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February 8, 2012

Emerging Scholars: a right to work analysis from a European perspective

by Asylum Access

Julien BLANC received his Masters in Human Rights Law from the Saint-Louis Faculties in Belgium, after graduating from the Institute of Political Sciences of Strasbourg in France.  During his time at the Saint-Louis Faculties, Mr. Blanc researched and authored a working paper The Right to Work of Claimants for International Protection, a Legal Toolboxwhich is discussed here. 

By Julien BLANC

In their domestic legislation, many States do not automatically grant permission to work when an individual lodges an application for international protection, such as a claim for asylum.  In practice, asylum seekers may wait years for an answer to their protection claim, while at the same time being denied access to employment.

As justification, States often point to their right to regulate foreign access to their domestic labor markets to also exclude refugees and asylum seekers.  States also refer to deterrent migratory concerns and a so called “pull factor theory” to deny the right to work to claimants at an early stage of their status determination process, during the whole process, and sometimes even after recognition of protected status.[1]

The right to work is nevertheless a universal human right that cannot be denied or restricted by states but for duly legitimate, democratic reasons.[2]  Furthermore, the denial or restriction of the right to work should be proportionate to the States’ goals and provide claimants with access to decent financial or material reception conditions.[3]

The United Nations Committee on Economic, Social and Cultural Rights, urges States to take all corrective measures to reduce the level of unemployment foreign nationals, immigrants and refugees.[4]  States have the obligation to respect, enforce, promote and protect the right to work of claimants for international protection.

In situations where a State chooses to restrict the right to work of asylum seekers and other claimants for international protection, a delicate balance should be made between the collective and individual rights of claimants for international protection and the legitimate concerns of States to control migration flows and access to their domestic labor market.

Scope and Content of the Right to Work:

Due to restrictive domestic provisions or interpretations of international and regional human rights law and standards by States, this vulnerable category of migrants has frequently suffered unduly prolonged periods of deprivation and forced destitution resulting from denial of their right to work.

Denial of access to the labor market has proved particularly detrimental when the State is unable to provide them with decent material or financial reception conditions, or when refugee status determination by the State is takes a long time.[5]

Domestic and regional courts or human rights monitoring bodies therefore play an important role in curtailing breaches of human dignity (sometimes amounting to inhuman and degrading treatments) resulting from the sometimes over restrictive limitations to the right to work of claimants for international protection.[6]

Universal, regional, and domestic human rights monitoring bodies have case law detailing the content of the various norms to recall states to their obligations to respect, protect, promote and implement the right of claimants for international protection to work.

This paper defines the content and scope of the right to work of claimants for international protection at universal, regional, and domestic levels, in the light of the existing normative framework and case law.  It also highlights some of the remaining legal ambiguities as to the legitimacy of the various restrictions set by states on the right to work of claimants for international protection.

Relevant Norms and Case Law:

This paper focuses on the following relevant sources for claimants for international protection and legal practitioners:

Regional and domestic case law provide concrete examples of how practitioners are invoking these norms and further delineating the content of those norms.

To access and download the full paper, click on: The Right to Work of Claimants for International Protection, a Legal Toolbox.

[1] See E.R. Thielemann, Does Policy Harmonisation Work? The EU’s Role in Regulating Migration Flows; see also S. Da Lomba, The Right to seek Refugee Status in the European Union, Ed. Intersentia, 228-30 (2004).

[2] See generally The Michigan Guidelines on the Right to Work, 31 Mich. J. Int’l L. 293 (Winter, 2010).

[5] J. Burnett & F. Chebe, Forced inactivity and barriers to participation among refused asylum seekers (Sept. 2009).  See also L. Doyle, I hate being idle, Wasted skills and enforced dependence among Zimbabweans asylum seekers in the UK (Jul. 2009); see also Waddington, Valuing skills and supporting Integration, NIACE, 34 (2005).


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