Mr. Rimmer Evaluates the Failure of Countrys To Ensure Asylum Seekers the Right To Work

Professor Birdsong’s student, Matthew Rimmer, has written a a compelling seminar paper wherein he evaluates the failures of countries  to ensure asylum seekers’ their right to work.  It is a well written.  Read it and learn.

Working Through Asylum: An Overview of Refugee and Asylum-Seekers’ Ability to Attain and Maintain Employment in Countries of Refuge.

Matthew Rimmer © 2012

1. I.                INTRODUCTION

The right to work is a protected right under international human rights laws. This paper examines the rights of refugees and asylum-seekers and their uphill battle to find work outside of their country of origin. In order to frame the issues around the right to work as it relates to asylum-seekers the paper briefly covers the broader issue of the right of migration in general.  By exploring a few of the key international treaties and national laws that establish the right to work, this paper examines the struggles that refugees and asylum-seekers often face when they are denied their fundamental human right to work.

Asylum-seekers, by their very definition, are seeking a “safe place or a violable place of refuge” when they flee their countries of origin.^[1] In many well developed countries, status as a refugee usually grants the same rights to work as the citizens of the country of refuge.[2] Generally, when a person is forced out of their nation of origin in to another nation they must apply for refugee status.[3] While the applicant awaits the decision regarding their pending application they are referred to as “asylum seekers”.[4] It is left to the decision of the host nation, or the countries where the fleeing individual is seeking refuge, whom, if anyone qualifies for refugee status.[5]

This paper evaluates the grey area that occurs when a country fails to ensure the right to work for refugees and asylum-seekers and, in turn, the consequences that these immigrants face when they are subjected to this. It also walks through the process of establishing an asylum claim in the United States and pinpoints the problems that exist after a claim is made. Finally, suggestions for more mutually beneficial laws, procedures, and practices are offered and explained.

1. II.              MIGRATION

Since both refugee law and the laws of asylum stem from the act of migration, it is important to start there. Global migration has long been a part of human history.  According to International Organization for Migration (IOM), the term migration means: “The movement of a person or a group of persons, either across an international border, or within a State. It is a population movement, encompassing any kind of movement of people, whatever its length, composition and causes; it includes migration of refugees, displaced persons, economic migrants, and persons moving for other purposes, including family reunification.”[6]  It has existed for millennia, and has brought positive effects to the societies that have been able to benefit as hosts to migrants.[7]

Anyone who says that migration’s negative impact on host nations outweigh the benefits has failed to realize the positive social and economic effects that migration has been shown to have.[8] In fact, there is strong evidential support that immigration enhances the overall development and cultural atmosphere of the host society.[9] Despite proof of the benefits of migration, immigrants are often met with resistance from natives of host countries. There are many reasons for this discontent toward immigrants, but most can be attributed to insecurities of citizens within the host society.[10] Another aspect that is important to consider is that immigration commonly occurs during times of economic restructuring and social movement.[11] The influx of immigrants into a country that is already undergoing change can cause insecurity among that country’s native citizens, so much so that the immigrants are met with immediate resistance.[12] This resistance can often lead to wild accusations and prejudices, such as blaming immigrants for unemployment for citizens, rises in crime rates, and the spread of disease.[13] In countries that harbor ill-feelings toward immigrants, their resistance toward immigration may (and often does) lead to problems for those individuals seeking asylum and those recognized as refugees.[14] Fear of asylum-seekers, refugees, and other immigrants taking jobs, housing, and other goods from citizens of host countries is often a leading factor in refugees and asylum-seekers inability to find employment and other basic human necessities in the countries of refuge.[15]

1. A.    Refugees vs. other immigrants.

In order to avoid confusion, it is important to note the differences between refugees, asylum-seekers, and other types of immigrants. The IOM defines an asylum seeker as:

“A person who seeks safety from persecution or serious harm in a country other than his or her own and awaits a decision on the application for refugee status under relevant international and national instruments. In case of a negative decision, the person must leave the country and may be expelled, as may any non-national in an irregular or unlawful situation, unless permission to stay is provided on humanitarian or other related grounds.[16]

