Permission To Work?

Part I

There are thousands of foreign nationals in the United Kingdom anxious to take employment if given the opportunity to work, and many employers would welcome the skills and work ethic that they can bring to the workplace. This issue has recently been explored in the BBC programme 'The Day the Immigrants left', which has excited much comment for suggesting that there are many low-skilled jobs in the UK that will locals will simply refuse to take, even if the alternative is unemployment. Employers are generally familiar, at least in outline, with the requirements of the Immigration Rules that apply to those that come to the United Kingdom to seek permission to work. In this series of articles we explore the position of those who may have the right to work in the United Kingdom, despite not entering for that purpose.

Asylum seekers

The position with regard to asylum seekers in the United Kingdom has tightened in recent years, with rights to take up employment being reduced. However the issue has moved on to a more stable position following the implementation of the Reception Directive: 2003/9/EC entitling asylum claimants who have been waiting for over a year for a decision on their claim to take employment.1 This directive has been implemented into law in the United Kingdom through Immigration Rule 3602. It should be noted that it is necessary to both request and receive a grant of permission to work before an applicant can lawfully enter employment.

One point that can lead to a refusal of the application is if the Secretary of State holds the applicant responsible for delay. The 'delay' referred to is a delay in the consideration of the claim; there is no requirement that the asylum seeker should seek permission to work promptly once eligible to do so. Likewise, it appears that the Secretary of State accepts that the 'final determination' of an asylum application is not to be equated to a 'negative decision' on the asylum application itself and that the application remains outstanding during the appeal process (discounting out-of time appeals); the distinction between the reference to 'appeal procedures' in the directive and an 'asylum application' in the Immigration Rules had given rise to fears that litigation would be required to hold the Secretary of State to the terms of the Directive.

Who exactly is an 'asylum seeker'?

The above may give the impression that anyone who has sought asylum in the United Kingdom, and meets the...