Asylum seekers - extending the right to work: evaluation, analysis, and policy options

1. Introduction

This report sets out to evaluate the consequences of policies determining the right to work for asylum seekers. It seeks to assess what the outcomes may be, were the current policy conditions to change, granting asylum seekers in Scotland the right to work at an earlier stage in their process of applying for leave to remain and with fewer restrictions on the jobs for which they can apply. It evaluates a range of limitations which may require mitigation, were such a policy change to be pursued.

The report reviews the current UK position and discusses existing evidence on the impacts of restrictive versus more expansive policies here and in other countries. It draws on available evidence from academic and third sector studies^[7] in the UK, as well as evidence from 8 international case studies, where right to work policies vary across a scale from expansive to restrictive (Australia, Canada, Sweden, Portugal (right to work granted immediately); Belgium, Germany, (right to work granted after 4 and 3 months), US and Netherlands (right to work granted after 6 months).^[8] The report further presents research commissioned directly from the National Institute of Economic and Social Research (NIESR) on the impact that granting the right to work to asylum seekers could have on Scotland’s economy, including the impact on employment, GDP, tax revenue and government expenditure.

Since 2002, UK policy has been highly restrictive and increasingly out of line with the policy choices of other countries. In general, asylum seekers have no right to work in the UK before their asylum claim is upheld. Those who have been waiting more than 12 months for a decision on their asylum claim may apply for permission to work, so long as the delay in resolving their claim is deemed to be not their fault. If permission is granted, they may apply for jobs on the Shortage Occupation List (SOL) but remain ineligible to apply for or take up any other kind of employment. They may not register as self-employed or set up a business. The scheme is more restrictive than those in many other countries in the conditions for eligibility it places on both asylum seekers and jobs. These restrictions do not apply to those who arrive through designated resettlement schemes, such as the Vulnerable Persons Resettlement Scheme, or via complementary visa routes, such as those for Ukrainian nationals, who have the right to work from day one.

The key stated purpose of the policy, since its introduction by the UK Labour government in 2002, has been to create a “clear distinction between economic migration and asylum”.^[9] This rationale has been retained by successive governments, bolstered by a view that access to the labour market could act as a 'pull factor', encouraging asylum seekers to choose the UK as a destination over other countries, as well as concern that a proportion of asylum applicants are in fact economic migrants seeking work rather than 'legitimate' refugees seeking sanctuary.

The current UK policy has been subject to challenges via private members bills, parliamentary questions, and judicial reviews, as well as from third sector advocacy organisations, businesses, and religious groups.^[10] A Home Office review ordered by the Conservative government in 2018 was concluded in 2021, at which time the government decided not to change the existing policy.

Those seeking reform of the rules governing the right to work for asylum seekers have argued that an easing of restrictions to allow asylum seekers earlier access to a wider range of jobs would support integration and reduce destitution and other harms to asylum seekers’ mental and physical well-being.^[11] It has also been argued that allowing asylum seekers to work would reduce the burden on public finances, as well as offering benefits to the workforce through increased diversity and filling skills shortages.^[12]

In the remainder of this introductory chapter, following a brief discussion of the situation of asylum seekers in Scotland and the strategic position of the Scottish Government, we explore the background to the current UK policy in a little more depth. We explore the ways in which the policy has been justified and explore the evidence around these. Chapter 2 then goes on to discuss the rationale for a change of policy highlighting three key themes: the potential benefits to the workforce; the social impacts of improved integration outcomes; and the opportunity to improve asylum seekers’ health, well-being and longer-term protection from exploitation and inequality. Here and for the remainder of the report we integrate a discussion of UK-based studies and debate, with insights and evidence from the international case-studies which are laid out in more detail in the annex.

Chapter 3 has been authored by researchers at the National Institute of Economic and Social Research (NIESR). Following a review of NIESR’s previous work in which they projected the impacts for the UK economy of lifting work restrictions on people seeking asylum^[13], Scottish Government commissioned NIESR to undertake a similar analysis using the Scotland version of the National Institute Global Econometric Model (NiGEM). This has enabled NIESR researchers to estimate the potential fiscal savings and tax gains from lifting the right-to-work restriction, and simulate their effects on Scotland’s economy, including the impact on employment, GDP, tax revenue and government expenditure.