Respectively, a refugee, as defined by the 1951 UN Conventional Relation to the Status of Refugees, is defined as a person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable, or owing to such fear, is unwilling to return to it.[17]

Therefore, we have refugees, who are unable to return to their country of origin because of a well-founded fear of persecution, and asylum-seekers who are individuals awaiting recognition of refugee status. There are then a few key differences between asylum-seekers and refugees as compared to other immigrants that stand out. First and foremost, a refugee is forced out of their country of origin.[18] In other words, something drove them out in order for them to be qualified as refugees or in need of asylum, whether it be tormenting or threats of death and torture, there was some recognizable harm that they were suffering in their country of origin which caused them to leave. Author Emma Haddad, in her book about the experiences of international refugees described refugees as “an individual who has been forced, in significant degree, outside the domestic political community indefinitely.”[19] In other words, a refugee can longer claim any state as their own, and it is up to the international community to provide them with protection.[20]

The refugee’s constrained or forced migration is what makes them distinct from all other types of immigrants. Arguably the most important type of immigrant that refugees and asylum-seekers should be distinguished from is the economic migrant. The economic migrant is “a person leaving his or her habitual place of residence to settle outside his or her country of origin in order to improve his or her quality of life.”[21] The IOM goes further, stating “This term is often loosely used to distinguish from refugees fleeing persecution, and is also similarly used to refer to persons attempting to enter a country without legal permission and/or by using asylum procedures without bona fide cause.”[22]  Failure to recognize this difference often causes tax-paying citizens to overlook the fact that refugees do not migrate for the purpose of finding work. This inaccuracy about who, or more specifically what refugees actually are will often put them at a further disadvantage in the workplace because it gives rise to the general prejudice against all immigrants, especially those who enter a country in order to work.[23]

Asylum-seekers’ hurdles are not overcome when they escape the persecution faced in their country of origin. There are a considerable amount of obstacles awaiting asylum-seekers in the countries they find themselves in once they have fled their homes.  In addition to trying to understand a new culture and navigate through a new land, a leading problem asylum-seekers face is a language barrier between themselves and nationals.[24] It is important to think of the grueling circumstances that asylum-seekers must endure throughout the entirety of the refugee process, not only in their country of origin. Ultimately, these people will need to find places to live, schools that will educate their children, medical assistance, and finally the chance to find work in order to support their families.[25]

The 1951 Convention provides within it an obligation to not force a refugee to return to his or her country of origin.^[26] This principle is called is called non-refoulement and it prohibits the return of any refugee to a territory where his or her race, religion, nationality, or political opinions will result in a legitimate fear of his or her life or freedom.^[27] The term non-refoulement was originally preserved in the 1951 Convention and also in the 1967 Protocol Relating to the Status of Refugees.^[28] It was in 1967 when the international community recognized that the world needed to regulate the rights of refugees further, and in turn the Protocol was enacted. ^[29]  Neither the 1951 Convention nor the Protocol explicitly grants a right to asylum, but instead the right not to be refouled. The basic principle of non-refoulement is that if a country was to send a refugee back to their country of origin, the host country would, in effect, be aiding in the persecution of that individual.^[30] The 1951 Convention was more or less a response to the Holocaust.[31] The topic of protection against persecution moved to the top of the international agenda after the Nazis murdered six million Jews that were members of their own communities.[32]

1. III.            THE RIGHT TO WORK

Employment is a necessity for survival and can also be necessary to an individual’s fulfillment with their own life. Lack of employment and unemployment rates are constantly a cause of concern in many countries, the United States especially. Far reaching decisions are made and legislation is often passed based on unemployment rates, in hopes of lowering them. This section evaluates the necessity of the right to work and its origins in international law, as well as on a state level.

