High Court rules work policy for asylum seekers unlawful

The High Court recently ruled that the Home Office’s policy on granting asylum seekers permission to work broke the law by failing to adequately consider the best interests of children.

After a judge ruled that its guidance failed to consider the ‘adverse impact’ on the child when their parents are banned from working ministers are being urged to take a ‘more humane’ approach when considering granting people who are seeking asylum the right to work.

Asylum seekers in the UK are not usually allowed to get a job, but they can apply for permission to work if they have been waiting for a decision for more than a year.

If they are granted permission they are usually only allowed to work in jobs on the Shortage Occupation list, which is comprised of skilled, mainly post-graduate professions, which make up only one per cent of the jobs market.  However, many asylum seekers do not qualify for any of these jobs.

The claimant in the recent case is Honduran national Allan Cordona, who has waited nearly three years, along with his wife and four year old daughter for an asylum decision.

He was granted the right to work in a job on the Shortage Occupation list in 2019, but he did not have the skills or qualifications that would enable him to take up one of these professions.

Mr Cordona requested exemption from this narrow list, but the Home Office refused to grant it, which he said left his family reliant on food banks and unable to afford basic essentials such as warm clothes.

He then launched legal action, and in a court ruling Mr Justice Linden ordered that the Home Office must reconsider its decision on his case.

The judge agreed with Mr Cordona and his lawyers’ argument that the Home Office’s permission to work policy for asylum seekers failed to meet its obligation in respect of the best interests of children.

The Home Office has subsequently updated the guidance since the legal challenge was brought, but lawyers argue that the changes fail to rectify the issue and say they may seek to challenge the updated version.

Mr Justice Linden said the Home Office’s guidance on the policy could ‘mislead’ caseworkers into believing that it was ‘very unlikely that refusal of permission to work would impact adversely on a child of the applicant’ rather than consider the ‘actual adverse impact’ on the child.

Mr Cordona arrived in the UK in September 2018 with his wife and their daughter, after fleeing from a powerful gang in Honduras where he served as a police officer.  They decided to flee to Britain because they have close relatives already settled in the country.

Mr Cordona went on to say that the court’s decision was a ‘huge relief and had reaffirmed his faith in the British justice system’ and he now has a chance of working and providing for his family.

“We have really struggled to survive on the limited amount of money that we receive which works out to be £5 per day per person.  The pandemic compounded our problems and we struggled to buy food and cleaning equipment, masks and hand sanitisers”.

In evidence to the court Mr Cordona said: “I am kept awake every night worrying about our daughter and the psychological impact our current situation is having on her.  Even at local budget stores which are comparatively a lot cheaper, the cost of  such items such as school uniforms is well out of our reach.  I have worked hard all my life, it is extremely difficult to just sit at home and not do anything to relieve the financial pressure that my family is facing at present”.

Home Office figures show that at the end of June 2021 there were 56,617 asylum cases awaiting an initial decision, relating to 70,095 people.  This does not include those who are in the process of appealing initial decisions.

The solicitor who brought this case, Syed Naqvi, said: “Not providing asylum applicants with a right to work whilst they have pending asylum claims can have extremely harmful consequences for asylum seekers and their family members including young children”.

“We hope that the Home Office will now reflect on the criticism levelled at its approach in this judgement and will take a more humane approach when considering right to work requests from asylum applicants, particularly in cases involving young children”.

Mr Naqvi said that the Home Office’s updated policy made no reference to the position of children and argued that it did ‘nothing’ to address the problems identified by the court.  He said he was considering launching a further legal challenge against the updated version.