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

image

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

Asylum Detention Challenges

posted: 23/03/2010

The harsh treatment faced by detained women and children seeking asylum - including women and children with HIV - who are held at Yarl’s Wood will now be closely considered by both the High Court and the British Medical Association.
 

Three Human Rights Abused
"Lawyers have been granted permission to challenge the government's detention policy, which they claim amounts to "cruel, inhumane and degrading" treatment of women and children.

The High Court has given the go-ahead for a judicial review of the cases of four women held at the Yarl’s Wood detention centre after lawyers claimed their treatment breaches articles three, five and eight of the European convention on human rights. This comes very soon after many women have ended a 5 week hunger strike in protest at the conditions and their treatment.

Jim Duffy, a solicitor at Public Interest Lawyers, which is bringing the case, welcomed the decision. "The case confronts the policy and practice of the Home Office and the private company running Yarls Wood, Serco."
 

Three Yarl's Wood doctors investigated
Three doctors working at Yarl's Wood immigration detention centre are facing investigation by the General Medical Council, amid calls for healthcare at the centre to be transferred from the private sector to the NHS. Alistair Burt, Tory MP for North East Bedfordshire, (containing Yarl’s Wood) described healthcare as the weak link and that this weakness can only be ended by transferring healthcare to the NHS.
 

As he points out: "If there is an issue over fitness to travel and the decision is made by a contracted company inside Yarl's Wood, what chance is there of having confidence that it has not been influenced by the contract given to the contractors to get people out of the country?"

More details from Medical Justice 1 and Medical Justice 2 and Medical Justice 3
 
 

Hospital Detention for HIV

posted: 07/09/2009

How many people now remember that 24 years ago a Manchester gay man with HIV was locked up for 10 days in the  hospital by order of the city's Magistrates, just because he had AIDS?

It has never happened since in this country, but HIV lock-ups often happen in Sweden, and might even happen once again in this country, if Parliament allows the Department of Health and the Health Protection Agency to get their way.

The government is consulting on changing the infectious diseases regulations which could allow it to force people into hospital isolation wards and more, if they have infectious diseases. The deadline for comments on the proposed rules is at the end of this month.

We are campaigning to make sure people living with HIV cannot be touched by any updated public health law and regulations.

What happened almost 25 years ago in Manchester?
There is a very brief mention in our history page for 1985,  but it was an event that rocketed Manchester and HIV onto the front page of the papers locally and nationally. Manchester AIDS-line, which became George House Trust, was closely involved and (now Councillor) Paul Fairweather, a gay rights worker at the former Gay Centre in Bloom Street, was in the thick of the campaigning. There were pickets outside the Town Hall and the old Monsall Isolation Hospital, and a national demonstration was held here. We’ve never forgotten it, and at Secrets and Lives, Cllr Paul Fairweather reminded our audience about it.

Old files and papers

We've dusted off old files and the papers to find out exactly what happened and tell the story again here. We’ll be reminding the government that they didn’t get away with discriminating against people with HIV in 1985, and shouldn’t even be thinking of making laws and regulations that would allow this again today.

What was it like in 1985?
It’s a bygone age in UK HIV history. For a start no-one talked about HIV - if people ever talked about the virus, they called it HTLV3. There were no tests available at clinics for it in Manchester, only in London.

There were only two people known to have AIDS in the city, and both gay men were ill in Monsall Hospital. In the whole of the UK there were only 100 people, gay men and haemophiliacs, with AIDS at the start of 1985. Now there are over 70,000 with HIV.

We knew the virus was sexually transmitted but not how exactly - so oral sex was thought to be high risk, as well as anal and vaginal sex. The connection between the virus and AIDS wasn’t properly understood. Gay men were struggling to get to grips with the idea of using condoms.

Hysteria and Panic

It was at the height of AIDS hysteria, but the first public campaign - the tombstone and leaflet campaign warning Don’t Die of AIDS - didn’t start until the following year, 1986.

In the UK press, AIDS was in the headlines and caused alarm. In most newspapers such as the Sun and Manchester Evening News, and on radio stations (Piccadilly Radio - now Key 103 and Magic), the prejudice was obvious.

