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REFUGEES AND RELATED BENEFITS: AN OVERVIEW


REFUGEES AND RELATED BENEFITS: AN OVERVIEW

This article provides an overview of recent developments with respect to refugees and the benefits granted to them.

Canada

In September 2015, a news photograph of a drowned Syrian child sparked a heated debate over refugee rights and Canada’s role to provide refuge. Ever since then, refugee rights have been a recurrent theme in Canada’s media outlets and elsewhere. Below is a brief overview of the benefits granted to refugees (i.e., protected persons or persons who received this status following a favorable pre-removal risk assessment decision) and refugee claimants in Canada with regard to health care coverage and work permits.

Health care coverage. Before June 2012, refugee claimants, even those with pending or failed claims awaiting an appeal, were eligible to be covered under the Interim Federal Health Program, which provided similar health care coverage to what Canadian citizens and permanent residents on social assistance were entitled to (basic health care coverage, prescription drugs, vision care benefits, urgent dental care). Following cuts imposed in 2012 by the Conservative government, coverage became tiered and placed prior eligible persons into four categories. This had the effect of significantly reducing their benefits. On April 1, 2016, following Justice Mactavish’s ruling in the Federal Court that these cuts had a “cruel and unusual” impact on refugee claimants, the Liberal government officially announced that the prior Interim Federal Health Program would be restored to what it was before the changes were introduced. Moreover, it was reported that as of April 2017, additional health care coverage would be available to refugees before their departure for Canada.

Refugees, refugee claimants (determined to be eligible for a hearing), and protected persons now have access to full health care coverage, which includes, for most beneficiaries, coverage for the cost of the Immigration Medical Exam (IME) required under the Immigration and Refugee Protection Act. The Interim Federal Health Program provides resettled refugees with basic coverage until they become eligible for provincial or territorial health insurance as well as supplemental and prescription drug coverage as long as they continue to be assisted by the government. Protected persons have access to basic, supplemental, and prescription drug coverage until they qualify for provincial or territorial health insurance. Refugee claimants have access to the coverage until they become eligible for provincial or territorial health insurance, until they depart from Canada if their claim has been rejected or immediately after their claim is either withdrawn or abandoned or they are re-determined to be ineligible and not able to apply for a pre-removal risk assessment.

Work permits. Most refugee claimants in Canada are eligible to apply for an open work permit. They must prove that their personal information form (PIF) has been filed and referred to the Refugee Protection Division of the Immigration and Refugee Board (IRB), and they must demonstrate their inability to financially sustain themselves without resorting to welfare. If these conditions are met, refugee claimants must undergo a medical examination before a work permit can be issued. In certain cases, a person with a removal order that the Canada Border Services Agency is not able to immediately enforce may be able to obtain a work permit.

 

As noted above, not all refugees are eligible to apply for an open work permit. Those from “designated countries of origin” (such as the United States, Mexico, and most European countries) are prohibited from applying for a work permit unless their claim has been accepted or 180 days following the date their claim has been referred to the IRB.

Germany

The opportunities for refugees to be employed in Germany depend on their residence status.

Applicants with permission to reside (Aufenthaltsgestattung).Foreign third-country nationals having crossed the border who have sought or filed for asylum but are still in asylum proceedings may in principle be granted residence for the purpose of employment with the consent of the labor authorities once they have been in Germany for more than 3 months.

Before giving consent, the labor authorities carry out a job market test by examining the impact of the employment on the labor market, whether priority applicants are available, and the concrete working conditions. With regard to the latter, the applicant must benefit from the same working conditions (e.g., salary and working hours) as applicants from the local job market. However, such a test need not be passed if the application is filed under the EU Blue Card visa category for shortage occupations (e.g., natural scientists, mathematicians, engineers, doctors, or IT consultants earning at least €38,688). The same applies to applications filed under the vocational training visa category (Section 6 Employment Regulation) or the recognized occupation requiring formal training visa category (Section 8 Employment Regulation).

The foreigners’ office can grant residence for the purpose of employment without the consent of the labor authorities in the following cases:

  • Employment as an introductory trainee
  • Employment in in a state-recognized apprenticeable occupation
  • Employment under the highly skilled visa category, the EU Blue Card visa category, or the academic person visa category for holders of a German degree (Section 2 para. 1 Employment Regulation)
  • Employment under the executive visa category (Section 2 Employment Regulation)
  • Employment of a spouse, life partner, relative, or first cousin living together with the applicant in a common household
  • Any employment after four years of having been duly employed in Germany with a residence permit (Aufenthaltserlaubnis), a permission to reside (Duldung), or a temporary suspension of deportation status 

Moreover, consent with regard to employees to be employed by temporary agencies may be given only if the applicant resides in Germany for at least 15 months with permission to reside (Aufenthaltsgestattung). In such cases, the priority review is limited to a check of the working conditions based on the specific job, the salary, and the working hours.