The right to work is a concept based in humanitarian law that more or less upholds everyone’s right to gainful or productive employment. International human rights law strives to guarantee rights to individuals. The word “individual” is important when considering international human rights laws because it distinctly identifies a single person and does not group people as nationals of any particular state.[33] In turn, international human rights laws protect everyone, not just those people affiliated with a particular state. The protections of human rights laws include within them the right to work, and the right not to be prevented from doing so.[34] The ideals behind international human rights laws are well rooted throughout the international community and much of the laws are already in legislation in some form of treaty, the real issue is that the institutions that enforce these laws are still not as widespread or powerful as they need to be to universally ensure human rights.[35] The Charter of the United Nations, which was signed by the United States and 50 other original member states in 1945, proclaims it’s goal to be: “To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to sex, language, or religion”.:

International human rights law came about, mostly, as a worldwide reaction to the Holocaust.[36] The travesties of the Hitler era and World War II itself were enough to set in motion a movement toward an international system to ensure the protection of human rights.[37] Therefore, once refugee status is established, the protection of the right to work is generally upheld. Refugees are usually allotted the same rights to work as citizens in most developing countries.[38] Therefore, problems concerning the right to work as it pertains to refugees are generally found in their access to the labor markets.[39]Asylum-seekers, on the other hand, have a much more difficult time getting work than those who have been established as refugees.[40] Because many countries leave asylum-seekers out in the cold when it comes to finding employment and the right to work, places of hopeful refuge turn out to provide dangerous living conditions. Sometimes, the denial of the right to work can be the basis for an individual to seek asylum. In a decision by the US Court of a Appeals, we find that “the denial of an opportunity to earn a livelihood in a country such as the one involved here [Yugoslavia] is the equivalent of a sentence to death by means of slow starvation and none the less final because it is gradual. The result of both is the same.”[41] With many countries not allowing access for asylum-seekers to labor markets, the risk of starvation is a reality for these individuals who await a decision on their refugee status.

The right of refugees to work can be viewed from a broader sense when looking at general human rights laws. The United States voted in favor of the Universal Declaration of Human Rights (hereinafter UDHR).[42] As the first recognized treaty on human rights, the UDHR calls for “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family [as] the foundation of freedom, justice and peace in the world.”[43] It establishes the right of everyone to seek asylum in other countries when faced with persecution in their own country.[44] Further, the UDHR goes on to state that “[e]veryone, as a member of society, has the right to social security and is entitled to realization . . . of the economic, social and cultural rights indispensable for his dignity. . .”[45] It expands even further on our topic by blatantly stating: “[e]veryone has the right to work”[46] and “the right to rest and leisure.”[47] In theory, the UDHR seems great and fully protective of the refugees right to work, it is in practice where troubles arise.

 

1. A.    An Overview of States’ Practices Concerning the Right to Work

It seems necessary to give a brief rundown of some of the more restrictive, and therefore problematic, policies in place dealing with the right of asylum-seekers to find work. As mentioned earlier, refugees are more often than not granted the right to work, in theory and law, but in practice this is not always so. Asylum-seekers have more trouble when finding work in their country of refuge. The following is a brief look at some specific actions that countries take when dealing with asylum-seekers entering their work force:

Germany allows asylum-seeker to work if they maintain a residence for one calendar year, and the approval is granted only if there are no German citizens or recognized refugees available for the same employment.[48] The U.K. allows asylum-seekers to access the labor market if their application for refugee status has not been decided after one year.[49] Greece supposedly gives asylum-seekers the right to work almost immediately; however, preference is given to Greeks and recognized refugees. Greece has also been recognized as not implementing their policy by the Court of Human Rights.[50] Spain makes asylum-seekers wait six months after filing their refugee status to enter the labor market.[51]All of these policies and their practices prove difficult hurdles for asylum-seekers to not only work, but survive in the countries they flee to. It is clear that most of the above listed policies leave asylum-seekers without any right to work for up to a year in most cases. Even worse, in many countries refugees and asylum-seekers have no legal right to work. Egypt is a prime example of a country where refugees and asylum-seekers are prohibited the right to work.[52] Egypt offers no protection of a recognized refugee’s right to work and therefore none exist for asylum-seekers either.[53]

 

 