Haemophiliacs were "innocent victims," whereas gay men and injecting drug-users brought it upon themselves. Firemen banned the kiss of life, and holiday makers cut short cruises on the QE2 for fear of getting AIDS from a passenger. A 9-year old haemophiliac was allowed to go to school, but some parents kept kids away. Actor Rock Hudson died of AIDS in the first days of October. He was the first major public figure known to die of AIDS. Almost as much of a shock to most people was to discover such a butch film star was gay.

Swirling in a cesspit of our own making - Manchester Chief Constable

And the Chief Constable of Greater Manchester Police, James Anderton, preached that gay men were "swirling about in a human cesspit of their own making". Gay papers, like Capital Gay and Mancunian Gay, provided the most accurate news and information.
 

Can I go home please, just for the weekend?

One of the two men in Monsall Hospital decided in the middle of September 1985 that he wanted a weekend break from hospital, to go to his home in South Manchester, where he would be looked after by his friends and family, and then he’d go back in the hospital. He asked his doctor if he could do this one Saturday morning. The doctor refused. In fact the doctor couldn’t stop him leaving the hospital and knew this, but didn’t tell the man.

Whirlwind of events that Saturday

A whirlwind of events followed that Saturday. We don’t know why, but the doctor panicked. He called the Council’s medical officer and asked her to stop him leaving the hospital. She called the Chair of the Environmental Services Committee, who authorised the making of an emergency application to the Magistrates Court.

The City Solicitor was called in and a special sitting of the Magistrates was held. The Magistrates, in open court, granted an Order for 3 weeks detention in the hospital, named him and said it was to protect the public from AIDS.

The hostile local press and independent radio were tipped off and his name and the details were broadcast and published - including in the national press.

The man has no idea any of this is going on behind his back, until he was presented with the Court Order.

10 days detained by Court Order

He spent the next 10 days in compulsory detention at hospital before he and his friends could get a solicitor and the Crown Court could review the decision. No doubt the stress added to his health problems.

Outrage and Uproar

Meanwhile absolute uproar broke out in the city’s gay community. The Council had already promised to do what it could to dampen down AIDS hysteria. But here was the council using the courts in a way which just poured petrol on the flames of that hysteria. The Public Health (infectious Diseases) Act had been rushed through Parliament only in the summer of the year before (1984) and in February of 1985, AIDS was quickly added to the official list of infectious diseases. Now the Council was using that panic list and law to detain a gay man who posed no health threat to anyone.

There were demonstrations and pickets outside the hospital and Town Hall.

Crown Court frees man

The Crown Court decided to approve the application by the man's solicitor for the order to be withdrawn 'by consent.' The man was spared the rest of the 11 days of forcible detention.

Withdrawal ‘by consent’ means the Council didn't attempt to defend its application, and it could not have produced a shred of evidence to justify the man's continued detention, because legally it was indefensible - he was no health risk to anyone.

A city behaving badly - but then it promises: never again
The city’s gay men’s consultative committee demanded the city council promise never to use the law again, and to campaign for its repeal. The vote was tight, but it agreed not to use the law again.

All involved - hospital doctor, city health officer, chair of social services, city solicitor, magistrates clerk, magistrates, the radio and press, all behaved badly. They had no legal power to act as they did in the circumstances and all were swept up in the panic and power-rush of taking emergency action. Nobody stopped to think and ask questions. No-one told the man in Monsall. He had no solicitor to say the law doesn’t allow you to do this to me.

Why are we concerned now?
In Sweden a man with HIV was ordered to be detained and isolated under their public health laws for an incredible seven years. Detention and isolation happens to quite a number of people with HIV in Sweden. Fortunately the European Court of Human Rights said in 2005 that this is illegal and breaches people's human rights under Article 5.

They ruled that detention for HIV always has to be a last resort, after everything else has been tried and has failed to prevent the person from passing it on. We don't think that judgement goes far enough - after all the criminal law can be used against reckless sexual transmission of HIV and that's more than enough protection for public health. But at least the European Court has drawn a useful line in the sand to protect people with HIV from unreasonable detention on health grounds.

There are some infectious diseases that are passed on easily by day to day contact. If they are serious - for example multiple drug-resistant TB - then there is a case for using the law to prevent its spread and protect the public, but only if the person doesn’t agree to temporary isolation for treatment, until they are no longer a risk to others.

Why are Sexually Transmitted Infections even on the list of infectious diseases?

