Job restrictions for asylum seekers?

posted: 30/07/2010

UPDATED 23 August

New Immigration Rules following the Supreme Court's decision will begin on 9 September and updated guidance has been produced by the UKBA

After the Supreme Court decision we reported yesterday allowing some 'legacy case' asylum seekers to apply for permissiion to work, Home Office ministers are now trying to limit the jobs these 45,000 asylum seekers could take.

The immigration minister, Damian Green, wants to stop asylum seekers from taking most jobs and restrict them to types of work where the government has said there are official shortages.

Home Office officials are investigating the possibility of telling asylum seekers they can apply only for vacancies among 400,000 skilled jobs in shortage occupations – a tiny fraction of almost 30 million jobs in the UK economy.
 

Some teaching, engineering, welding, dancing jobs only
Asylum seekers would have to be qualified maths teachers, chemical engineers, high-integrity pipe welders, experienced orchestral musicians, or ballet dancers or have other unusual skills to have any hope of being given permission to work. The jobs are the same as the types of jobs open to migrants from outside Europe wanting to work in the UK under the new points-based immigration system.
 

This week's supreme court ruling said refused asylum seekers who made a second fresh claim for refugee status should be allowed to work if they had waited more than 12 months for a UKBA decision.
 

The Supreme Court ruling applies a EU directive which set minimum standards for how asylum seekers are treated throughout Europe, so asylum seekers are treated with basic dignity. The Supreme Court rejected the home secretary's case that this group of asylum seekers should not have this protection because their first application had been rejected.
 

10 years of 'right to work' campaigning
Refugee welfare groups have been fighting for more than 10 years to lift the ban on asylum seekers being allowed to work in Britain while their applications are decided. This is the first time the courts have backed the principle.
 

Immigration barristers say the ruling will mean that tens of thousands of failed asylum seekers whose fresh applications are grinding their way through the system will be entitled to basic rights, including the right to work. The court said any problem with undeserving cases should be dealt with by deciding them quickly rather than by punishing them by depriving them of their fundamental rights.
 

45,000 of the ‘legacy cases’
The Home Office says that up to 45,000 refused asylum seekers are likely to be affected by the ruling. Many of them are among the 450,000 "legacy cases", some dating back more than 10 years, which the Home Office is working through in a backlog exercise.
Immigration minister Green confirmed his intention to severely restrict the jobs open to asylum seekers who have waited more than a year for a decision. He said: "I believe it is important to maintain a distinction between economic migration and asylum – giving failed asylum seekers access to the labour market undermines this principle." He claimed the ruling would have only a short-term effect as "the long delays in the asylum system will be resolved by the summer of next year when all the older asylum cases are concluded".
 

Disbelief at plan to clear 450,000 backlog within 12 months
It is hard to see how all these legacy cases can possibly be decided by next summer. The private company Serco has just lost its £15m contract with the UK Border Agency (UKBA) which was to help clear the huge backlog in legacy asylum claims, amid allegations that the system is in complete chaos.

Serco was given the contract last year to speed up clerical work and help caseworkers clear the backlog of 450,000 asylum cases. Many of the cases date from the mid-1990s. The plan was that with Serco's help the entire backlog would be dealt with by 2012. But complaints started to come in almost immediately that Serco’s work was slowing the system down. According to one insider, there were too many inaccuracies and omissions by Serco.

UKBA staff have now been told that the work is to be returned to UKBA civil servants. So far, it seems, only about 200,000 legacy cases have been dealt with and the system remains in chaos. At the same time as the announcement that the work is being taken back by UKBA, a leaked memo from the coalition government reveals plans to axe 7,000 UK Border Agency jobs - 1,700 this financial year. How the UKBA will be able to deal with new asylum cases, not to mention the scandalous backlog, with a third fewer staff, remains to be seen.
 

Home Office job restrictions plan ‘disappointing’
Jonathan Ellis, director of policy and development at the Refugee Council, said the Home Office's response to the ruling was "disappointing". "The supreme court ruled that this group of asylum seekers has the right to work under EU law – the government should not then limit this right down to a small number of asylum seekers who meet the requirements for national shortage occupations."
 

