They’re not ‘economic migrants’ – why refugees and asylum-seekers have the right to work
By Penelope Mathew
Professor Penelope Mathew is the Freilich Foundation professor at the Australian National University. Prior to this role, Professor Mathew was a visiting professor and the Director of the Program in Refugee and Asylum Law at the University of Michigan Law School.
In many countries, the bona fides of refugees and asylum-seekers is questioned. It is asserted that the narrow exception to states’ powers over immigration established by the 1951 Convention relating to the Status of Refugees (‘Refugee Convention’) is abused by persons seeking economic advancement. Some believe that refugees and asylum-seekers are taking something that does not belong to them; that they are getting special treatment; and that citizens are the losers as a result.
Two examples of contributions to public debate during the lead-up to the Australian federal election in 2010 illustrate this point. Julia Gillard, the leader of the Australian Labor Party (‘ALP’), which won government after a knife-edge election, announced that the ALP would return to offshore ‘processing’ of asylum claims, saying that it was important that people should not get an ‘inside track’. She pointed to her own immigrant parents’ deep dislike of such special treatment, given their hard work to make a life in Australia. Meanwhile, Pauline Hanson, the former leader of the anti-immigration political party ‘One Nation’ made the unsubstantiated claim that asylum-seekers received preferential medical treatment.
This sense that entitlements are wrongly claimed by outsiders (indeed, usurpers or imposters), has led to many restrictive state practices regarding the right to work for refugees and asylum-seekers. The result is that some who have fled their countries as refugees are made homeless a second time. In the seminal UK House of Lords’ decision in the Limbuela case, three asylum-seekers, two of whom were eventually accepted as refugees, were left destitute as a result of the UK’s policies limiting both the right to work and access to welfare.
Refugees and asylum-seekers do indeed have special claims on us, although they are claims that are universal in the sense that were we ever to be the unlucky refugee, we too would be entitled to assert these claims against a foreign country. Refugees are both different to most foreign residents and visitors, and just like the majority of us in that refugee status is simply a device to recognize their effective loss of citizenship elsewhere, an attempt to protect their common humanity. We have recognized this ever since the world turned its back on Jews fleeing the Holocaust. ‘Never again’, it was said, because in the words of the committee responsible for writing much of the Refugee Convention,
[t]he turning back of a refugee to the frontiers of a country where his life or freedom would be threatened on account of his race, religion, nationality or political opinion would be tantamount to delivering him into the hands of his persecutors.
The intriguing question is what drives the unwillingness to recognize what necessarily follows from the particular entitlements of refugees. Survival cannot be guaranteed solely by the refusal to return refugees. Like the rest of us, they must be able to support themselves.
Insecurity on the part of citizens, particularly those who feel themselves to be in a precarious position in their own societies, may result in a general fear of migration which extends to scepticism about those who seek protection as refugees. As Stephen Castles and Mark Miller have explained,
Immigration often takes place at the same time as economic restructuring and far-reaching social change. People whose conditions of life are already changing in an unpredictable way often see the newcomers as the cause of insecurity. One of the dominant images today is that of masses of people flowing in from the poor South and the turbulent East, taking away jobs, pushing up housing prices and overloading social services. Similarly, in immigration countries of the South, such as Malaysia and South Africa, immigrants are blamed for crime, disease and unemployment. Extreme-right parties have grown and flourished through anti-immigrant campaigns.
The Scanlon Foundation in Australia has conducted a survey showing that it is more likely that persons who are over 65 years of age, or without university qualifications, or who describe themselves as poor or struggling to pay bills, will hold negative views about immigration.
Part of the answer therefore lies in the fulfilment of the right to work for all citizens – a fundamental claim, vital to survival and dignity, which is recognized in over one hundred national constitutions: a claim that has led young people from Spain, Tunisia and the United States among other countries to protest in the streets. It also requires governments to acknowledge the evidence which supports the economic and other benefits of migration, including the contributions of refugees and other humanitarian entrants. Importantly, it is not only the developed world which benefits from migration. There is also evidence that developing states benefit from the presence of migrants as well as the presence of their own nationals as migrants in other countries – through remittances, for example.
Reworking the way in which the relationship between the two imperatives of asylum and employment is conceived might allow us to see more clearly the compelling legal case for refugees and asylum-seekers’ access to the labour market. The Michigan Guidelines on the Right to Work, adopted by a group of experts, including myself, made this legal case, and hopefully the Guidelines are persuasive. I argue the case at greater length, putting the legal arguments into their social context, in a forthcoming book entitled Reworking the Relationship between Asylum and Employment.
The legal case begins, naturally, with the Refugee Convention. The Refugee Convention contains a number of significant provisions protecting the right to work. It was recognized by the US delegate of the committee which developed the initial text of the Convention, that ‘without the right to work, all other rights were meaningless.’