Sexually Transmitted Infections (STIs) are not public health hazards like drug-resistant TB. HIV and other sexually transmitted infections aren’t passed on by touching, sneezing and the like. People need to have sex with the person and even then the risk of HIV transmission is pretty low. We think there is no case at all for any STI to be included in public health powers in the 21st century in the UK.

HIV - we take action and we fight back

The government seems not to have learnt anything from Manchester's shameful behaviour in 1985 - you mess with people with HIV at your peril. We won’t stand for it again. We take action and we fight back. And we hope Manchester City Council will now do as it was asked 24 years ago and campaign to remove any possibility of this happening again under public health laws and regulations. 

Here’s a full transcript of the 1985 reports in Mancunian Gay - written by the campaigners in the thick of the action. You can see this for yourself, along with other papers in the local history collection, in Manchester central library, St Peter’s Square.

The European Court of Human Rights judgment Enhorn v Sweden 2005

A useful article on the Enhorn v Sweden and its application to UK Public Health law and the detention of people living with HIV 

[Medical Law Review 2006 14(1):132-143; doi:10.1093/medlaw/fwi038
© The Author [2005]. Published by Oxford University Press; all rights reserved.
The online version of this article is published under open access. Users are entitled to disseminate etc. this article for non-commercial purposes provided that: the original authorship is properly and fully attributed; the Journal and Oxford University Press are attributed as the original place of publication with the correct citation details given.]
 

Africa - Sterilising Women with HIV

posted: 23/06/2009

Some women in Africa are being sterilised without their consent after being told the procedure is a routine treatment for Aids, a lawsuit will claim.

Forty HIV-positive women in Namibia have been made infertile against their will, according to the International Community of Women Living with HIV/Aids (ICW). The group is preparing to sue the Namibian government over at least 15 cases.

Namibia, Democratic Republic of the Congo, Zambia, South Africa

Campaigners also report coerced sterilisation in the Democratic Republic of Congo, Zambia and South Africa, where according to one report a 14-year-old girl was told she could have an abortion only on condition that she agreed to sacrifice her reproductive rights.

The ICW has documented cases in Namibia where HIV-positive women minutes from giving birth were encouraged to sign consent forms to prevent them from having more children. Jennifer Gatsi-Mallet, its co-ordinator in the country, said: "They were in pain, they were told to sign, they didn't know what it was. They thought that it was part of their HIV treatment. None of them knew what sterilisation was, including those from urban areas, because it was never explained to them.

"After six weeks they went to the family planning centre for birth control pills and were told that it's not necessary: they're sterile. Most of them were very upset. When they went back to the hospital and asked, 'Why did you do this to us?' the answer was: 'You've got HIV'."

Discourages women from seeking HIV testing, treatment and care in pregnancy

Gatsi-Mallet said that some women were now afraid to go to hospital in case they are sterilised, and infertile women were often rejected by their husbands and communities: "In African culture, if you are not able to have children, you are ostracised. It's worse than having HIV."

African women aged between 20 and 34 have a higher prevalence of HIV than any other social group; in South Africa one in three is infected.

On average an HIV-positive mother has a one in four risk of transmitting the virus to her child. With the latest antiretroviral drugs, the probability can be cut to less than one in 50. But such medical interventions are underfunded and inaccessible to millions of women across the continent.

Namibian government policy?

The ICW accuses the Namibian government of encouraging state doctors to sterilise HIV-positive women as a means of preventing the spread of the virus. Its request to see the government's official guidelines has been refused. It hopes to bring 15 or more cases to court later this year.

A media report from Namibia last week highlighted the plight of Hilma Nendongo. A few weeks after giving birth, she was asked by a nurse: "Oh, did they tell you that you had been sterilised?"

Nendongo, 30, who is HIV-positive, suddenly remembered that hospital staff had told her to sign some papers as she entered the operating room for a caesarean section.

"It was a very big shock," she told Canada's Globe and Mail newspaper. "I was very emotional … I wanted a sister for my three boys, and now I can't have one."

South African court cases too

In South Africa, cases are being referred to the Women's Legal Centre with a view to a possible action. Promise Mthembu, a researcher at Witwatersrand University, said coerced sterilisations were happening in "very large areas" of the country.

Many patients were forced to undergo the operation as the only means of gaining access to medical services, Mthembu told the Mail & Guardian newspaper.

Source