Can asylum seekers work while waiting for a decision on their case?

Asylum seekers who would otherwise face destitution must rely upon support from the government. This support is limited to either £8.86 a week if their accommodation provides meals or £49.18 in other cases which means most will struggle to meet their basic needs. Given this meagre level of support, it would be sensible to presume asylum seekers would automatically be granted permission to work whilst their claim is pending. However, those applying for asylum face extensive restrictions on their right to work.

In October of this year the government published an updated version of their guidance on permission to work and volunteering for asylum seekers. This article provides an overview of the right to work rules for asylum seekers including reference to the latest changes such as the introduction of an ‘Immigration Salary List’.

What do we mean by “asylum seekers”?

For the purposes of this article, an asylum seeker is someone who has applied to the Home Office for protection on the basis that they have a well-founded fear of persecution or serious harm in their home country and is awaiting a decision on that application.

The new guidance also covers those who have received a negative decision on their asylum claim and are in the appeal process, as well as those who have submitted ‘further submissions’ (a guide to making further submissions can be viewed here).

The most recent statistics on asylum processing show increasing delays and backlogs. Given extended timeframes for decision making, the ability of people to work during this time is arguably more important than ever.

Basic rule: no right to work 

As a starting point, asylum seekers do not have the right to work while their claims are being considered.

The only meaningful exception to this rule is where the person has an existing right to work. This would come about if, at the time they applied for asylum, they had another form of leave (i.e. a visa or permission to stay) which came with a right to work. Where someone with existing leave makes a valid application — including an asylum claim — before that existing leave expires, it is automatically extended by section 3C of the Immigration Act 1971 until their application is determined.

It is important that someone in these circumstances who is considering claiming asylum does so before the expiry of their leave to benefit from this provision. A late claim will mean that section 3C does not apply.

Example

Anna is in the UK with leave as a student, valid until 31 October 2024. The conditions on her student visa give her the right to work for 20 hours a week in term time, with no restrictions on hours of work outside of term time.

Anna makes an asylum application by attending a screening interview on 15 October 2024. Her leave is automatically extended, including her right to work, until the Home Office makes a decision. In the event, it decides to grant Anna asylum in July 2025. From that point on, she has the right to work because of her refugee status.

If instead of granting her asylum, the Home Office refuses the application, and she appeals within the specified period for lodging an appeal, her leave (including her right to work) will be extended again until her appeal is finally determined.

It is possible for the Home Office to amend the conditions on someone’s leave, including the right to work. Anecdotally, this does sometimes happen to asylum seekers who would otherwise retain an existing right to work.

Requesting permission to work after 12 months

The immigration rules (part 11B) provide for asylum seekers to apply to the Home Office for permission to work if their asylum claim has been outstanding for over a year:

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.

So an individual can only apply for permission to work after 12 months of delay, where that delay is not attributable to their own actions.

How to apply

The procedure for applying for permission to work is the same in both instances and is outlined in Home Office guidance. It involves completing form PTW1 and sending it to  AsylumPTW@homeoffice.gov.uk. If granted, the Home Office will then reissue the asylum seeker’s Application Registration Card (ARC) and endorse it with the right to work, subject to conditions.

Paragraph 360C confirms that this also applies to further submissions under paragraph 353 of the rules. The process for applying is the same except form PTW1 should be sent to: FurthersubmissionsPTW@homeoffice.gov.uk instead.

There is no provision for a dependant of an asylum seeker to apply for permission to work, unless they are claiming asylum in their own right.

We don’t know how many people are granted permission to work in accordance with the immigration rules because the Home Office doesn’t publish any data. In our experience, such applications are usually granted (eventually). But someone who does get permission to work in principle runs into a further problem: limitations on the type of job they are allowed to do. 

The types of employment someone can then take up is severely restricted by the operation of two lists, the ‘Shortage Occupation List’ and the ‘Immigration Salary List’ which will eventually fully replace the former. The introduction of Immigration Salary List means that the position is different for those applying for permission to work pre and post 4 April 2024.

Applications pre 4 April 2024

The Shortage Occupation List applies to permission granted before 4 April 2024.  It consists of jobs such as doctors, scientists, engineers, paramedics, architects and nurses, as well as some more niche occupations such as dancers and high integrity pipe welders. Most people, whether asylum seekers or members of the general population, lack the skills, training and qualifications that would get them hired in most of these fields. However, in a positive step, in 2022 the list was slightly expanded to include care workers and home carers.

Applications on or after 4 April 2024

Those applying for permission to work after this date may only work in jobs contained within ‘Appendix Immigration Salary List’.

The Immigration Salary List is significantly shorter than the occupation list and focuses on roles where there is a significant shortage of labour. The list includes work such as bricklayers, careworkers and musicians, but much of the occupations in the shortage occupation list have been removed.

The above means that even when an asylum seeker is given permission to work, the limitations on that employment means that the vast majority of people in this position are still shut out of the workforce, forced to rely on meagre asylum support payments that are often not enough to meet their basic needs.

Haven’t there been legal challenges about all this?

The policy denying asylum seekers the right to work except in these very restrictive circumstances has been successfully challenged in the High Court, the Upper Tribunal and then the High Court again. Each decision held the policy in its iteration at the time to be unlawful because of its lack of flexibility which admits no possibility of exceptions. 

As a result of these challenges, it is now possible to ask the Home Secretary to exercise discretion to grant permission to work outside the immigration rules, although as ever, the applicant will need to demonstrate that there are exceptional circumstances.

In addition to the legal challenges, there is a coalition of hundreds of organisations continue to campaign to lift the ban on asylum seekers working. It is also worth noting that the Migration Advisory Committee has also recommended that the shortage occupation list is abolished.

Policy not fit for purpose

The official thinking behind this extremely restrictive policy is that enabling asylum seekers to access the job market before being granted asylum would serve as a “pull factor” for migration into the UK. To the best of our knowledge, there is no evidence to support this assertion. 

Giving asylum seekers an effective, rather than symbolic, right to work would allow them to support themselves financially, lower poverty rates, and generate higher tax revenues. It would also significantly reduce the costs associated with the use of housing asylum seekers in hotels. Surely then, this is a policy change that should appeal to both sides of the political spectrum.

This article was originally co-authored with Alex Piletska. It has been updated by Katherine Soroya so that it is correct as of the new date of publication shown.