1. B.    Refugees and Asylum-Seekers Right to Work In the United States

In the United States, individuals seeking refuge must undergo an application process. This process begins by the asylum-seeker submitting an application to the proper offices.[54] Generally, an asylum-seeker would submit their application to one of the USCIS Service Center in Nebraska, Texas, California, or Vermont.[55] Unless, the applicant is already in removal proceedings, in that case the applicant is to file their application with the proper immigration court that has jurisdiction over the applicant’s removal case.[56] These applications consist of 11 pages of instructions and 13 pages for the asylum-seeker to fill out.[57] However, a fully completed application, inclusive of affidavits from the applicant, witnesses, and experts, and country condition information, could span upwards of 500 pages.[58]

Once the asylum-seekers application is received, the process of affirmation starts.[59] Within forty-five days of the receipt of the application an, an applicant asylum-seeker will be scheduled for fingerprinting and initial interviews.[60] If there is an attorney is representing an applicant, they often have a limited part in the asylum interview and affirmative application process.[61] The interview is conducted by an asylum officer, asking whatever questions remain after review of the application, and the attorney is allowed to ask questions regarding the application and interview at the end of the interview. The asylum officer conducts the interview, allowing the attorney to ask any follow-up questions at the end.[62] The attorney may make a closing statement to the officer.⁷¹ Often times the attorney will give a closing argument after the interview and submit a copy of it in writing.[63]

The applicant must then wait two weeks from the date of their interview to receive a letter which will tell them whether or not their application has been granted, denied, or referred to another court.[64] If the application is granted, this is good news for the applicant because it means that they are allowed to stay in the United States, legally, and will have the opportunity to apply for citizenship.[65] If the application is denied then, if the application was lawfully present in the United State before applying is able to continue with that status until it lapses.[66] Once a decision is reached there is no process for appeal if it is denied.[67] If a referral is given this generally means that the asylum applicant is no longer eligible for lawful status does not have lawful status in the United States. The case is then referred to the proper immigration court to undergo removal proceedings.[68]

If an applicant is already undergoing removal proceedings in an immigration court they may re-apply for asylum, this is what is known as filing a “defensive application” for asylum.[69] The Immigration court is required to hear and adjudicate the asylum case within 180 days of their receipt, unless the applicant waives the 180-day requirement, which applicants often times do.[70] This allows applicants a longer time in the United States as their case is being decided.  If the asylum claim is granted, the applicant may enjoy the rights they would have if their claim was granted prior to removal proceedings. If the applicant’s claim for asylum is denied they have thirty days to appeal the decision.[71]

During the time their application is considered, asylum-seekers are unable to work without prior authorization, which is not to be granted for 180 days.[72] This is a rather recent change in the U.S. laws on asylum. Before 1995, applicants did not have to wait the mandatory 180 days, however, in a scheme to protect against frivolous asylum claims, the United States Immigration and Naturalization Service (lNS), put the 180-day waiting period in effect.[73] This has been reportedly effective, as bogus claims for asylum have been found to decrease significantly in the past decade, according to the INS.[74]  The INS has commented on their decision to change the asylum process by stating that they have “removed the primary incentive for baseless asylum claims.”[75]

Whether the INS’s assumption and conclusions regarding the change in the asylum applicant’s right to work is correct is difficult to determine. There is however, a very clear cost that asylum-seekers pay because of the 1995 change. Since Asylum-seekers are afforded no welfare benefits are denied the right to work, the question is then begged, how do these asylum-seekers, who are in a state of legal limbo survive in the United States during this time?

Refugees’ survival of persecution and vulnerability puts them at a disadvantage. Because Refugees are generally in unfamiliar territory and face many barriers to participation in the host society it can be a difficult transition for them.[76] This makes finding work even harder, even when there are no legal barriers to them working. They may require ‘welfare’ in the initial stages of their settlement. In the US the federal government will often provide refugees with 6 months of welfare when they arrive.[77] However, asylum-seekers do not receive welfare during their application process.

