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August 24, 2011

What Rights are Included in the Right to Work?

by Asylum Access

Asylum Access believes that refugees have the right to work. When we use this phrase, we are just going back to basics, centering our discussion on the four relevant rights outlined in the 1951 Refugee Convention:

  1. self-employment,
  2. wage-earning employment,
  3. access to liberal professions, and
  4. labor protections.

The right to work is a concept that appears repeatedly in international law, but it might surprise some that it also applies to refugees. In fact, during the drafting of the Refugee Convention itself, the US representative Louis Henkin said, “Without the right to work, all other rights were meaningless.”

Mr. Henkin’s sentiment is made explicit in the Convention: The 1951 Refugee Convention devotes all of Chapter III (articles 17, 18 &19) to the issue of “gainful employment” for refugeesnamely, wage-earning employment, self-employment, and access to liberal professions (professional jobs). Article 24 guarantees that national labor and employment protections apply to employed refugees as well.

The Convention sets forth clear standards:

  • Wage-earning employment

Refugees must be given “most favourable treatment accorded to nationals of a foreign country in the same circumstances,” and

Restrictive measures imposed on other aliens to protect the work force should not apply to refugees.

  • Self-employment and Access to liberal professions

States must treat refugees “as favorable as possible” or “no less favorable” than other aliens in the same situation.

The international document that further defines these rights is the International Covenant on Economic, Social, and Cultural Rights (ICESCR), which has been clarified by the Committee on Economic, Social, and Cultural Rights (CESCR) in General Comment no. 18. The ICESCR defines the right to work as the right of a person “to the opportunity to gain his living by work which he freely chooses or accepts.” Also helpful in understanding the right are the Michigan Guidelines on the Right to Work, drafted by the University of Michigan in 2009.

In the 2004 case Limbuela v. Secretary of State for the Home Department, the British House of Lords found that the combined denial of public assistance to asylum-seekers and prohibition on legal employment constituted inhuman or degrading treatment. Although the case was decided under European law, the ban on inhuman and degrading treatment is common to international human rights law and is binding on all states.

Thus, although countries have a right to regulate employment of foreigners in their country, there remains a legal and moral obligation to provide access to employment to refugees.

-Jessica Therkelsen, Global Policy Manager, Asylum Access

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