By Michael Yeates, Director and Kirstin Swanepoel, Candidate Attorney, Employment, Cliffe Dekker Hofmeyr
At the beginning of 2020, new amendments to the Refugees Act 130 of 1998 (The Refugees Act) came into effect. The amendments came into effect as part of the Refugee Amendment Act on 1 January 2020, and were gazetted on 27 December 2020.
These amendments will have far reaching consequences for asylum seekers, and also on employers who regularly employ asylum seekers.
The Refugees Act was recently amended to restrict access to work, curtail certain liberties and discourage political involvement or contact with diplomatic missions under threat of deportation.
Some of the amendments include a withdrawal of refugee status if one engages in political activity or campaigns, an age limit for dependents of refugees and a committee determining a refugee’s field of study and the limits to the work for which refugees may apply.
- Under the Refugees Amendment Act, asylum seekers will no longer have the automatic right to work and study. This right would only be ‘endorsed’ on an asylum seeker permit following an assessment process to determine whether the applicant could support themselves in any way. In the event that the right to work or study is endorsed on the asylum seeker visa, an employer, in the case of a right to work, and the relevant educational institution, in the case of a right to study, must furnish the Department of Home Affairs with a letter of employment or of enrolment at the educational institution, as the case may be, within a period of 14 days from the date of the asylum seeker taking up employment or being enrolled, as the case may be.
- If an employer fails to provide such a letter to the Department of Home Affairs, an employer risks paying a fine of up to R20,000.
- Of importance in terms of existing workers or employees, is that the right to work in South Africa may not be endorsed on the asylum seeker visa of any applicant who seeks to extend the right to work, after having failed to produce a letter of employment. An extension may however, be granted if a letter of employment is subsequently produced while the employee’s asylum seeker application is still pending.
- Therefore, in order for an asylum seeker to work in South Africa or to continue working in South Africa, employers would need to extend an offer of employment to asylum seekers first and then record such an offer to the Department of Home Affairs in order to have the right to work in the country endorsed. It is however, unclear what exactly the process and requirements are to have the right to work in the country ‘endorsed’ and what impact this process will have on existing employees.
- Some of the issues that may arise in light of the amendments’ restrictions on the right to work and study include the fact that employers could become hesitant to provide written undertakings for employees or otherwise risk fines, pushing applicants towards informal or unauthorised employment.
- Some of the other pertinent changes brought about by the amendments include the ban on engaging in political activity. The regulations forbid refugees and asylum seekers from engaging in any political activity, even if it concerns issues in their home countries. Apart from the ban on political activity, the regulations also ban refugees and asylum seekers from visiting their home countries or visiting their local embassies. They will be compelled to get a “refugee” visa at the point of entry to South Africa – which is largely up to the immigration officials on duty. An immigration official will also be able to demand a paternity test from an asylum seeker who wishes to enter South Africa with his children. Failure will result in the child or children being handed over to social workers. It is in light of these changes that the Amendment Act is viewed by many as regressive and as a roll back on the rights and protections afforded to refugees, creating further layers of administrative red tape to an already struggling asylum system.
- The above changes brought about by the Amendment Act have further brought about concerns in relation to the delays in asylum seeker applications. According to Lawyers for Human Rights, an independent human rights organisation, 80,000 people have been waiting for over 10 years to have their status claims adjudicated and the new policies could further exacerbate chronic processing delays.
- The amendments did however, only come into effect on 1 January 2020 and the practical difficulties and challenges highlighted above are yet to be seen in practice, especially where it relates to employers and the obligation on them to provide the Department of Home Affairs with a letter of employment.