1. C.     Denying Permission to Work

            The human and social costs that asylum-seekers and refugees face when denied access to employment are numerous.Without the security of the right to work these refugees suffer a bona fide denial of liberty.[78]An inability to work can result directly in an inability to“ study, travel, or interact with others, and sometimes family separation.”[79]Further, there are detrimental economic costs that are suffered by those denied the right to work. The loss of employment opportunities may and often does extend to the asylum-seeker’s families, who depend upon their applicant’s income.[80]There is also the matter of the applicant’s ability to seek counsel, without the income from gainful employment it may be impossible for an asylum-seeker to be able to get the legal assistance necessary to properly file their claim.[81] Their lack of income leads to a lack of transportation, education, and overall smothers their liberties to the point where they are no longer enjoying their natural human rights.

            Back to the question of what happens to asylum-seekers who are denied the right to work in their country of refugee. Simply put, they struggle to survive. They lack the basic necessities that are encompassed within their right to work, such as food, clothing, and transportation.

The UDHR explicitly states that:

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.[82]

Short of a guaranteed right to work, asylum-seekers and refugees are denied these declared rights. Unfortunately, the UDHR is not legally binding on any of its signatories but is rather just a declaration of rights.[83]

It is important to evaluate the reasons behind refusing refugees and asylum-seekers the right to work, and to realize that the majority of these reasons are irrational.  First, some countries may harbor fears that if refugees and asylum-seekers are granted access to work   endorses integration of refugees in to their host societies.[84] This idea of integration is often times looked at by host societies as a tool refugees can use to avoid deportation and repatriation to their country of origin.[85] This reasoning is flawed because it overlooks the benefits of integration, which will be discussed later in this paper. Further, there is no evidence to support that any form of economic migration is promoted by or occurs because of the Refugee Convention.[86] The principle of asylum itself is not the cause of abuse of the process. Instead, the evidence shows that inadequacies in asylum procedures are to blame for this.[87]

Next, many countries think that giving refugees and asylum-seekers immediate access to work serves as a lure for false applications and further fraud.[88]  As mentioned earlier, the United States changed their policies in 1995 to avoid these types of fraudulent claims from asylum-seekers. However, this reasoning fails to recognize the refugee’s involuntary presence in the host nation. It seems that believers in this school of thought are confusing refugees and asylum-seekers with economic migrants and ignoring their constrained nature. It may also be a fear of citizens that refugees and asylum-seekers will take the place of nationalized citizens in the workplace.[89] The problem with this assumption is that it is baseless; it represents the irrational driving force behind the resistance to allow refugees and asylum-seekers to work for the entirety of their stay in their host nation.

Refugees and Asylum seekers also face the dubious uncertainty that comes with their status.[90] As they are uncertain of the extent and duration of their stay in their host countries, it adds another hurdle to their ability to get hired. Employer may be dismayed from hiring refugees and asylum-seekers if they know that there is no certainty as to their time of employment.[91]

 

1. D.    Reasons and Suggestions to help ensure Refugees and Asylum-Seekers Right to Work.

Because it is impossible to foresee how long refugee status will be needed or when the protection will end, the solution to house them in camps often comes up.[92] This is inhumane; it completely segregates refugees from the rest of the host society and should not even be an option today. With the existence of refugees, it is foreseeable that these people will some type of public assistance, at least for the few months after their arrival in to a host nation.[93] This poses the question then, “what is the appropriate extent of social and economic rights afforded asylum seekers and refugees?”[94] This question gives a duty to the international community and individual nations alike to draft legislation that assists those who fled their homes fearing persecution. It is undeniably a challenge to make everyone happy in this situation, as the irrational fears of immigrants and refugees will likely always be there, that is why it is important to take a first step of educating our nations on the existence and the realities of refugees. At least if a large portion of citizens in host nations were aware and somewhat sympathetic to the needs of asylum-seekers, they might have a chance at being met with less resistance at the forefront. With education lies the key to a movement which will make it easier to enact legislation that protects the social and economic rights of refugees and asylum-seekers alike, and protects this vulnerable class of people against abuses.

