Case No. UKUT-00094-(IAC)

Asylum seekers’ access to the labour market 28. Section 1(2) of the Immigration Act 1971 provides that those without the right of abode in the United Kingdom may only work “by permission”: “Those not having [the right of abode] may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act.” 29. Council Directive 2003/9/EC prescribes minimum standards for the reception of asylum seekers. Article 11(1) provides that Member States “shall” determine a period of time, starting from the date on which an application for asylum was lodged, during which the claimant shall not have access to the labour market. Article 11(2) provides that, if a decision has not been taken within a year, provided the delay cannot be attributed to the claimant, Member States shall “decide the conditions for granting access to the labour market” for the claimant. Paragraph (4) of the article provides that, “[f]or reasons of labour market policies, Member States may give priority to EU citizens and nationals of States parties to the [EEA Agreement] and also to legally resident third-country nationals.” 30. The Immigration Rules reflect the requirement for provision for permission to work to be granted to asylum seekers, subject to conditions, in the following terms: “360 An asylum applicant may apply to the Secretary of State for permission to take up employment if a decision at first instance has not been taken on the applicant’s asylum application within one year of the date on which it was recorded. The Secretary of State shall only consider such an application if, in the Secretary of State’s opinion, any delay in reaching a decision at first instance cannot be attributed to the applicant. 360A If permission to take up employment is granted under paragraph 360, that permission will be subject to the following restrictions: (i) employment may only be taken up in a post which is, at the time an offer of employment is accepted, included on the list of shortage occupations published by the United Kingdom Border Agency (as that list is amended from time to time); (ii) no work in a self-employed capacity; and (iii) no engagement in setting up a business. 360B If an asylum applicant is granted permission to take up employment under paragraph 360 this shall only be until such time as his asylum application has been finally determined. 360C Where an individual makes further submissions which raise asylum grounds and which fall to be considered under paragraph 353 of these Rules, that individual may apply to the Secretary of State for permission to take up employment if a decision pursuant to paragraph 353 of these Rules has not been taken on the further submissions within one year of the date on which they were recorded. The Secretary of State shall only consider such an application if, in the Secretary of State’s opinion, any delay in reaching a decision pursuant to paragraph 353 of these Rules cannot be attributed to the individual. 360D If permission to take up employment is granted under paragraph 360C, that permission will be subject to the following restrictions: (i) employment may only be taken up in a post which is, at the time an offer of employment is accepted, included on the list of shortage occupations published by the United Kingdom Border Agency (as that list is amended from time to time); (ii) no work in a self-employed capacity; and (iii) no engagement in setting up a business. 360E Where permission to take up employment is granted pursuant to paragraph 360C, this shall only be until such time as: (i) a decision has been taken pursuant to paragraph 353 that the further submissions do not amount to a fresh claim; or (ii) where the further submissions are considered to amount to a fresh claim for asylum pursuant to paragraph 353, all rights of appeal from the immigration decision made in consequence of the rejection of the further submissions have been exhausted.” 31. Put simply, asylum seekers (a term I shall use in this context to include those awaiting a decision on further submissions under paragraph 353) may only access the labour market when their claim has been under consideration for at least 12 months, provided the delay was not their fault, and once granted, permission to work is restricted to roles on the SOL. The SOL is maintained by the Home Office, on the advice of the Migration Advisory Committee, an independent, non-departmental public body that advises the Secretary of State on migration issues. 32. I turn now to the Work Policy. Much of the content of the policy concerns operational instructions to caseworkers. However, it sets out the “policy intention” behind the permission to work regime in the following terms: “The policy objectives in restricting permission to work for asylum seekers and failed asylum seekers whilst their claim is considered are 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[.]” 33. In