Those with permission to reside who must live in a reception facility (Aufnahmeeinrichtung) for six weeks up to six months cannot engage in any employment . The same applies to individuals from countries declared safe countries of origin (e.g., Albania, Bosnia and Herzegovina, Ghana, Kosovo, Macedonia, Montenegro, Senegal, and Serbia) who filed their application for asylum after August 31, 2015, and must live in a reception facility for the duration of their asylum proceedings or, if their applications are turned down, for the duration until they leave the country.

Applicants with a residence permit (Aufenthaltserlaubnis). Applicants who have received a positive decision as a result of asylum proceedings, regardless of the type of protection (e.g., right of asylum, refugee protection, subsidiary protection) in principle have the right to work, whether on a dependent or self-employed basis. However, in case of a prohibition of deportation, the local foreigners’ office decides whether residence for the purpose of employment is granted. It is noted on the residence title as well as on any additional paperwork that has been issued whether such permission has been granted.

Consent concerning those employed by temporary agencies is only given if the applicant resides in Germany for at least 15 months with a residence permit (Aufenthaltserlaubnis). In such cases, the priority review is limited to a check of the working conditions based on the specific job, the salary, and the working hours.

The foreigners’ office may grant residence for the purpose of employment to applicants from the Balkan states declared safe countries of origin (e.g., Albania, Bosnia and Herzegovina, Kosovo, Macedonia, Montenegro, Serbia) concerning any kind of employment if the applicant—before entering Germany—has duly filed an application with the German immigration authorities abroad in the country of origin. However, that privilege is limited in time (from 2016 until 2020) and does not apply to applicants who have received benefits under the Seekers’ Benefits Act (Asylbewerberleistungsgesetz) within the last 24 months. The latter does not apply to applicants who filed for asylum between January 1, 2015, and October 24, 2015; resided in Germany on October 24, 2015, with temporary suspension of deportation status (Duldung); and immediately left the country. The aforementioned stipulation is an incentive for those refugees who were in Germany at the time to leave and come back by following the proper process so that the authorities can review the application while the applicant stays abroad.

Applicants with temporary suspension of deportation status (Duldung). Applicants who are not, or are no longer, in asylum proceedings, or whose applications have been turned down but whose deportation has been suspended, are granted a “certificate of suspension of deportation” (Duldung) by the immigration authorities. Such individuals may in principle be granted residence to work with the consent of the labor authorities once they have been in Germany for more than 3 months.

Before giving consent, the labor authorities carry out a job market test by examining the following criteria: the impact of the employment on the labor market, whether priority applicants are available, and the concrete working conditions. With regard to the latter, the applicant must benefit from the same working conditions (e.g., salary and working hours) as applicants from the local job market. However, such a test need not be passed if the application is filed under the EU Blue Card visa category for shortage occupations (e.g., natural scientists, mathematicians, engineers, doctors, or IT consultants earning at least €38,688). The same applies to applications filed under the vocational training visa category (Section 6 Employment Regulation) or the recognized occupation requiring formal training visa category (Section 8 Employment Regulation).

The foreigners’ office can grant residence for the purpose of employment without the consent of the labor authorities in the following cases:

  • Employment as an introductory trainee
  • Employment in a state-recognized apprentice occupation
  • Employment under the highly skilled visa category, the EU Blue Card visa category, or the academic person visa category for holders of a German degree (Section 2 para. 1 Employment Regulation)
  • Employment under the executive visa category (Section 2 Employment Regulation)
  • Employment of a spouse, life partner, relative, or first cousin living together with the applicant in a common household
  • Any employment after four years of working in Germany with a residence permit (Aufenthaltserlaubnis), a permission to reside (Duldung), or a temporary suspension of deportation status 

Moreover, consent with regard to employees to be employed by temporary agencies may be given only if the applicant resides in Germany for at least 15 months with a temporary suspension of deportation (Duldung). In such cases, the priority review is limited to a check of the working conditions based on the specific job, the salary, and the working hours.

Those with temporary suspension of deportation status who must live in a reception facility for six weeks up to six months cannot engage in any employment at all. The same applies to individuals having such a status if they entered the country to obtain benefits under the Asylum-Seekers’ Benefits Act; if they prevented residence-terminating measures by, for example, providing misleading information about their identity or nationality; or if they come from a country declared a safe country of origin (e.g., Albania, Bosnia and Herzegovina, Ghana, Kosovo, Macedonia, Montenegro, Senegal, and Serbia) and their asylum application was filed after August 31, 2015, and was turned down.