There are many downfalls to not allowing asylum-seekers the ability to support themselves. Most notably, no one benefits from a class of refugees and asylum-seekers who are denied access to legal work. To the contrary, economic benefit can really only be realized if these asylum-seekers are permitted to work. It has also been well established that by facilitating access to employment for refugees and asylum-seekers segregation and exclusion from the host country is avoided almost wholly.[95] Without the security of a right to work, host societies are encouraging asylum-seekers to seek illegal work, and further subjecting them to the turmoil that more often than not comes along with it.

As previously mentioned, allowing refugees to work in their host countries facilitates the integration of refugees. It can be argued that integration should not begin when refugee status is decided, but instead it should commence when the asylum claim is made.^[96]  This would require immediate access to the workplace, from the day the asylum application is filed. Since, Integration seems only fitting, and the most mutually beneficial solution for both the asylum-seeker and the host nation, it would behoove all states to adopt the policy of immediately permitting genuine asylum claimants to have access to the workplace. By implementing stricter screenings of asylum claims from the forefront and establishing whether or not a claim is well-founded during the initial phase of the process, access to employment would be a simple an effective method of ensuring that asylum-seekers, as well as refugees, are allowed their basic human rights. This also highlights the need for expedited and fair refugee status determinations globally, rather than a denial of work during the time between filing and the decision.

Even in host nations where work is allowed, refugees and asylum-seekers often meet resistance. There is no reason to have a skilled refugee or asylum-seeker not contributing to the labor market of their host nation; this is a disservice to the host nation and the refugee alike. A greater public awareness of the problem would likely be beneficial to those out of work. Educating employers about the benefits of hiring refugees and asylum-seekers would be one route to ensure that they are not met with as much discrimination as they currently do. This will require political action and setting a precedent of hiring those who are seeking refuge in host nations. Perhaps efforts to fulfill the right to work would be well served through vocational outreach for resistant citizens, this could be done by providing evidence that refugees and asylum-seekers can lend substantial economic benefits to their host nations when they are permitted to do so.[97]

1. IV.            CONCLUSION

            Apart from the persecution that they face in their nation of origin, asylum-seekers are further confronted with a numerous legal and procedural hurdles to overcome before they are able to establish themselves as refugees and effectively gain asylum in most countries. With long, drawn-out application processes that can span years and be invasive and difficult for an applicant to understand without counsel, asylum-seekers are met with an almost tangible sense of resistance in most host nations. Many asylum-seekers would benefit greatly from the help of an attorney, but they are often times unable to get one because of their inability to support themselves. This stems directly from the denial of the right to work.

The right to work can have social, economic, and humanitarian benefits when employed properly. For asylum-seekers, decent work can lead to the development of otherwise absent skills, enjoyment and fulfillment of life, and can make them contributable members of their host nations. Conversely, unemployment can lead to negative consequences such as turning to crime, seeking illegal work, and an overall destructive of the human condition, especially when faced with horrible realities like unlivable conditions and starvation.

Where refugees and asylum seekers are not allowed to work, they should be entitled to welfare or governmental assistance during the time they are restricted from the labor market. This not only ensures that international and human rights are satisfied, but safeguards their individual survival and ability to maintain livable condition while they await approval of their application. In order to achieve this, host nations would have to change current legislation and practices and adopt policy that would allow for immediate access to the workplace.

After establishing what is required by international law and strongly suggest by human rights laws, it would seem that the issue of an immediate right to work for genuine asylum-seekers is not only necessary, but implied within our natural rights as human being.[98] There are strong and well-founded legal arguments for allowing asylum applicants immediate access to the labor market in their host countries, especially in countries where the asylum process is lengthy.            Being that it is extremely difficult for refugees to escape the danger of their country of origin and then to find work, it is important to challenge the present day barriers that prevent refugees from finding gainful employment. It is always much better policy to have a gainfully employed lower class, than an unemployed lower class desperate to survive. Making the transition from asylum-seeker to refugee is also a difficult and timely one in most countries, this is an issue that can only be overcome with protective legislation and a re-examining of the current policies and procedures in place.

 

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