Updates, commentary, training and advice on immigration and asylum law
How asylum seekers can get jobs in social care
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On the last working day before Christmas, the government announced that it is adding social care workers to the Health and Care visa and Shortage Occupation List. The change is due to come into force “in February 2022“.
The Home Office describes this as a temporary measure, in place for a minimum of 12 months. During that period, all roles within SOC Code 6145 will be eligible for sponsorship at a minimum salary of £20,480: care assistant, care worker, carer, home care assistant, home carer and support worker (nursing home).
In addition, the fact that they are going on the Shortage Occupation List means that people who have been waiting over a year for a decision on an asylum claim can apply for permission to work in these roles.
Working while in the asylum system
The shortage of care home workers has been well documented and the Migration Advisory Committee recommended including them on the shortage list in its annual report published on 15 December. But the government declined to implement another recommendation from that report, namely to review the policy on allowing people seeking asylum to work. This is only allowed if the person has been waiting over 12 months for an initial decision on their claim through no fault of their own, and then only to work in shortage jobs.
The MAC said that one option would be to allow people to work if they have been waiting for six months. It also questioned the value of restricting permission to work to the Shortage Occupation List, describing the reasoning behind the decision as not “particularly coherent”.
The Home Office regularly complains about the cost of asylum support. This is largely self-inflicted, arising from the combination of decision-making delays and the prohibition on working in the meantime. The excellent Lift the Ban report highlights the savings possible from allowing people seeking asylum to work after six months rather than 12. But the department worries that permission to work acts as a “pull factor”, and concluded that the report’s assumptions are “highly optimistic. Having considered a wide range of available evidence the Home Office believes that a more realistic set of assumptions would present a more nuanced picture”.
It has declined to share this evidence. As the MAC put it: “To the extent that the Home Office has robust evidence to support a link between the employment ban and a pull factor, they should of course make this evidence publicly available for scrutiny and review. That is how good policy is made”.
Nonetheless, the addition of these care roles to the Shortage Occupation List provides some hope for people stuck in the asylum system for more than a year (over 33,000 in 2020) and who are reliant on wholly inadequate asylum support.
Considerations for employers
One major advantage to employers recruiting people seeking asylum into these roles is that there is no need to get a sponsor licence or to pay the immigration skills charge. The fact that the policy change is being reviewed after 12 months may put off some applicants from overseas (see also pork butchers), making this UK-based pool of potential workers that much more important. Nor, so far as I know, would employers have to pay the minimum salary of £20,480 (£10.10 per hour) that would be required if sponsoring someone for a visa.
On the other hand, the employer will not know how long their new employee will have permission to work. If the person’s asylum claim is rejected, they would eventually lose the right to work. But there are extensive delays in decision-making, and even after an initial claim is rejected, the person has the right to an appeal which can then take another year or more to be heard. Permission to work is retained until appeal rights are exhausted. And if the asylum claim succeeds, the right to work is no longer an issue.
Employers are able to verify that a person seeking asylum has permission to work by checking their Asylum Registration Card and getting a “positive verification notice” from the Employer Checking Service. These checks must be carried out every six months in order to maintain the statutory excuse against liability for a civil penalty for employing someone who is not permitted to work.
Social care workers have to be vaccinated against COVID-19. People seeking asylum may be hesitant to engage with the NHS due to their lack of immigration status, but Doctors of the World have a helpful guide on getting the vaccine.
Applying for permission to work
The exact date for adding care workers to the shortage list has not yet been announced. Once in place, we can expect the Home Office to be slow to decide individual permission to work applications. It will be better to apply sooner rather than later. (Katherine and Alex have outlined the process for applying for permission to work in this useful article.)
Another potential advantage to applying for permission to work is that, according to Home Office guidance, “caseworkers dealing with a permission to work application must first review the asylum claim to assess the reason for the delay and ensure that the case is not unnecessarily delayed any further”. So this may be a way to get the underlying asylum case moving. It is also possible, if not likely, that more jobs could be added to the Shortage Occupation List due to labour shortages caused by Brexit and the pandemic.
In my view, it is worth applying for permission to work as soon as the wait for a decision passes 12 months.
Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.
Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.