Addressing barriers to accessing South Africa’s labor market by refugees and asylum seekers

 By: Maria Goyayi

Access to the labour market by refugees and asylum-seekers remains a contentious issue in South Africa. The employment of those seeking to legalise their status or are granted asylum in South Africa, amid high levels of internal migration, where local migrants are also seeking better livelihoods, is very challenging. Notably, the widespread belief that migrants have a negative impact on local jobs and the economy is highly contested. In reality, refugees and asylum seekers significantly contribute to the South African economy. The low-risk aversion among refugees and asylum seekers has made them more likely to start a business or engage robustly in the informal economy and promote economic growth. The rate of self-employment among refugees and asylum seekers is high; consequently, they are more likely to create jobs, be employers and own account workers. As self-employment in major towns and cities is an important way to secure access to livelihoods by migrants and locals alike, the positive economic impact refugees and asylum seekers have is noteworthy for development actors and policy-makers in South Africa. Despite significant contributions to economic growth, access to South Africa’s labour market remains challenged.

Refugees and asylum seekers’ rights to work are guaranteed by the South African Refugees Act of 2011, which gives substance to the 1951 Refugee Convention and its protocols. The convention accord refugees and asylum seekers lawfully staying in a country “the most favourable treatment” to the right to engage in wage-earning employment, self-employment and practice a liberal profession and give sympathetic consideration with regards to incorporating the rights of all refugees within those of citizens. However, the right to work postulated in the Refugees Act is unqualified; Section 27(f) merely states refugees are entitled “to seek employment”, and it does not stipulate any further requirement to comply. This legal position may have been driven by the non-humanitarian assistance, self-settlement and integration approach adopted toward the legal treatment of refugees and asylum seekers. The approach expecting migrants to integrate within the society subsequently makes the right to earn a living an integral aspect of refugees’ existence and living a decent life in South Africa. However, contrary to the stipulations of the law, the practice has many requirements that refugees and asylum seekers need to comply with in order to access the labour market. The contrast, therefore, presents a range of challenges ranging from ill-sentiment towards immigrants to legal and procedural barriers. The challenges and the corresponding mitigating measures are discussed below: –

• The restrictive measures imposed on non-citizens by different role players for the protection of citizens regarding accessing the national labour market have limited refugees and asylum seekers’ employment opportunities and overall access to their livelihood. The Refugee Convention to which the Refugees Act and its amendments subscribe forbids the applications of such measures on refugees and asylum seekers who have completed three years’ residence in the country, are married to a citizen or are a parent to one or more children possessing the nationality of the host country. However, it is worth noting the inability of stakeholders, employers, and equally professional councils to distinguish between the Immigration Act and the Refugees Act provisions. Therefore, policy implementing stakeholders and development actors need to take deliberate efforts to create awareness and ensure a coherent understanding of the various tools applicable to refugees and asylum seekers.
• Moreover, under the Refugees Act, the right to work, which is explicitly conferred to refugees, excludes asylum seekers. The convention accords the right to work to “refugees lawfully staying” in a host country. The term is vaguely used and left to interpretation by the specific host country. The term “all refugees” as entrenched under the Refugee Convention refers to recognised refugees, asylum seekers, undocumented (or illegal) asylum-seekers or those refugees who overstayed the period they were permitted to sojourn or have violated one or more conditions of their sojourn. Desirably, the term should be applied in its widest, all-encompassing context to not only refer to legally recognised refugees but to imply both refugees and asylum seekers legally in the host nation. South Africa should thus adopt the wide interpretation of the term. The nation should not deny refugees or asylum seekers a right to work since it forms part of an array of basic human rights and liberties.
• The huge backlog in processing and finalising residence status has rendered many refugees and asylum seekers undocumented. The lack of legal documentation restricts refugees and asylum seekers’ access to the labour market and other basic services such as opening a bank account, an important prerequisite for employment in the formal sector. The immigration office needs to consider other alternative approaches to providing temporary legal status for refugees and asylum seekers to allow them to access the labour market and earn their livelihoods. The electronic identification approach, such as using a mobile phone number registered with the Immigration Office, can be considered a temporary formal identification while awaiting the finalisation of the legal status.
• Legal security in terms of having legal and valid documents for registration with professional affiliations/councils also acts as a barrier to accessing the labour market. This challenge goes hand in hand with the inability to differentiate the provision of the Refugee Act from the immigration Act. Furthermore, the challenge is also attributed to the huge backlog in finalising the legal status of refugees and asylum seekers. Permanent resident status should not be a determinant factor for registration with professional councils since refugees and asylum seekers are allowed to work per the provisions of the Refugees Conventions.
• Highly-skilled qualifications or highly experienced criterion – While the Immigration Act imposes the right to work to be conferred to highly-skilled qualifications or experienced persons, the Refugees Act read, together with the Refugee Convention, relaxes this requirement. Consequently, from an exemption standpoint, the highly-skilled requirement should not apply to both refugees and asylum seekers. Nonetheless, in practice, this is not the case. Professional councils require that employers only consider exceptionally “highly-skilled” non-citizens for employment. For instance, the Health Recruitment Policy explicitly states that foreign health professionals should “compete fairly for the prospective position and on condition that no qualified South African citizen or permanent resident is readily available or has applied for the position”. Such discriminant provisions limit not only the refugees and asylum seekers’ access to the labour market but also prevent the nation from benefiting from the varied levels of skills and experiences of refugees and asylum seekers.
• Xenophobia has persistently emerged as an obstacle to accessing the labour market in South Africa. Xenophobic attacks are not only terrorising refugees and asylum seekers but also prospective employers. The recent trend in xenophobic attacks has been directed at businesses, firms, and institutions owned by or are employing non-nationals. This trend has enacted a wave of fear for both nationals and non-nationals. Programs directed at creating awareness of basic human rights for refugees and asylum seekers should be undertaken by the government and other stakeholders such as Civil Society Organisations (CSO). In addition, programs for building social cohesion among nationals and non-nationals are critical in building trust and security for both nationals and non-nationals in the labour market. However, such programs should be inclusive of nationals and non-nationals and should be based on addressing realistic issues or grievances of both sides.

A worrisome gap exists in refugees’ and asylum seekers’ access to the South African labour market. The processes, procedures, rules and regulations governing refugees’ and asylum seekers’ rights to work and access to the labour market are complex and, in some cases, extremely difficult for refugees, asylum seekers, employers and officials to navigate and comply with. Often opaque laws combined with xenophobic discrimination limit refugees and asylum seekers the opportunity to fulfil their ambitions, advance their knowledge and experiences, and contribute and showcase their skills to the place they now regard as home. Additionally, conflicted attitudes as illustrated by the lack of adoption of measures to give effect to refugee rights, clarifying and addressing the vagueness in definition and context, implicitly or overtly, since the adoption of the Refugee Act has rendered these rights unclear. The legal and procedural barriers discussed above fundamentally violate refugee rights; thus, remedial measures need to be taken by all stakeholders, including the government, society and CSOs. Introducing laws to regulate access to the labour market in line with the provisions of the Refugee Convention, which translates into policy and practice with a properly financed plan of action, is an important first step. Continual exclusion of or limitation of refugees and asylum seekers’ participation in the South African labour market not only reduces them to inferior beings but also denies the nation the refugees’ human resource capital for its economic growth.

Maria Lauda Goyayi is a researcher at the School of Management, IT and Public Governance, UKZN. She writes in her personal capacity.