek safety. [36]

For these reasons, successive governments have sought to maintain a clear distinction between asylum and economic (that is, work visa) migration status. The concern, as expressed in March 2020, is that "our wider immigration policy would be undermined if migrants could bypass work visa routes by lodging unfounded asylum claims". [37]

These concerns are reflected in the current Home Office policy guidance. It says that the policy objectives in restricting permission to work aim to:

ensure a clear distinction between economic migration and asylum that discourages those who do not need protection from claiming asylum to benefit from economic opportunities they would not otherwise be eligible for

prevent illegal migration for economic reasons and protect the integrity of the asylum system so that we can more quickly offer protection to those who really need it

be clear that asylum seekers can undertake volunteering as this provides a valuable contribution to the wider community and may help those who qualify for leave to remain here to integrate into society [38]

Critique

Opponents argue that there is little evidence to support the idea that relaxing the restrictions would have a pull factor effect. A report by the Lift the Ban campaign coalition (discussed further in the next section) contends:

there is not one piece of credible, published evidence to support the long-term validity of this premise. On the contrary, those studies that do exist – including one commissioned by the Home Office – show that there is little to no evidence of a link between economic rights and entitlements and the destination choices of those seeking asylum. [39]

The Migration Advisory Committee has suggested that the Home Office should make any robust evidence it has on this point publicly available. [40]

3.2 Why allow people to work?

Campaigners argue that relaxing the restrictions would benefit asylum seekers and the UK economy and taxpayers

The UK's policies have attracted longstanding criticisms, including from NGOs, trade unions, and parliamentarians. [41]

The arguments in favour of increasing asylum seekers' access to the labour market have been advanced by the Lift the Ban coalition of organisations. Members include many not-for-profit organisations in the migration/human rights sectors, the Adam Smith Institute, the Confederation of British Industry, the British Medical Association and the Trades Union Congress.

The Lift the Ban campaign calls for asylum applicants and their adult dependants to be given full access to the labour market if they have been waiting six months or more for a decision. A report published by the campaign in July 2020 set out counterarguments to the 'pull factor' concerns. It also identified various positive arguments for relaxing work restrictions. [42]

The report also argued that such a policy change would both command widespread public support and benefit the UK economy, with fiscal gains of £97.8 million per year. [43] This figure was later revised to £180.8 million. [44]

Stephen Kinnock, the then Shadow Immigration Minister, stated in 2022 that Labour supported the view that asylum seekers should have the right to work in shortage occupations after six months rather than 12. He stated that this would save the taxpayer millions of pounds in weekly subsistence allowances currently paid to asylum seekers awaiting an initial decision. [45]

An expert report commissioned by the Scottish Government concluded in December 2023 that the negative impact of work restrictions on asylum seekers, the economic benefits from lifting them, and the international evidence "suggest a case for reconsidering current restrictions". [46]

Critique

The Home Office considers that the Lift the Ban assumptions on fiscal benefit to the state are "highly optimistic". It said that any employment is more likely to be close to the minimum wage rather than the UK median (average) wage, impacting tax receipts. The department also disputed the assumption that asylum seekers in work would no longer require cash support. [47]

3.3 Should some people be allowed to work but not others?

The Social Market Foundation think tank has argued that the right to work should be targeted at "asylum seekers statistically most likely to be refugees". People from countries like Syria and Afghanistan are at present overwhelmingly to be granted asylum, with success rates at the first time of asking of 98-99%. [48]

Its July 2023 report argues that people from these 'green list' countries should be allowed to work as quickly as possible, with no restrictions on the jobs they can do. By contrast, people statistically unlikely to be granted refugee status (for example, from India or Albania) could face a ban or strict controls on their right to work while awaiting a decision. [49]

4 Recent parliamentary interest

2023-24 session

In April 2024, the All-Party Parliamentary Group on Migration and the All- Party Parliamentary Group on Poverty published a joint report on the Effects of UK Immigration, Asylum and Refugee Policy on Poverty. The report stated that the UK's "asylum support is destitution by design" and recommended that asylum seekers should have the right to work after six months. [50]

A Westminster Hall debate on People Granted Asylum: Government Support was held in March 2024. Tim Farron (Liberal Democrat) asked the government to consider the recommendations made by the Commission on the Integration of Refugees, including giving asylum seekers the right to work after six months. The then Minister for Countering Illegal Immigration stated that the government did not want to "encourage the pull factor of employment". [51]

2022-23 session

A Westminster Hall debate on Asylum seeker employment and the cost of living crisis was held in December 2022. Some MPs argued that the rise in the cost of living means that asylum seekers should be given more financial support, including permission to work after six months.

