Refugees all over the world face numerous challenges and hardships but one of the most significant hurdles is Refugee’s right to work and earn a livelihood. The right to work for refugees is protected under the 1951 Refugee Convention relating to the Status of Refugees and its 1967 Protocol. This Convention sets out minimum standards for the treatment of refugees. Chapter 3 of this Convention details the refugee’s work rights, including the right to engage in wage-earning employment and self-employment. However, India is neither a party to the 1950 Convention nor its 1967 Protocol and so the refugees in India are not automatically granted rights to employment under the Refugee Convention.
International Frameworks Protecting Refugee Work Rights
The critical source of rights protecting the refugees’ right to work can be found instead in broader international human rights conventions. The right to work is included in several international and regional instruments, yet the 1951 Refugee Convention and the International Covenant on Economic, Social and Cultural Rights, offer the most comprehensive protection of work rights. Article 23 of the Universal Declaration of Human Rights (UDHR) marks work as a universal human right. Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) protect the right to work and also elaborates upon the obligations upon the State to ensure the enjoyment of this right and to ensure safe conditions in the workplace. The United Nations Committee on Economic, Social, and Cultural (UN ECOSOC) Rights has also confirmed that the rights under Article 6 and 7 of the ICESCR are applicable to everyone including non-nationals, such as refugees, asylum seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documentation.
A limitation in this Covenant however is the fact that under Article 2(3) developing countries have the right to determine the extent to which they will guarantee the economic rights in the Covenant to non-nationals. This has led to criticism of the Covenant with respect to its support for the right to work for refugees. The Convention further has provisions which can limit the covenant rights on the ground of resources. Nevertheless, the ICESCR has defined a Minimum Core of rights which are to be ensured by all the signatory governments for everyone to live a dignified life. However, the enforceability of these rights provided under this Covenant has been a challenge till date as there was no mechanism to directly enforce these rights. The introduction of an optional protocol has now offered a legally enforceable means by which individuals, groups and third parties can file complaints against states who have ratified the Covenant for violations of any right under the ICESCR.
India’s Legal Landscape for Refugees
While India has not signed the 1951 Convention or the Protocol, refugees are still being provided protection. There are positive administrative frameworks and judicial decisions to support refugee protection in practice. The legal status of refugees in India is governed mainly by the 1946 Foreigners Act, the 1948 Foreigners Order implementing the act, the 1955 Citizenship Act. However, there is no consistency in the procedure for determining refugees.
The constitution reserves the right to work, practice professions, join unions, and operate businesses to its citizens. The 1946 Foreigners Act and the 1948 Foreigners Order gives the Government the power to limit the employment opportunities along with combining with the 1946 Act and the 2003 Citizenship Act making it further challenging for refugees, except for them who are benefitting from specific arrangements.
Government Obligations to Respect, Protect and Fulfil Work Rights
Governments should respect, protect and fulfil refugee work rights in policy and practice. There is a need for domestic legal frameworks which are consonance with international law and afford refugees a legal status determined through a fair process and an explicit legal right to work. Such a legal right to work needs to also be accessible; the prevalence of exorbitant fees, excessive delays and bureaucratic barriers need to be eliminated. The Government needs to take positive steps to ensure equal access of work to the refugees with domestic legal frameworks also supported with access to legal aid and courts for the violation of labour rights.
Obligations of the Refugee Response Community
Collaboration between international organizations, Non-Governmental Organizations, and other actors at both national and international levels may be able to create strategic and innovative partnerships to ensure the realization of the work rights in both policy and practice.
Policy Advocacyto ensure changes in the domestic laws and implementation of the policies which enshrine the refugees rights to work, which would be in consonance with international law. Legal Assistance to inform and assist refugees with the legal processes for obtaining permissions to work, register businesses, etc. Technical Assistance such as vocational, skills and language trainings as well as information and assistance necessary for accessing financial products and services. Refugee Leadership and Participation in the area of rights advocacy which would help them in asserting their employment rights as well as strengthen refugee participation in advocacy.
Labour Market Assessments and Further Research to assess the issues and opportunities implicating refugee participation in the labour economy.
Conclusion
The treatment of refugees is seen to differ depending upon the country of origin and period of arrival. Therefore, each refugee community faces different challenges in access to services and employment. While some refugee communities have been conferred some privileges and identity cards which have facilitated their entry into the labour market, most of the communities have no legal right to work which spirals into a cycle of labour exploitation and poverty. This has included highly skilled refugees to be pushed into the informal sector and them not being able to fully contribute their skills to address the needs within their own community as well as the country. Thus India should look forward to tackle these challenges and make a country where refugees can receive working grant efficiently leading to the achievement of greater welfare goals.