Reworking the Relationship between Asylum and Employment

Penelope Mathew

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781136299049
• Edition: 1
• Topic: Droit
• Subtopic: Droit de l'immigration

Touching on the laws and practices of a wide array of countries around the globe, this book examines the extent to which refugees and asylum-seekers' right to work is protected by international human rights law. The book examines a number of key international treaties, national constitutions and some foundational cases from national courts in order to make the case that the practise of restricting refugees and asylum-seekers access to the labour market is illegal. In so doing, the author examines some intricate legal questions, such as the interpretation of the Refugee Convention's provisions restricting rights to refugees 'lawfully staying', the application of racial discrimination to citizenship distinctions, and the ways in which limitations on human rights are applicable in this context. The book also looks at some broader philosophical questions such as the meaning of equality and human dignity, and the legitimacy of the right to work. The book goes on to explore broader debates concerning migration and 'open borders' in order to unpack the fears that drive many countries' restrictive measures. Readers are invited to consider whether the world would be a better place with more freedom of movement. It is a unique stand-alone treatment of the subject and includes the Michigan Guidelines on the Right to Work.

Reworking the Relationship between Asylum-Seekers and Employment is written in an accessible style that will appeal to academics, policy-makers, practitioners and students. It combines a strong black-letter approach with a law in context approach that explains why the law takes its current shape and questions current orthodoxy.

1
True refugee stories

Getting out of danger, getting in to a place of safety and getting work

Seeking safety is often difficult and dangerous. Even exiting the country of persecution can be challenging. Although governmental prohibitions on exit have diminished following the fall of the Berlin Wall, this is still a concern for dissidents in China,¹ and there are many other barriers to departure, such as roads destroyed during war time and corrupt border officials. Meanwhile, the problem of securing entry to a place of safety is just as significant today as it was for Jewry attempting to flee Nazi rule.

After the Anschluss, thousands of Jews attempted to flee Austria only to meet with immigration restrictions, including visa restrictions in the United Kingdom, the closure of borders by Hungary and Yugoslavia and refusals to permit disembarkation of refugees from ships such as the St Louis.² A conference at Evian-les-Bains in France instigated by US President Franklin D Roosevelt as a response to the refugee crisis was largely a failure. The following paragraphs of the resolution adopted at the end of the Evian conference indicate why this was so:

2. … [T]he involuntary emigration of large numbers of people, of different creeds, economic conditions, professions and trades, from the country or countries where they have been established, is disturbing to the general economy, since these persons are obliged to seek refuge, either temporarily or permanently, in other countries at a time when there is serious unemployment; … [I]n consequence, countries of refuge and settlement are faced with problems, not only of an economic and social nature, but also of public order, and … there is a severe strain on the administrative facilities and absorptive capacities of the receiving countries;

3. … [T]he involuntary emigration of people in large numbers has become so great that it renders racial and religious problems more acute, increases international unrest, and may hinder seriously the processes of appeasement in international relations.³

The failure to act decisively reminds us that it is easy to refuse to act compassionately now and later regret our complicity in what follows. Yet refugees today are often turned away at the border or treated to violence and other restrictive measures that force them to return. The rationale is frequently similar to the excuses made at Evian, amongst developed and developing countries alike, despite the fact that even in the teeth of the global financial crisis of the early 21st century, the economic outlook in developed countries is not as grim as that of Europe prior to World War II. Perhaps it is simply a case that ‘those who cannot remember the past are condemned to repeat it’.⁴

This chapter presents some of the documented history about the reasons for refugee flight, the ways in which asylum-seekers escape their home countries and enter places of refuge, and reactions to them. The chapter looks in some detail at various countries’ practices with respect to employment of refugees and asylum-seekers. It concludes by unpacking the fear that contributes to restrictive employment policies directed at refugees and asylum-seekers.

Getting out: why refugees leave their countries of origin and countries of first asylum

The major treaties governing the treatment of refugees are the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees. A refugee is defined in the Refugee Convention (as modified by the Protocol) as a person who is outside the country of origin ‘owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and is unable or unwilling, because of this fear, to return or to avail themselves of their country’s protection.⁵ The Refugee Convention responded to historical events in the mid 20th century, particularly the Holocaust, engineered by the government of a sophisticated northern country which adhered to a vicious racial ideology. The Nazis murdered six million Jews, many of whom were prosperous and successful members of their communities.⁶

Today, the top refugee-generating countries are all developing countries. In 2010, UNHCR listed Afghanistan, Iraq, Somalia, Democratic Republic of Congo, Myanmar (Burma), Colombia, Sudan, Vietnam, Eritrea and China as the top 10 refugee-generating countries.⁷ In some of these cases, the country is led by a regime responsible for crimes against humanity and war crimes similar to those committed by Nazi Germany. The deposed and subsequently executed ruler of Iraq, Saddam Hussein, is one example, as is the SPDC (State Peace and Development Council) in Myanmar (Burma).⁸ Most of these countries do not have a democratically elected government and they illustrate the workings of the asylum-migration nexus, whereby factors such as human rights abuse and poverty combine to produce forced migration.⁹

By definition, refugees have to get out of their country of origin before they are entitled to the protection of the international community. Commonly, refugees will enter, and often remain in, a neighbouring country, usually in the developing world. The top 10 refugee-hosting countries are developing countries¹⁰ and 80 per cent of the world’s refugees are sheltered in the developing world.¹¹ Frequently, these countries are not party to the Refugee Convention and/or Protocol, which helps to explain why refugees move on in search of protection.

