Regulating work for refugees and asylum seekers: Between labour market governance and humanitarianism

The proliferation of forcibly displaced people has become one of the most pressing issues of contemporary public debate. This also raises the question of how refugees and asylum seekers should be provided for: whether through direct provision from states, or through their own work. In both public discourse and academic commentary this issue is usually framed as a binary question: to allow them to work or not allow them to work. However, work is not an activity performed in isolation, but it is traded within a competition-driven labour market, and is at the centre of a complex and multi-layered regulatory domain: labour law.

Therefore, this post argues, the issue goes beyond the binary of prohibition or permission. Rather, it must be approached as situated at the intersection of two distinct regulatory domains, meaning that the regulatory framework governing work for refugees and asylum seekers must be consistent with the principles of international protection, and must also incorporate and accommodate the general objectives of labour law. This issue falls at the intersection of numerous layers of governance: international refugee law, human rights, and is subject to regional regimes: in the case of Europe, the European Union rules on asylum. This post, as it refers to European standards, discusses the obligations of European Union member states.

Refugees as Humanitarian Migrants

International Refugee Law, since its inception in the 1951 Refugee Convention, is grounded in an unambiguous humanitarian basis: ensuring that individuals who face persecution may seek safety in another state. International protection regimes, therefore sit in a symbiotic relationship with international human rights law: the latter prescribes a set of inalienable entitlements for all individuals by virtue of their humanity, while the former establishes what should be done when such rights are infringed to a particularly severe degree.

International protection is often defined through juxtaposition with economic migration. Specifically, international protection is extended to those who are understood to migrate for humanitarian reasons and excludes ‘persons who are fleeing poverty or generally seeking better living conditions’. This ontological distinction is at the heart of a heated scholarly debate, with some maintaining that the differentiation is due to the factual distinction between forced and voluntary migration, and to the need to separate those who flee because of risk of death, torture, and those who escape mere poverty. The detractors instead claim that the distinction is a harmful and inaccurate one, which leads to the exclusion of socio-economic rights from the definition of ‘persecution’.

Nonetheless, the continuing differential treatment for humanitarian and economic migrants has significant legal consequences when it comes to governing their work. Owing to the principle of state sovereignty, states benefit from near absolute discretion to determine entries into their territory. This applies to physical entries, but also can be presumed to extend to the regulation of economic activities for non-nationals, often manifested through, for example, specific work visa schemes. Instead, this same discretion does not apply in the context of asylum seekers or refugees, on account of the principle of non-refoulement. As they have entered the territory of the host state to seek safety, any attempt to govern their work to pursue national economic benefits, whether by implementing labour market protectionism policies or to maximize tax revenue, would risk being incompatible with the humanitarian aims which permeate this regulatory domain.

Work as Both a Right and an Economic Transaction

Work is a very particular kind of economic activity, in part because it carries considerable significance for individuals, to the point that the right to work is a well-recognised human rights under the International Covenant on Economic Social, and Cultural Rights (ICESCR). This is both on account of its instrumental value in providing workers with subsistence, but also because of its intangible benefits, as a vehicle for self-realisationor a site for establishing interpersonal relationships. The right to work is not merely a right to participate in the labour market, but rather of seeking a freely chosen occupation which is also necessarily accompanied by decent labour conditions, and the ability to participate in mechanisms for social dialogue, both of which are rights protected under the ICESCR.

However, the right to work is inevitably exercised in the context of a competition-based labour market. And while the relationship between labour law and the labour market is a highly complex and contentious one, it is undeniable that the market is understood to fulfill a central function in determining wages and labour conditions for most workers, above the floor of rights prescribed by legislation or negotiated through collective bargaining.

While the exact way in which the influx of non-national workers affects labour markets is impossible to predict, potential negative consequences on the national labour market have been documented, in particular in the form of labour market segmentation, which carries the potential to cause labour market polarisation, or overall precarisation and degradation of labour standards. Consequently, the regulation of work for refugees and asylum seekers should be approached by states with a view of avoiding such negative consequences, and in order to maintain the integrity of statutory and collectively negotiated labour standards. This is necessary in order to safeguard the right to work and labour rights of both national workers and of refugees and asylum seekers.

A Necessarily Incomplete Roadmap for Regulation

How should host states navigate the tension between the humanitarian aims of international protection with the economic needs of the national labour market- in terms of ensuring the integrity of labour rights for all workers? 

First and foremost, refugees, and, to a lesser extent, asylum seekers cannot be completely restricted from work. This is because they are covered by the right to work, established under the ICESCR, and they potentially benefit from the limited economic rights so far extracted from the European Convention on Human Rights, including the equality of treatment on the basis of nationality alongside the limitations on the ability of states to impose outright prohibitions to work for individuals. The Refugee Convention includes a right for refugees to engage in ‘gainful employment’, the ‘liberal professions’, and ‘self-employment’. Additionally, states benefit from limited discretion in the treatment of refugees and asylum seekers, on account of the principle of non-refoulement. This goes beyond the notion that individuals who move to seek safety should not be restricted from earning a living. It also prohibits efforts by states to limit the ability of refugees and asylum seekers to work to deter cross-border movement. The relevant EU rules, which perform a coordinating function to ensure consistent application of asylum rules across member states, do similarly require states to permit asylum seekers to become employed six months from their initial application. However, any authorisation to work must also entail some degree of freedom in choosing their occupation and for such work to be accompanied by substantive and collective labour rights.

States must try to manage their entry into the labour market in such a way to reconcile or at least balance the humanitarian aims of international protection with the economic needs of the labour market. Clearly, it would not be possible to put forward any hard-and-fast rules, as national regulatory frameworks should account for contextual factors, e.g. the current conditions of the labour market. They should also not simply rely on the mechanism for the provision of an authorization to work to strike this balance between the rights of refugees and asylum seekers and the interests of national workers. They can also rely on sectoral restrictions, or the requirements on employers to conduct labour market tests during recruitment to prioritise national workers. But these must equate refugees and asylum seekers to labour migrants. However, states must also ensure that the applicable regulatory framework ensures the integrity of labour protections established through either statute or collective agreements. They must also safeguard the continued viability of industrial relations, and adopt measures for avoiding labour market segmentation, which may be produced by the presence of workers whose capacity to compete in the labour market is affected by their migration status.

Conclusion

As claimed throughout this post, the issue of how refugees and asylum seekers should be allowed to work is more complex than a binary issue of permission or prohibition, but one of meaningful labour market participation. While refugees and, to some extent, asylum seekers must be permitted to work, eventually, their participation to the labour market must not be subject to excessive restrictions and must be accompanied by labour protections. This is necessary to honour the humanitarian ambitions of international protection and to ensure that refugees and asylum seekers may enter the labour market in a way that is compatible with its needs and not encroach on the socio-economic rights of national workers. Therefore, states must seek to secure the viability of labour protections, whether statutory or derived from collective agreements, and abate the negative consequences of added competition in the labour market, whether in the form of downward pressure on wages or labour market segmentation.