- BY CJ McKinney
Asylum right to work policy changed to allow (a bit) more discretion
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The Home Office has updated its policy guidance on when asylum seekers can get permission to work, following two cases finding the previous version unlawful. The update (version 10.0, published on 4 May 2021) explicitly mentions that exceptions can be made to the strict rules against working while awaiting an asylum decision.
A newly inserted section of the guidance says:
Application of discretion
Where the Immigration Rules are not met, it will be justifiable to refuse an application for permission to work unless there are exceptional circumstances raised by the claimant. If caseworkers consider that the circumstances of an application are exceptional they should refer the matter to a technical specialist to review whether the matter should be considered on a discretionary basis (under our residual discretion flowing from Section 3 of the Immigration Act 1971). Such discretion would allow a grant of permission to work, notwithstanding the requirements of the Immigration Rules. What amounts to exceptional circumstances will depend upon the particular facts of each case. A grant of permission to work on a discretionary basis is expected to be rare and only in exceptional circumstances.
In cases involving victims and potential victims of trafficking the primary objectives of the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) will be a relevant consideration, particularly with regards to their physical, psychological and social recovery. The caseworker should consider all the factual information and evidence submitted ensuring it is fully addressed particularly where a decision has been taken to consider the application on a discretionary basis.
This is followed by a redacted section marked “official sensitive”.
The document also contains new contact details for requesting permission to work. For those awaiting an initial decision on their asylum claim: email AomPTW@homeoffice.gov.uk. For refused asylum seekers with further submissions outstanding: RCMPTW@homeoffice.gov.uk. An alternative postal address is provided in each case.
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One Response
I’m concerned that the above section, found at page 16 of the guidance, does not make sufficiently clear the fact that discretion can be used to grant a broader right to work which is not restricted to the shortage occupation list. This concern arises from the fact that, at page 14, the guidance still states that if the right to work is granted it “must” be restricted to the shortage occupations. I wonder if this is still challengeable, as I cannot see any applications for broader permission being allowed where the guidance is drafted in this manner.