Chapters 4 and 5 consider the challenges and barriers to successful employment for asylum seekers and the capacity within Scotland to provide the necessary support to overcome these. Multiple challenges for both asylum seekers and potential employers need to be carefully considered if a pilot scheme to allow earlier access to the labour market is to be effective. Under current legislation, asylum seekers who are granted permission to work and manage to find a job are liable to lose access to the minimal monetary support and accommodation they receive from the state. With a No Recourse to Public Funds (NRPF) status attached to working asylum seekers^[14], if they are only able to find low-paid and/or insecure employment they may remain at considerable risk of poverty and vulnerable to homelessness and labour exploitation. Employers too are likely to experience risk and uncertainty and will need clear information and support if they are to respond positively and supportively to a change in policy. Both as a result of individual asylum journeys and their consequences, and due to structural barriers and discrimination within the labour market, asylum seekers are likely to be at heightened risk of marginalisation and exploitation. Close attention would need to be paid to the best ways to mitigate these multiple risks. Chapter 5 explores Scotland’s capacity to support asylum seekers into employment and considers some of the challenges of resource allocation this might entail. We conclude our report by laying out those findings which we see as most relevant to informing any planned change of policy and summarising lessons which we hope can be helpful should there be an appetite to design a possible delivery model for a pilot scheme in Scotland.

1.1 Asylum Seekers in Scotland and the strategic position of the Scottish Government

Immigration, asylum, and border controls remain areas of reserved policymaking over which the Scottish Government has no direct jurisdiction. Nevertheless, the Scottish Government has stated its vision of Scotland as an internationally responsible, welcoming, and compassionate country. This has been reflected in proactive responses to resettlement initiatives and in policies to support welcome and integration for asylum seekers and refugees. The New Scots Refugee Integration Strategy, in place since 2014, has a stated vision to support all refugees and asylum seekers regardless of their route to arrival ‘to rebuild their lives from the day they arrive’.^[15] The wider Population Strategy, ‘A Scotland for the future’, reaffirms the Scottish Government’s commitment to the National Performance Framework which prioritises well-being, and social values of ‘kindness, dignity and compassion’ for all.^[16]

More broadly, there is cross-party consensus within the Scottish Parliament, across local authorities and civic organisations, supporting a largely positive view of refugee settlement. Public opinion is also generally supportive of welcoming refugees. A poll conducted for the Scottish Refugee Council in 2021 found 64% support for Scotland to maintain or increase the number or refugees it welcomes; 82% agreed that people deserve to live in dignity while their asylum claim is being processed, and 77% of Scots agreed that asylum seekers should have the right to work to support themselves and their family.^[17]

Scotland’s political leaders have also expressed a view of immigration more broadly as beneficial in easing Scotland’s demographic and labour force concerns. This perspective is reflected in several commissioned reports from this independent Expert Advisory Group^[18] as well as in a number of Scottish Government policy documents.^[19] This view also appears to be well-aligned with Scottish public opinion: a recent survey on Scottish attitudes to immigration for work conducted by the independent think tank Migration Policy Scotland, found that 75% agree that immigration fills jobs for which it is hard to find workers, and 59% agree that it brings people to areas that need them.^[20]

The New Scots Refugee Integration Strategy (NSRIS) applies equally to asylum seekers, refugees and those arriving through resettlement programmes, and includes a vision of Scotland that 'enables everyone to pursue their ambitions through education, employment, culture and leisure activities’.^[21] Integration is defined in this context as ‘a long-term, two-way process, involving positive change in both individuals and host communities, which leads to cohesive, diverse communities’.^[22] In keeping with Ager and Strang’s framework of indicators of integration, within which employment is the first of ten domains,^[23] the strategy emphasises the importance of early integration into education and work as the basis for future resilience and positive contribution to communities and the economy.

The Scottish Government has in the past used devolved powers to support integration and employability services and support for asylum seekers. Two consecutive English for Speakers of Other Languages (ESOL) strategies (2007-2020), for example, ensured ringfenced funding for ESOL provision and extended entitlement to attend language classes free of charge to all asylum seekers from their first day of arrival in Scotland.^[24] Scottish Government funding, through the equality budget, has also been used to support a variety of third sector projects and organisations to provide ‘employability support, English language classes, mental health support and cultural activities aimed at integrating refugees and asylum seekers in their local communities’.^[25] The structures put in place to facilitate these kinds service provision in the past, could be used to introduce a broader range of services and support for asylum seekers, including more targeted employability support, in the context of an extended right to work.

