Can an Asylum seeker legally work in the UK?
03.10.2022
No unlawful decision on the right to work for the dependant of an asylum seeker
OH v Secretary of State for the Home Department [2022] UKAITUR JR2021LON001003 deals with the rights of an asylum seeker to work in the United Kingdom. In this case, OH challenged the refusal of his request to work whilst he was dependant on his wife’s asylum claim. OH’s wife was granted the right to work, but he was not.
An asylum seeker’s right to work
People who do not have the right of residence in the United Kingdom must abide by the rules of employment under the Immigration Act 1971. Paragraph 360 of the Act states that an asylum seeker may be granted the right to work if a decision has not been reached on their claim within one year of the application submission. However, they may only take employment in jobs that are included on the Shortage Occupation List. Rostami v Secretary of State for the Home Department [2013] EWHC 1494 (Admin) considered the various policy factors of the decision, and the main argument is that asylum seeker’s access to the UK labour market under these rules does not negatively impact British nationals, as they will only be able to occupy jobs which are experiencing shortages.
But what about their dependants?
There is no provision in the Rules that provides dependants of asylum seekers the right to work, even if their circumstance is identical to the asylum seeker. When discussing the ambit of Article 8, read together with Article 14, the Upper Tribunal confirmed that the Articles did not provide foreign nationals with a claim to work where they had no legal right of access to the labour market. The difference between primary asylum claimants and dependants was crucial.
A primary claimant would seek international protection and would not be able to go to any other country, which gives them access to the local labour market. However, a dependant does not claim for international protection and is thus able to leave the UK while the primary claimant’s application is examined.
Therefore, the Tribunal agreed with the Home Office’s reasoning and suggested that:
1. It ensured that the line between potential economic migrants and asylum seekers is not blurred;
2. It reflected that the country was not under an obligation to give dependants of asylum seekers permission to work;
3. Dependants are still allowed to volunteer.
It was also put forward that the dependant could make an independent asylum claim and, therefore, get permission to work.