Draft Integration Act (Integrationsgesetz). The governing coalition has just presented a draft of the Integration Act intended to facilitate the integration of asylum seekers by making integration measures available at an early stage, but also providing for sanctions if the integration measures are refused or not regularly attended. Furthermore, the principle according to which the grant of residence for the purpose of employment is only possible once the labor authorities have consented after having carried out a job market test will be lifted for three years since, based on the experience of the authorities, the decision was positive in most of the cases anyway. However, this only applies to regions with a low unemployment rate. In any case, the authorities will check whether the conditions of employment, particularly with regard to salary and working hours, are comparable to those that would be offered to an applicant from the local job market.

India

While India has accepted millions of refugees in recent times—mainly Bangladeshis but also Tibetans, Tamil Sri Lankans, Myanmarese, and Afghans—it does not have a separate law on refugees. Moreover, India is not a signatory to the 1951 United Nations Convention relating to the Status of Refugees and its 1967 Protocol. The Foreigners Act, with its limited definition of “foreigner,” is inadequate to deal with the notions of asylum, non-refoulement, and refugees. On the other hand, India is a signatory to various international and regional treaties and conventions relating to universal human rights and refugees, such as the United Nations Declaration on Territorial Asylum (1967), the Universal Declaration of Human Rights, and the International Convention on Civil and Political Rights. India’s Supreme Court has also extended the application of Article 14 (Right to Equality) and Article 21 (Right to Life and Dignity) to everyone, including migrants and refugees residing within the territory of India. Basic human rights as defined by the United Nations also have been conferred upon refugees in India. 

The Ministry of Home Affairs (MHA) intends to amend the Citizenship Act, 1955 to grant citizenship to undocumented migrants who fled religious persecution in Pakistan and Bangladesh. The migrants would include Hindus, Buddhists, Christians, Zoroastrians, Sikhs, and Jains. The MHA seems to have specifically left out Muslims from the list of migrants, or could have allowed any migrant escaping religious persecution. If the criteria for granting citizenship is religious persecution, Muslims should also have been included in this list. The Citizenship Act, 1955 will have to be amended to reflect their exemption from the status of illegal migrant. Accordingly, a bill is being prepared to bring about these changes to the Citizenship Act, 1955 as well as to the Foreigners Act, 1946; the Passport (Entry into India) Act, 1920; and the Passport (Entry into India) Rules 1950.  

This benefit will extend to allowing people from “minority” communities in Pakistan who are in India on a long-term visa to buy property, open bank accounts, and obtain permanent account numbers (PANs). Previously, New Delhi announced that Pakistanis and Bangladeshis belonging to minority communities who had entered India legally before December 31, 2014, could stay in the country, even if their statuses had lapsed. 

Given the fact that Articles 14 and 15 of the Constitution of India emphasize “equality before law” and “prohibition of discrimination on the basis of religion, caste, sex, race, [and] place of birth,” it will be interesting to see how these amendments to the Citizenship Act or the Foreigners Act will be worded. If such amendments are based on religious discrimination, they may be challenged as violating the fundamental principles laid down by the Constitution of India. The Ministry of External Affairs has also cautioned the Home Ministry that this move could affect relations with India’s neighboring countries. Such a move could also have far-reaching political implications.

Although the Foreigners Act gives unfettered discretion to the government to expel a foreign national, he or she may still invoke the fundamental right to life and liberty as provided for in Article 21 of the Indian Constitution. However, this does not include the right to reside and settle in the country, as provided in Article 19(1)(e), which applies only to citizens of India. In NHRC v. State of Arunachal Pradesh, AIR 1996 SC 1234, the Supreme Court emphasized that it was the duty of a state to protect the life and liberty of Chakma refugees from threats by other groups who are opposed to them, and that the state “must act impartially and carry out its legal obligations to safeguard the life, health and well-being of Chakmas residing in the State without being inhibited by local politics.” Moreover, in Ktaer Abbas Al Qutaifi v. Union of India, 1999 CriLJ 919, the Gujrat High Court recognized the principle of non-refoulement in the Refugee Convention so long as the person is not a threat to national security, even though India is not a party to the Convention, as this principle is encompassed in Article 21 of the Indian Constitution.  

Italy

Italy’s refugee policies are set forth in Decree 251/2007 (implementing the European Commission (EC)’s directive 2004/83), which establishes a minimum standard for the attribution of the status of refugee, as well as the services they can enjoy (e.g., schooling, employment, healthcare), and Decree 25/2008 (implementing EC directive 2005/85). The decrees identify the basic procedures to assign and end refugee status. Withdrawal can occur when the refugee re-acquires protection from his or her own country, the fear of persecution ends, or he or she acquires a new nationality in a state that can grant his or her protection. 

