In OH v. Secretary of State for the Home Department [2022] UKAITUR JR2021LON001003, the issue of an asylum seekers dependent’s entitlement to employment in the UK is raised.
When his request to work was denied while he was a dependent on his wife’s asylum claim, OH appealed the decision. Both OH and his wife worked in the medical field. His wife applied for asylum with OH as her dependent after fleeing to the UK and making three unsuccessful asylum claims as the main applicant. They requested the Secretary of State to use her discretion as neither of them qualified for work authorization under immigration regulations. The right to work was given to OH’s wife, but not to him.
The court affirmed that, for the purposes of applying article 8 read in conjunction with article 14 of the European Convention on Human Rights, the Secretary of State did not need to use discretion when evaluating a request for authorization to work.
The Right to Employment of An Asylum Seeker
According to the Immigration Act of 1971, anyone who does not have the right to live in the United Kingdom can only work if they obtain permission. If an asylum seeker’s claim is not resolved within a year of the date the application was recorded, paragraph 360 of the Immigration Rules permits them to be given the right to work. If authorization is granted, an applicant for asylum may only accept a position that is on the Shortage Occupation List.
Several policy considerations led to the choice to permit asylum seekers to work. In Rostami v. Secretary of State for the Home Department [2013] EWHC 1494 (Admin), it is also considered. The basic argument is that since asylum seekers can only work in positions that the local labour market is unable to fill, providing them access to the UK labour market has no negative effects on British citizens.
What About Their Dependents, though?
The advice affirms that, even if an asylum seeker’s claim takes longer than a year to be adjudicated, the Immigration Rules do not grant dependents of asylum seekers permission to work. However, it is difficult to see why a caseworker would limit the advice to first asylum claimants and new applications exclusively. For people who do not currently have permission to work, there is no further guidance available, and the guidance already gives them plenty of room to volunteer. To allow dependents to have discretion used in their favour, the court determined that the policy, as it would be understood by caseworkers, would apply to both the primary claimant and the dependants of asylum applicants.
The Upper Tribunal was far less enthused when it came to the issue of whether a right to work was covered by Article 8 when read in conjunction with Article 14. If no discretionary consideration is provided to dependents, according to OH, the guidance may be illegally applied. The court clarified, however, that article 8 did not grant a foreign national entitlement to work if he had no permitted right of entry to the domestic labour market in R(oao Negassi) v Secretary of State for the Home Department [2013] EWCA Civ 152. Article 8 had to be invoked to distinguish between principal claimants who had this right and dependents who did not.
An independent claim for international protection is not made by a dependent. The principal claimant’s asylum request would, in theory, not prevent OH from departing the UK or returning to his own country. As a result of their need for international protection and lack of other options, the primary claimant has access to the local labour market.
The Home Office’s explanations for the disparity in treatment were accepted by the Tribunal, which included that:
- In its effort to safeguard the local labour market, it gave the economic prosperity of the United Kingdom top priority, making sure the distinction between potential economic migrants and asylum seekers is clear
- It demonstrated that the government was under no international responsibility to allow dependents of asylum seekers the freedom to work
- Dependents of asylum seekers are permitted to volunteer; nevertheless, they are not permitted to take on paid employment
The Upper Tribunal acknowledged that it was possible for a person to have filed a claim on their own, which would have given them the ability to work. But this raises the issue of why any adult who satisfies the requirements for asylum would ever apply as a dependent.
The Home Office was ultimately responsible for “drawing a line” about who was allowed to access the local labour market. Adopting a severe policy toward dependents of asylum applicants is a valid representation of these policy goals and is also permitted by article 8.
Written by:
Tahir Shahab Khan
Managing Director