In June 2023 there were 5,323^[26] asylum seekers receiving support from local authorities in Scotland. Until recently, almost all of Scotland’s asylum seekers were housed in Glasgow, the first Scottish city to accept asylum seekers as part of the UK Government’s dispersal scheme in 1999. Whilst Glasgow remains host to the largest number of Scotland’s asylum seekers (4,520), the extension of dispersal arrangements to other Scottish areas has also seen small but growing numbers in Aberdeen, Perth and Kinross, Edinburgh, Renfrewshire and elsewhere. Other local authorities have recently housed growing numbers of people arriving in Scotland for protection. Under the ‘Homes for Ukraine’ scheme for example, over 20,600 Ukrainian nationals have arrived to the UK with a visa sponsored by the Scottish government.^[27] Prior to this, from 2015, virtually all of Scotland’s local authority areas had accommodated Syrian nationals through the Syrian Vulnerable Persons Resettlement Scheme. As noted above, those arriving through such complementary routes and schemes are able to work. Experiences of these groups and of local authorities and other organisations supporting them may help to understand some of the benefits and challenges, as well as levels of support required for a pilot scheme extending the right to work to asylum seekers to be successful.

1.2 Background to the current UK policy

Before mid-2002, asylum seekers in the UK were allowed to work after a waiting period of 6 months from submission of their asylum claim. This concession was removed in 2002 by the Labour government and the right to work was denied to all asylum seekers with very few exemptions, based on Home-office caseworkers’ discretion in ‘exceptional cases’.^[28] A key stated aim of the change in policy was to distinguish asylum seekers from economic migrants. The government also put forward the argument that since decision-making on asylum claims had accelerated, with fewer asylum seekers waiting over six months for a decision, the six-month concession was unnecessary.

In 2005, a concession allowing the right to work for those whose claims had not been resolved after 12-months was reintroduced in compliance with an EU directive on reception conditions for asylum seekers.^[29] Following a Supreme Court determination in 2010, this right was extended to those whose claims had been refused but who had made further submissions which had been pending for more than 12 months. However, at the same time, the Conservative-Liberal coalition government introduced a new restriction limiting asylum seekers with the right to work to apply only for jobs on the Shortage Occupation List (SOL). This bar on asylum seekers working in jobs other than those on the SOL was justified on the grounds that it was in line with wider immigration policy. The latter being guided at the time by concern to reduce immigration from beyond the EU and aiming ‘to direct foreign workers to jobs which cannot be filled by the resident work force’.^[30] It was further suggested that a more generous policy allowing asylum seekers to work in jobs which other overseas applicants might not be eligible to apply for through the points-based system was unfair and could encourage fraudulent claims.^[31] Repeated calls for a review of the policy were rejected on these grounds.

A Home Office review was announced in 2018 and concluded in 2021. A number of judicial reviews during the same time period led to clearer statements about the potential for discretion, for example in complex immigration cases, for victims of trafficking, and where child welfare is involved.^[32] The Migration Advisory Committee also published a report in 2021 calling for a change in policy. Nevertheless, at the conclusion of the review the UK Government decided to retain the existing policy with no change, restating previous governments’ concerns about a ‘pull factor’, the potential for encouraging fraudulent claims, as well as risks of undercutting the resident labour force.^[33]

The restrictions placed on asylum seekers’ rights to work since 2002 have been controversial and contested. Challenges have been raised repeatedly in parliament through private members’ bills, parliamentary questions and proposed amendments from the House of Lords; in the courts through judicial reviews and supreme court rulings; and from the third sector – most prominently by ‘Lift the Ban’ - a coalition of advocacy organisations, religious groups and businesses. ^[34] The UK Government’s Migration Advisory Committee has also recommended that the government review its policy questioning in particularly whether the waiting time before asylum seekers can apply for the right to work should be reduced to six months and querying the restriction to SOL jobs.^[35]

In 2002, when the concession allowing asylum seekers to work after 6 months was removed, this was justified in part on the basis that processing of decisions had become more efficient and few people were waiting that long. Since that time decision-making has deteriorated significantly and the backlog of claims grown exponentially. Figure 1 below illustrates the growth in both numbers and proportion of asylum applicants waiting over 6 months for an initial decision to their claim. These figures do not include those whose claim is under further review, for example where an appeal has been lodged. According to a report of the House of Commons Public Accounts Committee, in June 2023, there were ‘around 175,000 people awaiting a decision on their asylum claim. Around 91,000 people (52% of the total backlog) had been waiting for a decision for at least a year, having made an asylum claim before the Nationality and Borders Act came into force on 28 June 2022’.^[36]

Many of those awaiting decisions for over 6 months are eventually granted asylum. Yet prolonged periods outside of the labour force are likely to have a detrimental impact on their longer-term integration and employability outcomes.^[38]

As noted above the original, and lasting, justification for the existing policy has been that more generous rights to work might act as a ‘pull factor’ encouraging asylum seekers to choose the UK over other safe countries. No evidence has been presented to support this claim. Indeed, the whole premise of distinctive and identifiable push/pull factors which can be used to predict patterns of migration has been widely critiqued. Researchers have argued instead that a much more complex set of drivers and barriers shape patterns of movement and migrant decision-making, especially in instances of forced migration and movement for protection reasons.^[39]

