Asylum Seekers and the Right to Work - A comparative study between the Swedish and German legal system

Abstract: Due to the current refugee crises the question of asylum seekers’ right to work has gained renewed relevance. This paper analyzes the Swedish regulations regarding asylum seekers’ access to the labor market de lege ferenda. Due to the many similarities between Germany and Sweden, the German regulations are studied from a comparative perspective, with the aim of assessing whether some of the German regulations should serve as a source of inspiration for the Swedish legislation. Both legislations are also analyzed under ICESCR to see to what extent they comply with the Covenant. The study shows that limitations on the right to work for asylum seekers are only justified if the discrimination is based on a reasonable and objective criterion, pursues a legitimate aim, and is strictly proportionate to that aim. The limitation of the right to work must also fulfill Aricle 4 ICESCR, which inter alia requires that the limitations are determined by law. The paper finds that the current Swedish regulation is most likely not proportionate under the ICESCR. A vast majority of the asylum seekers are not granted an exemption from the work permit obligation due to the requirement of cooperation in the clarification of the identity. At the same time the desired effect of preventing economic migrants from applying for asylum on false premises is suspected to be small. The Swedish regulation should therefore be altered towards a less restrictive direction. It must also be clarified what the requirement of cooperation means, to bring the Swedish legislation in compliance with Article 4 ICESCR. Since the Swedish ambition is to enable asylum seekers to support themselves and thereby lower state costs, a definite work prohibition similar to the three-month work prohibition in Germany should not be introduced. It can however be considered if Sweden should introduce some type of surveillance to ensure that asylum seekers are not hired under more unfavorable conditions than those of a national worker. This could prevent exploitation of the asylum seekers, as well as a lowering of the standards on the Swedish labor market.