Many of the rights in the Refugee Convention are not absolute, however. The right to engage in wage-earning employment is extended only to refugees ‘lawfully staying’ in their country of refuge, and they are not guaranteed the same rights as nationals, but rather the most favourable treatment guaranteed to other foreigners. While this provision is capable of being interpreted broadly, and the experts who worked on the Michigan Guidelines on the Right to Work agreed on a generous interpretation, there are some gaps in coverage. For example, although Professor Jim Hathaway has argued persuasively that asylum-seekers are lawfully present in their countries of refuge, they may not be regarded as lawfully ‘staying’, since their sojourn in the country of refuge may be terminated with a negative assessment of their claims to refugee status.
Consequently, it is important to consider other instruments which expressly protect the right to work, including Article 6 of the International Covenant on Economic, Social and Cultural Rights and regional human rights treaties, as well as guarantees of equality, human dignity, privacy and other rights that support the right to work. There is in fact an impressive array of universal and regional treaties which expressly protect the right to work and when the special position of refugees and asylum-seekers is considered – namely that they cannot return to their home countries and must not be forced to do so – it is difficult to argue that it is legal to deny them employment in their countries of refuge. Moreover, governments are bound to do more than simply lift barriers to participation in employment. They must do what they can to support the right of these vulnerable foreigners to work, through recognition of foreign qualifications, employment offices, funding for relevant non-governmental organizations, and so on.
It has also been recognized in some important decisions, including the Limbuela case and the European Court of Human Rights’ decision in M.S.S. v Belgium and Greece, that denial of work and adequate social support may amount to inhuman and/or degrading treatment. This is particularly significant because the cardinal norm of human rights law prohibiting torture and related forms of ill-treatment is customary international law and jus cogens, binding on all countries, regardless of whether they have become party to relevant human rights treaties, and absolute.
Given the strength of the legal case concerning the right to work for refugees and asylum-seekers, all that remains is that we have the courage to implement it. Perhaps we may find the necessary courage if we acknowledge that in so doing we help, rather than hurt ourselves; and that to do otherwise is to behave almost as badly as the persecutory regimes from which refugees have fled. We might even begin to question why citizenship of a particular country – a lucky break that depends on place of birth, rather than merit – entitles us to exclude anyone who wishes to join us, whether they flee persecution, human rights violations, war, natural disasters or economic collapse and their very survival is at stake, or they want, for lack of a more expressive and less enigmatic phrase, ‘a better life’.
 Julia Gillard, ‘Respecting Fears, moving forward with the facts’ speech to the Lowy Institute (6 July 2010) <http://www.smh.com.au/opinion/politics/respecting-fears-moving-forward-with-the-facts-20100706-zyce.html> accessed 17 January 2012.
 R (Adam, Limbuela and Tesema v Secretary of State for the Home Department  UKHL 66,  1 AC 396.
 There are 148 countries which are party to the Refugee Convention, or its 1967 Protocol, or both, and it is widely accepted that the prohibition on refoulement is customary international law, binding even countries that are not party to these two treaties.
 Report of the Ad Hoc Committee on Statelessness and Related Problems (Lake Success, New York, 16 January to 16 February 1950) UN Doc E/1618; UN Doc E/AC.35/5.
 Stephen Castles and Mark J Miller, The Age of Migration (3rd edn Palgrave-Macmillan and Guilford Books, Basingstoke and New York 2003) 15.
 Andrew Markus, Mapping Social Cohesion: the Scanlon Foundation surveys summary report (2010) 22.
 For the argument that global migration is an overall good in economic terms, see Timothy J Hatton and Jeffrey G Williamson, Global Migration and the World Economy: Two Centuries of Policy and Performance (MIT Press, Boston 2005).
 See Graeme Hugo, Economic, Social and Civic Contributions of First and Second Generation Humanitarian Entrants Final report to Department of Immigration and Citizenship (2011).
 See for example, Karen Jacobsen, The Economic Life of Refugees (Kumarian Press, Bloomfield CT 2005) 44.
 Michigan Guidelines on the Right to Work, 31 Michigan Journal of International Law 289 (2010).
 Penelope Mathew, Reworking the Relationship between Asylum and Employment (Routledge, forthcoming 2012).
 Statement of Mr Henkin of the United States, Ad Hoc Committee on Refugees and Stateless Persons, Summary Record of the Thirty-Seventh meeting (Lake Success, New York, 16 January to 16 February 1950) (16 August 1950) UN Doc E/AC.32/SR.37, 12.
 James C Hathaway, The Rights of Refugees under International Law (CUP, Cambridge 2005) 177—83.
 Michigan Guidelines (n 11 above) .
 M.S.S. v Belgium and Greece [GC] (App No. 3096/09) ECHR 21 January 2011.
 Peter Mares, Borderline: Australia’s Treatment of Refugees and Asylum-seekers (UNSW Press, Sydney 2001) 201—2.
 See Joseph Carens, ‘Aliens and Citizens: the Case for Open Borders’ in W Kymlicka, The Rights of Minority Cultures (OUP, Oxford 1995) 331.