Job restrictions for asylum seekers?

posted: 30/07/2010

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

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

Court Rules on Treatment for Migrants

posted: 14/04/2009

Almost a year after the High Court said most migrants are entitled to free NHS hosptal treatment, the Appeal Court has now rejected that ruling. The long running struggle to ensure people living with HIV in this country always have free treatment will continue.

Although the Appeal Court ruling says there is no legal right to treatment, they did rule that the Department of Health Guidelines are unlawful.

Almost a year ago the High Court ruled that most migrants were "ordinarily resident" even if their asylum claim was refused. About a year before that the application was made to the High Court after a NHS hospital refused free treatment to a migrant. The Courts are very slow because there aren't enough courts and judges to deal with this type of case - a 'judicial review.'

Appeal Court rules

On the 30 March 2009 the Court of Appeal decided that the Department of Health's own guidance restricting access to healthcare for migrants is unlawful.

Solicitors brought a test case for the HIV and migrants organisations on behalf of a Palestinian former asylum seeker who is unable to return home and could not pay for treatment.

He was given the treatment he needed after the solicitors applied to court but the case went ahead anyway as a test case and to challenge to the government’s guidance.

At the High Court a year ago Mr Justice Mitting decided that refused asylum seekers could get free NHS treatment. His ruling was that migrants, including refused asylum seekers, are just as 'ordinarily resident' as any British person, and this entitles people to free NHS treatment.

Not lawfully resident

The Department of Health then appealed and now the Court of Appeal has overturned the High Court decision. The Court of Appeal rejected the High Court's approach, finding that refused asylum-seekers could not be lawfully resident in the UK. Anyone not lawfully resident cannot be ordinarily resident, and that means no right to free treatment.

However, the Court also decided that the guidance is unlawful because it fails to explain what hospital’s should do if a patient cannot pay for treatment and cannot return home immediately.

The solicitors are considering whether to appeal to the House of Lords or not, and would need the House of Lords permission to make an appeal. 

In the meantime there is likely to be confusion about how to apply the judgement and the new guidance. The Department of Health has wasted no time in telling NHS Trusts to follow the Appeal Court's ruling.

Reactions to ruling

Solicitor Adam Hundt of Pierce Glynn, who took the case commented:

“The Dept. of Health guidance said that hospitals should not provide treatment unless patients paid for it in advance, but this ignores the fact that many of these patients, like A, are destitute, and many cannot return home, so they are not treated until they require life-saving treatment. In my experience, sadly, by that time it is often too late, and that treatment is usually far more expensive, so the current rules don’t make clinical, economic or humanitarian sense, and I am glad that the Court has recognised this. I hope that the Dept of Health will now make it clear to hospitals that they must treat patients who cannot pay and cannot return home for the time being - and not just wait until they are at death’s door.” 
 

The decision disappointed refugee and health welfare groups. Donna Covey, of the Refugee Council, said she was concerned that the charging regime for failed asylum seekers was still in place. She said those people who were unable to go home straight away often ended up destitute and homeless. "To refuse treatment to them simply because they cannot pay for it is appalling and inhumane," she said.

Deborah Jack, of the National Aids Trust, said anxiety over medical bills would deter many people from seeking the care they needed. She said the government should use its review of healthcare charges to end its policy of ill-health for the most destitute.

Department of health advice letter

The Department of Health has issued a letter to NHS trusts before the new Guidance is published in the autumn.

The letter says 

• Trusts shouldn't charge people treated free as 'ordinarily resident' for the period of time between the two court rulings
• people already on treatment are entitled to have it continued for free
• Trusts must always provide any immediately necessary treatment, including all maternity treatment. It's a matter for clinical judgement if care is 'immediately necessary.' HIV care could fall within this - especially if there is symptomatic illness, or CD4 count is low.
• Trusts must provide urgent treatment (which is treatment that isn't immediately necessary but which can't wait until the person can be reasonably be expected to return to their home country). This is likely to include HIV care under BHIVA treatment guidelines. It is a matter of clinical judgement whether the care is 'urgent'.
• Treatment should not be delayed or cancelled if the person can't pay for urgent or immediately necessary treatment.
• Trusts have the option to write off debts where it proves impossible to recover them, or where it would be futile to begin pursuing them, for instance when the person is known to be without funds (our emphasis - this will apply to most migrants with HIV).
• even non-urgent routine elective treatment can be provided depending on how long the person is likely to remain in this country - eg if the return home is not likely to be within a 'medically acceptable time.'
• immediately necessary, urgent and non-urgent treatment will require Trusts to assess when a patient is likely to return home based on "their plans, intentions or ability to do so."
• Trusts must not charge anyone identified as actual or suspected victims of human trafficking by either the UK Border Agency, or the UK Human Trafficking Centre. This is nothing to do with the Appeal Court, but because the European Convention on human trafficking came into force on 1 April.
• can't now bill the person's local Primary Care Trust for treating any people who are "chargeable."

The Department of Health letter says they will update the Guidelines, as required by the Court, in the autumn. HIV and migrants organisations will be pressing for a practical, humane approach.

People living with HIV in NW England who have problems with treatment charging for hospital care should always contact our services team.

The Appeal Court's ruling

Discrimination Protection for Partners

posted: 28/11/2008

Help push for the 2009 Equality Bill to protect partners, family and friends of people living with HIV from discrimination.

Over the last few years the laws protecting people living with HIV from prejudice and discrimination have greatly improved. However, a small loophole in current legislation means that the friends, family and carers of those same people can be discriminated against because others believe they might have HIV. In July the European Court of Justice made a landmark ruling that it is unlawful to discriminate against someone because they care for or associate with someone with a disability.

This effectively means that friends, family, partners and carers of people living with HIV are now protected from harassment and discrimination on the grounds of their loved-one's HIV status.

The Equality Bill which come before parliament in 2009 will need to properly recognise the ruling and its principles by including provisions to prevent "associative discrimination" in the Equality Bill when it comes before Parliament next year.

More details here

You can help push for this change by contacting your MP through Terrence Higgins Trust - very quick and easy to do here