"The shortage occupation list is not designed for asylum seekers but rather economic migrants needing sponsorship to come to the UK. Asylum seekers who have waited so long for a decision should be allowed to work for local employers whenever their skills are needed."
 

Source
with additional material about Serco from Private Eye 1267, 23rd July – 5th August 2010

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More Asylum Seekers Can Work

posted: 29/07/2010

UPDATED 23 August

New Immigration Rules following the Supreme Court's decision will begin on 9 September and updated guidance has been produced by the UKBA

People who have been waiting for a decision on their asylum claim for more than one year now have the legal right to work, even when they have made a fresh claim. People applying for asylum are not normally allowed to work. If people seeking asylum are still waiting for the first decision on their claim for 12 months or more, then they can ask for permission to work. Few people wait this long for the first decision on asylum claims so this rule does not help many people to work.

But yesterday the Supreme Court opened the door to many more people. It ruled that people who have made a fresh claim for asylum have the same right, if they have waited 12 months or more in total for a decision on their first and a later fresh claim.
 

Campaign Success

This is excellent news for many asylum seekers with HIV and other asylum seekers who do not want to be dependant on the state, but who are keen to work and use their skills to support themselves and their families.George House Trust has supported the national campaign for the right to work and welcomes the decision of the Supreme Court.
 

The Supreme Court was politely but firmly dismissive and critical of the Home Secretary’s weak case. The previous Secretary of State Alan Johnson, decided to appeal against the Court of Appeal’s ruling in April last year which first allowed the right to work.

In a landmark ruling, the Supreme Court has now recognised that people who have submitted new evidence to support their claim for asylum (a 'fresh claim'), and who have waited longer than 12 months for a Home Office decision on their initial claim, should be given permission to work.
 

Thanks to EU

This is because they are included within the EU ‘Reception Directive’ from the time their application first application was sent in. The Reception Directive says that an asylum seeker can apply for permission to work if they have not had a decision on their claim from the Home Office after 12 months.
 

The Supreme Court dismissed the Secretary of State’s arguments that a fresh application for asylum does not fall within the EU's Reception Directive. The Court said it didn’t accept that this would lead to a rush of unmerited fresh applications being made, and that anyway denying people their right to work was not the proper way to prevent that happening.
 

Welcome for judgement

Jonathan Ellis, Chief Executive of the Refugee Council said:
“We welcome the Supreme Court’s decision to accept that an asylum seeker who has submitted a fresh claim for asylum should be given permission to work after they have waited twelve months for a decision on their claim. The appeal by the former Secretary of State against the Court of Appeal’s decision that this person should be allowed to work, has wasted valuable time and resources at time when asylum seekers should have been supported to get on with their lives rather than face destitution.
 

“The vast majority of asylum seekers who come to the UK would rather support themselves through work than be forced to be homeless or to rely on Government support. Denying asylum seekers the chance to work means they cannot contribute to the UK economy and condemns asylum seekers and their families to abject poverty. We would urge the government to ensure those who have submitted fresh claims for asylum will now be granted support and permission to work under this ruling immediately.”
 

Get advice first before working

People who think they now have the right to work should seek advice from their immigration adviser about applying for permission to work. People are not allowed to simply start working.

Source
Press summary of Judgment - produced by the Supreme Court 
 

The full Supreme Court judgment is not yet available on the court's website - search here later for [2010] UKSC 36  
 

Court entrance image credit Shark Attacks - Creative Commons licence

'Fit Notes', Not Sick Notes

posted: 29/05/2009

‘Fit Notes’ will replace Sick Notes from spring 2010. This follows Dame Carol Black’s recommendations on the health of people of working age last year, so the government have announced that GP’s will soon be issuing ‘fit notes’ instead of sick notes.

These new ‘fit notes’ will be given out to people from spring next year. In the words of the Department for Work and Pensions press release, they will:

“….enable people to get the best possible advice about staying in work, and if they can't work, what their employer can do to help them return to work sooner. For example, if the employee has a problem with mobility, suggesting a job where they can work sitting down rather than standing up.”

