“Without the right to work, all other rights are meaningless.”
– Louis Henkin, U.S. delegate at the drafting of the 1951 Refugee Convention
Asylum Access defines its position on a refugee’s right to work according to international law.
The right is protected in numerous international and regional human rights instruments; and as noted in General Comment No. 18 it, “is essential for realizing other human rights and forms an inseparable and inherent part of human dignity.”
When we use the phrase, “right to work” we are referring to the four relevant rights outlined in the 1951 Refugee Convention:
- Wage-earning Employment;
- Access to Liberal Professions; and
- Labor Protections.
All of Chapter III (articles 17, 18 & 19) of the Refugee Convention is devoted to the issue of “gainful employment” for refugees, and Chapter IV (article 24) of the Convention guarantees refugees protections within that employment . The Convention sets forth clear standards in this regard:
Article 17 protects a refugee’s right to wage-earning employment. It contains two sections:
Article 17(1) provides that refugees who are “ lawfully staying” (i.e. if a refugee has had their status recognized) must be given “most favorable treatment according to nationals of a foreign country in the same circumstances” to engage in wage-earning employment. This means that refugees who have had their refugee status recognized must be afforded the same wage- earning employment opportunities as that offered to the most preferred class of foreigner.
Article 17(2) provides that if a refugee: i.) has resided within the country of refuge for three years; ii.) has a spouse who is a national of the country of refuge; or iii.) has one or more children who are nationals of the country of refuge, then restrictions on a refugee’s right to work will not apply and the state must afford that refuge the same rights to employment as any other citizen. This means that if any of the above conditions have been met, a refugee shall be exempt from employment restrictions for aliens and shall receive the same employment rights as that of citizens.
Article 18 protects a refugees right to self-employment, including a wide range of entrepreneurial activities such as starting a new business.
The right applies to any refugee “lawfully in their territory” which means it applies to refugees who have only a temporary status (i.e. asylum seekers with pending cases), and it requires that states must treat refugees “as favorable as possible” or “no less favorable” than other aliens in the same position with regard to a refugee’s right to engage in self-employment.
Article 24 guarantees that national labor and employment protections apply to employed refugees.
The right to work is also dealt with comprehensively in Part III (articles 6 & 7 most notably) of International Covenant on Economic, Social and Cultural Rights (ICESCR), and defines the right to include, “the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts.” (article 6). The protection of the right is expanded upon in Article 7 of the Covenant, which recognizes “the right of everyone to the enjoyment of just and favorable conditions of work”, including fair remuneration and safe and healthy working conditions.
The Committee on Economic, Social and Cultural Rights (CESCR) has clarified the scope of Articles 6 and & 7 of the Covenant in its General Comment No. 18 and, like other human rights, imposes three levels of obligations upon states, namely that the States must a.) respect; b.) protect and c.) fulfill this right. This means:
Respect the Right to Work:
States must refrain from directly or indirectly interfering with the enjoyment of the right. Thus, they may not undertake laws, policies or actions that contravene a refugee’s right to work.
Protect the Right to Work:
States must protect the right by taking all necessary measures to ensure third parties, such as corporations, do not interfere with the right. Violations will therefore include a State’s failure to, “regulate the activities of individuals, groups or corporations so as to prevent them from violating the right to work of others.”
Fulfill the Right to Work:
States must take all necessary steps to ensure the realization of the right to work. This means they must provide, facilitate and promote the right by adopting appropriate legislative, administrative, budgetary, judicial and other measures to ensure the right is realized.