A recent study of the impact of Germany’s decision to open its borders to over one million asylum seekers in 2015, found no evidence of a subsequent ‘pull effect.’ Rather, structural factors, such as conflict and economic hardship, were found to have motivated individuals to leave their country.^[40] A wider systematic review of both qualitative and quantitative studies exploring factors determining asylum seekers’ choices of destination country within Europe found that ‘it is extremely difficult for researchers to identify a single variable which acts as the primary ‘pull’’. The authors conclude that this ‘suggests that the insistence of the UK Government that labour market access acts as a pull factor is not grounded by evidence.’^[41]

More detailed insight from research on asylum seekers’ decision-making and choices regarding destination country has shown that this is rarely based on any systematic knowledge of rights and entitlements in the receiving country.^[42] On the contrary, decisions are often hastily made and asylum seekers exercise relatively little choice. Where drivers for choosing the UK have been identified, these are due to existing family or other personal ties, language ability, and a broad belief that Human Rights and the rule of law are respected in the UK, rather than detailed knowledge of specific rights.^[43] It has been pointed out that these factors often stem from previous colonial ties between the UK and asylum applicants’ countries of origin and do not lend themselves to change through public policy interventions.^[44]

Researchers have also tried to identify a corelation between policies governing labour market access and numbers of asylum applications to different European countries. Mayblin and James’ systematic review, cited above, used data collected in 2014 on asylum applications to European countries ranked according to policies governing labour market access for asylum seekers. They found no corelation between differential access to the labour market and higher or lower numbers of asylum applications.^[45] An earlier study, using data from 1985-1999, did find a correlation, but only in the short term. Restricting labour market access suppressed applications for up to one year, after which restrictions on labour market access ceased to have any effect.^[46]

In the UK, the number of asylum applications did fall considerably after the introduction of restrictions to employment, from a peak of 84,132 in 2002, to a twenty-year low point of 17,916 in 2010. Since then however, with no substantial change of policy, numbers have risen again to a new peak of 81,130 in 2022. ^[47] Fluctuations and renewed increases over a twenty-year period when the restrictions on asylum seekers working have remained constant, suggests this is neither a consistent nor a decisive factor. Indeed, across the EU as a whole, numbers of applications for asylum fell from 421,470 in 2002, to a low point of 197,410 in 2006, and only began to rise steeply and consistently again from 2010, peaking at 1,322,850 in 2016.^[48] Since this EU-wide pattern of peaks and falls is very similar to that seen in the UK, despite the highly varied national regimes and differential access to the labour markets between EU countries, it seems to point again to other geopolitical factors rather than domestic policies as drivers.

A further rationale put forward by successive UK governments for restrictions on asylum seekers’ rights to work, and particularly for the ban on asylum seekers working in jobs beyond the SOL, has been that they should not have more favourable access to the labour market than other groups of migrants. This argument has been suggested both on the grounds of ‘fairness’ in a time of generally restrictive migration policies and for fear that more generous access to work might encourage lower skilled economic migrants to make ‘fraudulent’ claims for asylum to improve their prospects of employment. This latter suggestion has been refuted as failing to understand the circumstances or motivations of undocumented migrants:

It is the availability of work which attracts low-skilled economic migrants and in the absence of a visa, it is easier to stay hidden illegally than to apply for asylum and become visible to the authorities. Asylum seekers in the UK are finger-printed, issued with a biometric ID card, required to present at a reporting centre on a weekly basis, and are liable to detention. Applicants with little legitimate claim for asylum are more liable to be detained and their chance of deportation is greatly increased. Applying for asylum would therefore put such individuals’ migration-for-work project in grave jeopardy.^[49]

The UK Migration Advisory Committee in its 2021 report recommended that the restriction limiting eligible jobs to those on the SOL should be removed, as ‘this was never the purpose of SOL, and the original reasoning behind this restriction does not seem to be particularly coherent.’ ^[50] Moreover, the rationale for this condition was originally made at a time of a more generally restrictive migration regime operating alongside a principle of free movement for migrants moving within the EU. Changes to the migration system since 2021 have in fact resulted in a more liberal migration regime. Both skills and salary thresholds have been lowered to allow foreign workers to apply for a wider range of posts in recognition of the UK’s labour market needs. As noted above, Scottish public opinion appears particularly sympathetic to a view of immigrants as meeting labour market needs rather than competing with other workers for jobs^[51]. In this regard, a loosening of restrictions on asylum seekers’ right to work could be relatively uncontroversial.