Discussions of changing the rules for asylum seeker employment have been prompted by perceived labour shortages. In a November 2022 debate on labour and skills shortages, allowing asylum seekers to join the workforce after they have been waiting six months was described as a "lever" the government could pull to fill vacancies. [52]

In March 2023, Chris Stephens (Scottish National Party) introduced an Asylum Seekers (Permission to Work) Bill. The private members' bill proposed granting asylum seekers permission to work after six months. The bill did not become law.

The bill follows two Private Members' Bills from the last two parliamentary sessions: the Asylum Seekers (Permission to Work) (No. 2) Bill, also proposed by Chris Stephens, and the Asylum Seekers (Permission to Work) Bill 2019-21 proposed by Carol Monaghan. Neither bill passed into law.

2021-22 session

The House of Lords approved amendments to the Nationality and Borders bill which would grant asylum seekers the right to work after six months if a decision had not been taken on the applicant's asylum application. Those amendments were later defeated in the House of Commons. [53]

An Early Day Motion was tabled in support of allowing asylum seekers to work whilst their claims are being processed, following the Lift the Ban report discussed in section 3.2 above. The outcome of the Home Office review of the policy was announced as a written statement in December 2021; the government decided to retain the policy with no further changes. [54]

Previous sessions

Members from opposition parties moved amendments to the Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2019-21 seeking to reduce the waiting time for permission to work at Committee and Report stages, but they were not voted on. [55]

Two private members' bills seeking to extend asylum seekers' rights to work were proposed during the 2017-19 session. Neither progressed to second reading stage. These were a ten minute rule bill proposed by Catherine West (Labour) and a presentation bill proposed by Catherine Jardine (Liberal Democrat).

A short Westminster Hall debate on Asylum seekers: right to work, in the name of Dame Caroline Spelman, took place on 24 October 2018.

During Committee Stage of the Immigration Bill 2015-16, Labour moved an amendment to allow asylum seekers to work after six months and abolish the shortage occupation list requirement. It was rejected by nine votes to seven. [56]

At Lords report stage, peers voted 280 votes against 195 in favour of a similar amendment. [57] The clause did not have government support and was rejected when the bill returned to the Commons. [58] A more limited amendment moved by Lord Alton of Liverpool, which would have enabled asylum seekers to apply for permission to work after they had waited nine months for a decision on their asylum claim, was also rejected in the Lords. [59]

The issue also received considerable attention in the House of Lords during the passage of what became the Immigration Act 2014.

5 What do other countries do?

Many other countries allow asylum seekers to work sooner than the UK, albeit sometimes with conditions attached

The policy in the UK is more restrictive than in many other countries, according to the Migration Advisory Committee. [60]

EU member states must allow asylum seekers to work if they have waited for over six months for an initial decision on their asylum claim and are not responsible for the delay. This was reduced from nine months in May 2024, but member states have until June 2026 to implement the change in national legislation. [61]

Member states are free to apply more favourable conditions, and some do. [62] For example, Spain already allows asylum seekers to work after six months. Sweden allows asylum seekers to work immediately, if they can establish their identity.

In some EU countries access to the labour market is subject to conditions. For example, asylum seekers in France can work after six months but they must obtain a temporary work permit, which is subject to several restrictions.

Denmark opts out of EU asylum laws but also allows asylum seekers to work after six months. [63]

Ireland changed its policy on asylum seekers' employment rights in 2018, after the Supreme Court found that an open-ended ban on employment was unconstitutional. It opted in to the directive and allowed asylum seekers to apply for permission to work after nine months. In 2021, this was reduced to six months.

Beyond the EU, asylum seekers in Canada can usually apply for a work permit once their claim has been admitted for processing. [64] In Australia, most asylum seekers have the right to work, albeit temporarily. [65] The USA allows work after 180 days, or around six months. [66]

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[66] US Citizenship and Immigration Services, Asylum (accessed on 25 July 2024)