The Right to Work of Asylum Seekers and Refugees _ Cathryn Costello (University of Oslo & Hertie School, The University of Governance in Berlin) & Colm O’Cinnéide (University College London) 10 May 2021 This project has received funding from the European Union’s Horizon 2020 research and innovation programme under grant agreement nº 870787. This document reflects only the author’s view and the Commission is not responsible for any use that may be made of the information it contains. Deliverable No. 4.1 / Right to Work of Asylum Seekers and Refugees TECHNICAL REFERENCES Deliverable No. 4.1 Dissemination level* PU Workpackage 4 Lead beneficiary University of Oslo Due date of deliverable 1 December 2020 Actual submission date 10 May 2021 Author(s) Cathryn Costello & Colm O’Cinnéide ** * PU = Public PP = Restricted to other programme participants (including the Commission Services) RE = Restricted to a group specified by the consortium (including the Commission Services) CO = Confidential, only for members of the consortium (including the Commission Services) ** Colm O’Cinnéide is Professor of Constitutional and Human Rights Law at University College London (UCL). Prof. O’Cinnéide has contriButed as co-author of this paper. UCL is not a partner of the ASILE project. 2 CONTENTS CONTENTS ............................................................................................................... 3 EXECUTIVE SUMMARY ............................................................................................ 4 1. Introduction ........................................................................................................ 5 2. CONTEXT: WORK RIGHTS RESTRICTIONS AND THEIR IMPACT ....................... 7 3. The Right to Work in International Human Rights Law .................................. 10 (a) The Dual Value of the Right to Work ........................................................... 10 (b) The Substantive Scope of the Right to Work in ICESCR ............................... 10 (c) The Personal and Geographic Scope of the Right to Work in ICESCR .......... 12 (d) ICESCR and international cooperation ........................................................ 15 (e) The Right to Work under the Refugee Convention ..................................... 16 (f) Collective aspects of the right to work – trades unions ............................... 18 (g) The UNCRPD ................................................................................................ 19 4. The Right to Work in Regional Human Rights Law ......................................... 19 a) The African Charter of Human and Peoples’ Rights .................................. 19 b) The Inter-American System ....................................................................... 20 c) The Council of Europe System ....................................................................... 21 5. THE RIGHT TO WORK AS AN EU FUNDAMENTAL RIGHT ................................ 32 6. Contesting Work Rights Restrictions .............................................................. 36 a) Litigating the Right to Work ...................................................................... 36 b) Leveraging the Right to Work ....................................................................... 39 7. Conclusion ...................................................................................................... 44 3 Deliverable No. 4.1 / Right to Work of Asylum Seekers and Refugees EXECUTIVE SUMMARY This working paper analyses the right to work to asylum seekers and refugees. Part I briefly sets the scene, with an account of the reality of work rights restrictions for asylum seekers’ and refugees. Part II analysis the right to work of asylum seekers and refugees, specifically examining the right under international human rights law of global and regional scope. Concerning the former, we examine the right under international human rights law of global scope, in particular under the International Covenant on Economic, Social and Cultural Rights. While that instrument is often perceived as being normatively weak, due in part to a misunderstanding about the ‘progressive realization’ standard, the chapter highlights States’ immediate ‘minimum core’ obligations under the right to work. We also assess the right under African, Inter-American, and European regional human rights mechanisms, and under EU law. Some deprivations of the right to work may entail breaches of regional treaties, directly or indirectly. Restrictions on the right to work may also contribute to violations of absolute rights, such as the prohibitions on inhuman and degrading treatment, or forced labour. Part III then looks at the means of securing the right to work, namely through litigation (at domestic and regional levels) and transnational political processes. 4 1. Introduction Article 23(1) of the UDHR provides that ‘Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment’. In this paper, we characterise the right to work as a ‘composite right’ to reflect its diverse and distinct aspects, and their interactions with a range of binding international legal sources. We term this composite right, with its concerns for both the freedom, accessibility and quality of work, as the ‘right to decent work’. In this paper, references to the ‘right to work’ connote this composite right to decent work.1 This right cuts across the traditional bifurcation between civil and political, and socio-economic rights, and is also informed by core ILO labour standards. Although many ILO instruments are concerned with the realization of the right to work, they do not enshrine it explicitly.2 The first evocation of the right to work in the ILO context in 1937 related to women’s right to work.3 Before we turn to the doctrinal analysis, Section 2 briefly explores the reality of work rights restrictions for many asylum seekers and refugees. To explore its application to asylum seekers and refugees, Section 3 analyses the right under international human rights law of global scope, in particular under the ICESCR.4 While that instrument is often perceived of as being normatively weak, due in part to a misunderstanding about the ‘progressive realisation’ standard, we highlight States’ immediate ‘minimum core’ obligations under the right to work. We also note the important articulation of the right to work under the UN Convention of the Persons of Rights with Disabilities, which may have particular relevance relating to asylum seekers and refugees.5 The provisions of the CRPD transcend the dichotomy between civil and political, and economic, social and cultural rights, as is reflected in the formulation of its 1 See in general the essays in Virginia Mantouvalou (ed), The Right to Work: Legal and Philosophical Perspectives (Hart 2015). 2 ILO Convention No 122 Employment Policy (adopted 9 July 1964, entered into force 5 July 1966) 569 UNTS 65. 3 ILO, ‘Resolution concerning Women Workers’ (2–23 June 1937), cited by Angelika Nußberger, ‘International Protection of the Right to Work’, Max Planck Encyclopedia of PuBlic International Law (March 2007). 4 Other pertinent provisions, not examined due to limitations of space, include CEDAW, art 11(1)(a); CERD, art 5(e)(i); CRC, art 32; Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (adopted 18 December 1990, entered into force 1 July 2003) 2220 UNTS 3, arts 11, 25, 26, 40, 52 and 54; and Convention on the Rights of Persons with Disabilities (adopted 13 December 2016, entered into force 3 May 2008) 2515 UNTS 3, art 27. 5 UN Convention of the Persons of Rights with Disabilities UNTS, Article 27. 5 Deliverable No. 4.1 / Right to Work of Asylum Seekers and Refugees composite provision on work and employment, Article 27.6 Given that the EU was a key actor in drafting the Convention, and indeed has ratified it,7 this provision is of potential significance in the EU legal order, both as regards the EU’s own internal standards, and a binding source in its external action. Section 3 examines the right under African, Inter-American, and European regional human rights mechanisms. Some deprivations of the right to work may entail breaches of regional treaties, both directly (article 15 of the African Charter of Human and Peoples’ Rights on the right to work) or indirectly (for example article 8 ECHR on private life or article 3 ACHR, the right to juridical personality). Restrictions on the right to work may also contribute to violations of absolute rights, such as the prohibitions on inhuman and degrading treatment, or forced labour. This is particularly the case in relation to asylum seekers and refugees, who are often in a legally vulnerable position. Indeed, in its ground-breaking ruling in MSS v Belgium and Greece,8 the ECtHR took into account the de facto lack of access to work as part of its assessment of Greece’s violation of Article 3 ECHR. The 2017 ruling in Chowdury and Others v Greece9 is also a crucial recognition of legal vulnerability. Section 4 then examine the right to work as a fundamental right in EU law. The right to work was one of the first fundamental rights recognised by the CJEU in its foundational era.10 The right appears in Article 15 of the EU Charter of Fundamental Rights, notably in Part II on ‘Freedom’, while many other work- related rights appear in the ‘Equality’ and ‘Solidarity’ chapters. The CJEU’s recent caselaw affirms the right to work for