Asylum and protection seekers must present their requests to either the border police at their time of arrival, or the Police Department if they are already on Italian soil. They must remain within a specific area, as determined by the chief officer. The Territorial Commission reviews the application within 30 days and decides whether to interview the applicant. If there is no interview, this may be because there are sufficient reasons to grant refugee status or because the applicant does not have the prerequisites to be granted refugee status. After the interview, the applicant can be granted either refugee status, subsidiary protection, or a stay permit for humanitarian reasons. Refugee status can be refused based on the rejection of the application or for lack of grounds (especially if the individual is found to be applying for protection to delay his or her expulsion from Italy.

United States

In enacting the Refugee Act of 1980, the United States incorporated into domestic law the principles underlying the 1951 United Nations Convention relating to the Status of Refugees and its 1967 Protocol. The President, in consultation with the U.S. Congress, determines the number of refugees the United States accepts for resettlement each year. This year the United States is accepting 85,000 refugees, including 10,000 refugees from Syria. One year after resettling in the United States, refugees are eligible to apply for permanent resident status. 

The United States thoroughly screens all refugee applicants before resettling them in the United States. Successful refugees are investigated at least four times by U.S. and international agencies before they enter the United States. The vetting process can take up to two years.

Shortly after the terrorist attacks in Paris, the U.S. Department of State on November 17, 2015, announced additional screening for Syrian refugee applicants seeking to enter the United States. This process requires Syrian applicants to have their files reviewed at State Department headquarters and then undergo in-person interviews abroad by U.S. Citizenship and Immigration Services (USCIS) officers who have received specialized training. The USCIS Fraud Detection and National Security Unit also separately reviews Syrian refugee applicants with national security concerns. If a Syrian refugee satisfactorily passes these enhanced procedures, he or she must then complete a cultural orientation before entering the United States. 

Several U.S. states have expressed concerns about resettling refugees from Syria and other Middle Eastern countries. The federal government and resettlement agencies have sued to prevent state governments from barring Middle Eastern refugees. The federal government argues that U.S. states lack power to refuse refugees based on their country of origin. In general, U.S. courts have ruled that the federal government has supremacy over state governments concerning immigration policy.  

Once admitted to the United States, refugees are eligible to work. Employers may find that refugees can fill shortages at a time when other categories of foreign workers are less available than in previous years. A common nonimmigrant employment-based visa category, the H-1B specialty occupation, includes a statutory cap of 65,000 visas under the general-category cap and an additional 20,000 cap under the advanced degree exemption per fiscal year. USCIS received 172,500 H-1B petitions for fiscal year 2015, leaving an unfilled demand for over 107,000 skilled positions. In 2016, potential employers again invested a significant amount of time and effort in the H-1B petition process, only to again have the results decided by a lottery due to the significant number of petitions in excess of the cap. Many refugees are college-educated professionals who may immediately work in specialty occupations for which employers would regularly petition for foreign workers under the H-1B category.

As with all new hires, a Form I-9 (Employment Eligibility Verification) must be completed once a refugee has been offered and has accepted a job with the employer. The refugee should mark “Alien authorized to work” in Section 1 and record “N/A” for the date work authorization expires. Upon admission into the United States, a refugee will be issued a Form I-94/Form I-94A (Arrival/Departure) with an unexpired refugee admission stamp while an employment authorization card is being processed. In completing the I-9, the employer must accept this document as a receipt establishing employment authorization and identity for 90 days. At the end of this 90-day period, the refugee must then present the employer either an original Form I-766 (Employment Authorization Document) or a document from List B, such as a state-issued driver’s license, with a document from List C, such as an unrestricted Social Security card. As with all new hires, a refugee may choose to present any acceptable document from List A or combination of acceptable documents from List B and List C. 

Employers are prohibited from discriminating on the basis of race, color, national origin, religion, sex, age, disability, and genetic information. Examples of discrimination include improperly requesting employees to produce more documents than required, improperly requesting that employees present a particular document, improperly rejecting documents that reasonably appear to be genuine and to relate to the employee presenting them, and requiring employees who look or sound “foreign” to present a particular document the employer does not require other employees to present. The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices investigates immigration-related discrimination claims and sues employers on behalf of immigrant workers complaining of discrimination.

Syrian refugees are only the latest group to become the focus of anxiety and discrimination. Employers should remind those who may avoid, insult, harass, or slight their new co-workers based on their nationality that such discrimination is un-American and can subject the company to lawsuits. Setting aside the legal issues, and reflecting practically on the disturbing world we live in today, it is a sad fact that we may need to worry more about our unscreened, U.S.-born applicants and co-workers than we do about extensively vetted refugees.

A Department of State fact sheet with frequently asked questions on the Syrian refugee admissions program is at http://www.state.gov/j/prm/releases/factsheets/2016/254651.htm. An overview of the U.S. refugee resettlement program is at http://www.acf.hhs.gov/programs/orr/resource/the-us-refugee-resettlement-program-an-overview.

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Ivener & Fullmer LLP, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.

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