No-Deportations - Residence Papers for All |
UK's Non-Conformity with Articles 1, 9, 10, 15 and 18 of the 1961 European Social Charter
Conclusions of the European Committee of Social Rights http://www.coe.int/t/dghl/monitoring/socialcharter/Conclusions/State/UKXX1_en.pdf Article 18 - Right to engage in a gainful occupation in the territory of other States Parties Paragraph 2 - Simplifying existing formalities and reducing dues and taxes The Committee takes note of the information contained in the report submitted by United Kingdom. Administrative formalities Issue of residence permits for the purpose of work The Committee asks whether under the immigration tier system the entry clearance visa gives entitlement to both work and residence permits. More specifically, the Committee also wishes to know whether this system has simplified the earlier rules whereby there were two distinct procedures for obtaining work and residence permits. Self employment Chancery dues and other charges According to Article 18§2 of the Charter, with a view to ensuring the effective exercise of the right to engage in a gainful occupation in the territory of any other Party, States Parties are under an obligation to reduce or abolish chancery dues and other charges paid either by foreign workers or by their employers. The Committee observes that in order to comply with such an obligation, States must, first of all, not set an excessively high level for the dues and charges in question, that is a level likely to prevent or discourage foreign workers from seeking to engage in a gainful occupation, and employers from seeking to employ foreign workers. The Committee notes that fees are high and therefore, it holds that the situation is not in conformity with the Charter.
Article 18 - Right to engage in a gainful occupation in the territory of other States Parties Paragraph 3 - Liberalising regulations The Committee takes note of the information contained in the report submitted by United Kingdom. According to the report the UK Government aims at reducing the overall level of net migration in order to relieve pressure on jobs, housing and public services and restore public confidence in the immigration system. However, the Government has no plans to liberalise non-EEA nationals' access to the UK labour market. The Committee notes that most Tier 1 and Tier 2 applicants qualify for indefinite leave to remain after five years in the UK. Once settlement is granted they are no longer subject to employment restrictions. However, according to the report, the government plans to restrict settlement to only the brightest and best. The Committee recalls that under Article 18 a person who has been legally resident for a given length of time should be able to enjoy the same rights as nationals of that country. The restrictions initially imposed with regard to access to employment must therefore be gradually lifted. The Committee asks whether this is the case for foreign nationals in the Tier representing low skilled workers. The Committee asks for information in the next report on the number of applications for work permits submitted by nationals of non-EEA States, as well as on the grounds for which work permits are refused to nationals of non-EEA States parties to the Charter. In this respect the Committee observes that should refusals always or in most cases derive from the application of rules - like the so called "priority workers" rule -, according to which a State will consider requests for admission to its territories for the purpose of employment only where vacancies cannot be filled by national and Community manpower, determining as a consequence to discourage nationals of non-EEA States from applying for work permits, this would not be in conformity with Article 18§3, since the State would not comply with its obligation to liberalise regulations governing the access to national labour market with respect to nationals of non-EEA States Parties to the Charter. The Committee asks for information in the next report about the measures eventually adopted (either unilaterally, or by way of reciprocity with other States Parties to the Charter) to liberalise regulations governing the recognition of foreign certificates, professional qualifications and diplomas, with a view to facilitating the access to national labour market. Such information shall concern the category of dependent employees, as well as the category of self-employed workers, including workers wishing to establish companies, agencies or branches in order to engage in a gainful occupation. Exercise of the right of employment / Consequences of job loss In its previous conclusion (Conclusions 2008) the Committee held that the situation in the UK was not in conformity with the Charter as workers who lost their jobs had to leave the country, without the possibility of searching for new employment. In this connection the Committee notes from the Governmental Committee report 1 that nationals of countries other than EEA or Swiss nationals require a permit to work in the UK. The permit is however awarded to the employer allowing him to employ a particular foreign worker in a particular post. The worker then approaches the British Embassy in his country of residence for an entry visa which is normally granted in parallel with the work permit. If the worker loses his job for some reason then he has no permit to work in the UK and so would be obliged to leave the country. He cannot simply transfer to another employer without that employer first seeking a permit to employ that worker. - 28 - In practice if his entry visa has not expired the authorities would allow him a period of grace to find alternative employment but he has no permit to work and so theoretically should leave the country. According to the representative of the United Kingdom, the work permit is granted to the employer giving him the right to employ that worker and not to the worker giving him the right to work in the United Kingdom. The Committee observes that both the granting and the cancellation of work and temporary residence permits may well be interlinked, in as much as they refer to the same case in question- whether or not to enable a foreigner to engage in a gainful occupation. However, in case a work permit is revoked before the date of expiry, either because the work contract is prematurely terminated, or because the worker no longer meets the conditions under which the work permit was granted, it would be contrary to the Charter to automatically deprive such worker of the possibility to continue to reside in the State concerned and to seek another job and a new work permit, unless there are exceptional circumstances which would authorise expulsion of the foreign worker concerned, in the meaning of Article 19§8. The Committee holds that the UK legislation does not comply with this approach. Therefore, it considers that the situation is not in conformity with the Charter.
Article 10 - Right to vocational training 'Nationals of other States Parties not EU nationals, residing or working lawfully in the United Kingdom are not treated on an equal footing with the United Kingdom nationals with respect to fees and financial assistance for higher education. Paragraph 4 - Encouragement for the full utilisation of available facilities The Committee takes note of the information contained in the report submitted by United Kingdom. Fees and financial assistance The Committee asks the next report to provide updated information on fees and financial assistance for those undergoing vocational training. Training during working hours Efficiency of training
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