You can have your say - a 12 week consultation on the Fit Note’s design started yesterday and will end in mid August.

The consultation document is called Reforming the Medical Statement

Having Your Say

Comments on any aspect of the draft regulations to:
Shelley Fuller,  Medical Statement Consultation, Department for Work and Pensions,
Health, Work and Well-being Directorate
2nd Floor, Caxton House, Tothill Street, London, SW1H 9DA
020 7449 5586
Email

HIV impact?

The new 'fit notes' are intended to help more people stay in work, rather than drift into long term sickness. This could help people with HIV who are working, by giving people with HIV written medical backing to get the employer to make 'reasonable adjustments' to your working arrangements.

They propose that the doctor should tick boxes next to a short list of basic adjustments. These are

• a phased return to work
• altered hours
• amended duties
• workplace adaptations, and
• the consultation asks whether occupational health assesssments should be added
• we  ask whether there should be a box for the doctor to add any other suggestions.

GP telling employers about HIV is a risk

From a first look at the proposals we have a major concern. The rules (rule 6) and proposed Fit Note itself require doctors to name the condition as precisely as possible that  makes the person fit or unfit for work. This means naming HIV.

There is a special exception rule (rule 9) that allows the doctor to state less precisely the condition in cases where disclosure of the precise condition would influence the patient’s well-being or the patient’s position with their employer.

George House Trust thinks this needs to be made a requirement for GPs and it should spell this out and name HIV as an example in Guidance to GPs and on the Fit Note form itself.

Government comments on Fit Notes

Lord Bill McKenzie, Work and Pensions Minister, said:

"Employers tell us that managing sickness absence can be a challenge. This is compounded by a 'sick note' system that makes sickness absence a black and white issue - either you are unfit for work, or you are not. We recognise how important it is to help people who are sick to stay in work or get back to work quickly - the new fit note will help do just that."

Health Minister Ben Bradshaw said:

"We know that sickness absence is economically and socially damaging and makes people more likely to drift into social exclusion and poverty. Getting people back into work quicker is good for their health as well as the country's finances. The fit note will give GPs a new opportunity to benefit their patients and I look forward to it being used in surgeries everywhere."

Developed with the support of healthcare professionals, employer representatives and trade unions, the new 'fit notes' will roll-out across Great Britain in the Spring of 2010.

The new 'fit notes' will be computer-generated in GPs surgeries, replacing the neatly hand-written - or possibly illegibly scrawled - doctor's sick notes.

The full Government response to Dame Carol Black's report.

Employment lawyer's view

Morag Hutchison, at employment law firm Pinsent Masons, said that the new scheme is likely to benefit both employers and their staff. 

“The current system causes problems for employers because there is no consideration of whether the employee is fit to perform some duties of their role even if they are unable to perform all the duties of their role,” she said. “If GPs are asked to give an indication of what an employee can do, that will enable the employer to consider whether their role can be adapted so they can return to work sooner than might otherwise by the case.”

Hutchison said that employees who are signed-off work can become detached from the workplace, particularly in cases of stress, making it harder for them to return to work.

“If a GP gives an indication of the tasks the employee could perform, that would help the employer to get them back to work sooner and is more likely to result in a positive outcome for both the employer and the employee,” she said.

The current system can cause problems for employees too, according to Hutchison.

“The issue of redundancy selection criteria is of particular relevance in the current climate,” she said. “Employers often use absence records as a selection criteria for redundancy. Under the proposed system an employee's absence record is likely to be reduced as they may be able to attend for work albeit it to perform a reduced role.”

Many employees are not entitled to any sick pay over and above their statutory sick pay entitlement which can result in them losing a significant proportion of their income if they are off sick. “Again, under the new system, there may be occasions when they are able to attend for work to carry out a reduced role whereas under the current system they would just have been signed off,” said Hutchison.

GPs are expected to have to spend more time with individuals to establish what parts of their job they are fit to perform, but Hutchison expects employers and employees to welcome the plans.

“The introduction of ‘fit notes’ would, on the face of it, appear to be a positive move for both employers and employees,” she said.

