22 Jul, 2023 10:09 AM

Statement of Changes in Immigration Rules: Asylum Seekers – Right to Work

The Secretary of State for the Home Department by way of STATEMENT OF CHANGES IN IMMIGRATION RULES in pursuant to Section 3(2) of the Immigration Act 1971 implement changes to Immigration Rules (HC 395), as amended. 

Under the latest statement of changes in Immigration Rules, which came into force on 17 July 2023 – the Home Secretary brings changes to Immigration Rules as related to entry clearance, leave to enter or leave to remain and Appendix Skilled Worker under APP SW1.  

The requirements for applying for entry clearance or permission to stay in the UK as a Skilled Worker has been changed by inserting a new Paragraph SW 1.5A after existing paragraph SW 1.5. 
Paragraph SW 1.5A states that: 

“An applicant who is applying for permission to stay and has, or last had, permission as a Student, must fulfil one of the Conditions A, B or C below on the date of application”. In brief these conditions are: 

(a) the applicant must have completed the course of study for which the Confirmation of Acceptance for Studies was assigned; or 
(b) the applicant must be studying a full-time course of study at degree level or above with a higher education provider which has a track record of compliance; or 
(c) (i) the applicant must be studying a full-time course of study leading to the award of a PhD with a higher education provider which has a track record of compliance; and (ii) the Certificate of Sponsorship in SW 1.2(d) must have a start date no earlier than 24 months after the start date of that course.”

This changes also insert a new paragraph SW 14A.1 under the heading “Genuineness requirement for a Skilled Worker” which stated the followings: 

“The applicant must: (a) genuinely intend, and be able, to undertake the role for which they are being sponsored; and 
(b) not intend to undertake employment other than in the role for which they are being sponsored, or as otherwise permitted by SW 18.2.”.

Permission to work for asylum seekers:
Since the latest statement of changes to Immigration Rules came into force, we received many enquiries and question to this effect that can the asylum seekers apply for permission to switch to skilled worker permit visa in the UK? 
Generally, the majority of asylum-seekers who have claimed asylum in the UK are initially not allowed to work.  The Home Office guidance “Permission to work and volunteering for asylum seekers” which provides guidance about handling requests for permission to work from asylum seekers, failed asylum seekers, and those who have submitted protection based further submissions, stated in general terms that “those who claim asylum in the UK are not normally allowed to work whilst their claim is being considered”. However, this is subject to exception, the same guidance clearly states that the Home Office may grant permission to work to asylum seekers whose claim has been outstanding for more than 12 months, “through no fault of their own”. 

Part 11B of the Immigration Rules sets out the policy criteria for granting asylum seekers permission to take up employment. Paragraph 360 of the Immigration Rules states that: “An asylum applicant may apply to the Secretary of State for permission to take up employment if a decision at first instance has not been taken on the applicant’s asylum application within one year of the date on which it was recorded.” 

Those granted permission to work under paragraph 360, usually have their permission restricted it on the shortage occupation list only. Furthermore, paragraph 360B makes it clear that any permission to work granted will only be valid until the claim has been determined and any appeal rights exhausted. 

Finally, the question is those who have claimed asylum in the UK and are initially allowed to work, for example, those who initially has or have had permission to enter the UK as a Student with Permission to Work but during the validity of their leave to enter, whether after or before completing their course of study, claimed asylum and their Application Registration Card (ARC) clearly stated that “Work Permitted” - can they apply for permission to stay in the UK or switch as a Skilled Worker.

Answering to this question, following the above circumstances, I would say that it is arguable that those who have claimed asylum in the UK and are permitted to work, may apply for permission to switch to skilled worker visa as listed on the shortage occupation list, provided that they meet relevant eligibility requirements. In this regard it is imperative to note  that the Home Office guidance under those ‘who cannot apply to switch to this visa” (Skilled Worker)_ states that an applicant cannot apply to switch to skilled worker visa if he/she is currently in the UK, amongst others, on a visit visa, on a short-term student visa or given permission to stay outside the Immigration Rules.

Asylum application regulated by part 11 of the Immigration Rules. Asylum applicant or asylum seekers is defined by paragraph 327 (i) as “An “asylum applicant” is someone who makes a claim under paragraph 327(i) or who is deemed to have made such a claim in accordance with paragraph 327EC”. The status of an asylum application or asylum seekers remains the same until their claim is determined by the Secretary of State in accordance with the Refugee Convention and the Immigration Rules, under paragraph 328.

*Khaled Noor is a Barrister (N/P) and Solicitor. He is the Principal at Blackstones Solicitors, specialising in Immigration, Family Law, and Commercial Property law.

The information contains in this brief piece is for general information purposes only and it does not purport to provide comprehensive legal advice. Blackstones Solicitors accepts no responsibility for loss which may arise from accessing or reliance on information contained in this article. For further information or legal advice, please do not hesitate to contact us.

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