In 2002, the non-governmental organisation Human Rights Watch undertook a detailed study of Australia’s policies to deter unauthorised boat arrivals and looked at the reasons that people moved through several countries on the way to Australia.¹² It found that in countries such as Iran, Pakistan, Jordan and Syria, refugees did not enjoy any legal status and were therefore subject to the risk of refoulement, inability to work legally, the risk of detention for illegal work and inability to attend school or to access adequate medical care.¹³ This situation is perhaps not surprising given that of these four countries, only Iran is a party to the Refugee Convention and Protocol.

Human Rights Watch documented the way in which refugee protection had deteriorated over time in Iran, describing harsh laws and policies introduced in 1997 when President Mohammad Khatami assumed power, espousing the view that ‘Iran is for Iranians’.¹⁴ The report by Human Rights Watch described increasingly severe measures forcing refugees from their jobs, removal of refugees to particular areas or camps, and refoulement.¹⁵ It concluded that:

… the vast majority of Afghan and Iraqi refugees were systemically denied the means to subsist by Iranian law, irrespective of the number of years they had been in the country. This was the primary reason why many refugees decided in 1998–2001 to leave Iran and go in search of an asylum country that would grant them a secure legal status.¹⁶

In the case of Pakistan, many Afghans were not even assured safety from their persecutors as they followed refugees over the border.¹⁷ This should not come as a surprise since the Pakistani Government had been supportive of the Taliban Government in Afghanistan; the Taliban in the Swat Valley, Pakistan, was allowed to control the area in 2009; and the leader of Al Qaida, Osama Bin Laden, was eventually found and killed in Pakistan, close to a Pakistani army barracks. The report also described the appalling situation in countries en route to Australia (which is known to smugglers as a country that will provide a secure legal status) such as Malaysia, which permitted temporary entry to visitors from Islamic countries, making it a useful staging post for entry to Australia and Indonesia.¹⁸

While there are some orderly routes for onward movement of refugees denied meaningful protection in countries of first asylum, they are so small that it is meaningless to talk of a refugee ‘queue’. UNHCR reports that around one per cent of the worldwide refugee population is offered a ‘resettlement’ place¹⁹ – that is, the possibility of legally moving from a ‘country of first asylum’ to a third country which offers a quota of resettlement places for refugees and humanitarian entrants, such as the United States, Canada or Australia. In any event, while the Refugee Convention does not grant a right to enter any particular state, neither does it say that refugee choice as to a country of refuge is forbidden. There are many good reasons to allow some choice – for example, when refugees have family in a particular country it is logical for them to seek protection there and, legally, countries must respect family unity.²⁰ It is also unfair for developing states to be required to shelter refugees simply because of their proximity to refugee flows, especially when developed states may be better placed to host refugees.

Meanwhile, securing lawful migration by means other than refugee resettlement may involve lying, which will be pre-empted in many cases by the zealous refusal of visas for persons coming from refugee-generating countries. Saying that one wants to visit as a tourist when fleeing persecution is understandable but not entirely true, and nor is it entirely true that one intends to visit for a few months if the real aim is to stay out of the country of origin for as long as protection is needed. Not surprisingly, visa applications from refugee-generating countries are scrutinised very closely. In May 2011, the Australian television programme ‘7.30’ documented the harrowing case of a refugee who had come to Australia 10 years earlier and whose parents-in-law were not allowed to visit him and their seriously ill grandchild – the only child of their daughter, who had died while giving birth to this little boy. Australian authorities were concerned that there was ‘no incentive to return’ for the grandparents, both Afghan Hazaras living in Quetta, Pakistan. According to the documentation obtained by ‘7.30’:

[t]he security situation in Baluchistan, particularly Quetta, is generally poor. The Hazaran community is specifically affected by sectarian killings … Since the year 2003, more than 260 people belonging to the Hazaran community in Quetta have been killed in targeted shootings and more than 1,000 injured. There’ve been no convictions for these killings so far.²¹

An Afghan refugee in neighbouring Pakistan who tries to enter Australia lawfully is unlikely to get a visa. However, he or she may well have to move on because of the precarious situation in Quetta.

Getting in: the architecture of immigration control and the resort to people smugglers

A formidable architecture of immigration control shapes immigration flows. Visa controls are ubiquitous, with exceptions built around factors such as similarity in economic and social structures. For example, the European Union (EU) has lifted internal border control and permits nationals of countries such as the United States and Australia to cross, without a visa, the external borders of the EU as visitors for short periods, while nationals of other countries must always obtain a visa. In addition, carrier sanctions may be imposed on airlines and other means of transport if they allow a passenger to arrive without the proper entry documentation.

As a corollary of the tight national controls over immigration, the activities of unoffi...