Reforming the Medical Statement consultation

Hospital Pays for Refusing Treatment

posted: 29/04/2009

An NHS trust in Northern Ireland admitted that it was wrong to refuse a person with HIV medical treatment, has apologised, and paid £4000 compensation.

The man was refused an endoscopy by staff at Craigavon hospital, Portadown.

An endoscopy is a way of looking inside your body with a thin, long, flexible tube containing a tiny light and video camera. The doctor can explore and see what is going on inside you on a TV screen. The Southern Health Trust admitted they refused the endoscopy only because the man has HIV.

He complained of disability discrimination – it is illegal to discriminate against people with HIV from the moment of their diagnosis in health care, employment, education, and the delivery of good and services. His formal complaint was supported by the Equality Commission of Northern Ireland.

No risk
Normal infection control procedures are sufficient to prevent the transmission of HIV to healthcare staff or other patients from endoscopies or other medical procedures.

Southern Health Trust settled the civil court case saying that the behaviour of staff at Craigavon Area Hospital had been “entirely inappropriate.”

A spokesperson for the Equality Commission said the Disability Discrimination Act “was designed to break down barriers to stigma, and fear that prevent people with HIV from accessing services…we are pleased the Southern Health and Social Care Trust has recognised this and agreed to liaise with the Equality Commission to review its practices and procedures and ensure that they are effective and conform to the law.”

Four months wait for second best
Refusal to perform the endoscopy meant he had to wait four months to have an alternative procedure. “The denial of this procedure, and the length of time involved in my treatment, created a great deal of anxiety and distress”, he said. He added “the hospital has confirmed to me that they have the facilities and appropriate procedures in place to perform the endoscopy on patients with HIV and I believe that they should have followed those procedures in my case and respected my dignity as a patient in their care. Thankfully my treatment has now been completed but I wouldn't want other HIV patients to go through a similar experience."

Apology and compensation

The Trust apologised to him for the injury to his feelings and distress experienced by him as a result as it settled his claim in the county court for £4000. It also agreed to undertake a review of its policies which might affect services for people living with HIV.
 

Stigma
"We have accepted that [he] should have received his treatment without delay and have apologised to him for not providing the high standard of care that every patient has a right to expect," said the spokesperson. "The trust is committed to treating all patients who need our help, and we have an excellent record in improving access to our services for patients with a range of disabilities."
 

Equality Commission casework director Anne McKernan said people with HIV were given clear protection from discrimination under changes introduced in 2007. "This change to the law was designed to break down the barriers of stigma, and fear which have prevented people with HIV from accessing many services, such as housing, education or, as in [his] case, appropriate medical services," Ms McKernan said.
 

"We are pleased the Southern Health and Social Care Trust has recognised this and agreed to liaise with the Equality Commission to review its practices and procedures and ensure they are effective and conform with the law."
 

George House Trust comment
The NHS collects the largest number of complaints about HIV stigma and discrimination – it’s a very big organisation and everyone diagnosed has regular dealings with the NHS. The complaints are not about HIV clinics or STI clinics (or very rarely), but about dentists, GPs and other parts of hospitals – like in this case where an endoscopy was refused.

This case shows it can pay to complain. The hospital has had a major wake up call and has to review its policy and practice with the Equalities Commission. We hope this will now means that HIV+ people using this hospital are always treated respectfully and fairly in future.

The man who complained needs applauding. £4000 is not a great deal, but he got the apology he was after, and some reassurance that they won’t stigmatise and discriminate against other people living with HIV in the district.

We believe the hospital staff need better HIV awareness and training. This is not on the list of things the Equalities Commission will now be checking with the Trust. They'll be checking the policies and this does need doing, but what the incident really reveals is the attitudes and knowledege of ordinary nursing and other clinical staff that really needs attention. It wasn't the hospital's formal policy to refuse the endoscopy, it was a member of staff behaving unprofessionally and the wider clinical team's failure to challenge that refusal of necessary treatment and care.

Source - aidsmap

Source - BBC

Photo - David Morley architects