Laws and The Ever-Changing Landscape for Refugees

Laws and the ever-changing landscape for refugees

By: Laura Macfarlane, Attorney at Norton Rose Fulbright

We consulted with a knowledgeable attorney at Norton Rose Fulbright to give us a glimpse into how laws have recently changed. She has given us some insight into what’s new and how that affects the current laws and challenges for foreign nationals in South Africa.

Amendments to the Refugee Act and the promulgation of new regulations, which took effect as of 1 January 2020, make life even more challenging for asylum seekers across South Africa. It is not practical to detail all of the deeply concerning amendments here, but we encourage you to read up on those not outlined below.

Expired applications 

One of the most drastic departures from the central tenets of refugee law, both domestically and internationally, is the ‘abandonment’ provisions that have been introduced. In terms of these provisions asylum seekers whose visas have expired for more than 30 days are deemed to have abandoned their claims for asylum and they can be arrested and deported to the country from where they fled, exposing them to possibly life-threatening persecution. These provisions are presently subject to a court challenge.

Employment

The right to work is no longer an automatic right provided to all asylum seekers. Rather asylum seekers will be assessed and those who can obtain financial support from friends, family, or charitable organisations for a period of three months, will not receive a right to work. Those who are lucky enough to receive an endorsement to work will have this right revoked if they fail to obtain employment after a period of six months. Onerous fines will be imposed on employers for failing to provide letters confirming the employment of asylum seekers, thus making companies even more hesitant to provide employment to asylum seekers. The new provisions are unclear whether asylum seekers will have the automatic right of self-employment.

These provisions are vague but on a generous interpretation can be taken to mean the above. However, the sections in fact note that asylum seekers who are offered any assistance from charitable organizations will not receive the right to work. In practice, these provisions will result in many asylum seekers not being able to support their families.

Right to education/study 

The right to primary education must similarly be endorsed on an asylum seeker’s visa and is no longer an automatic right. Asylum seeker scholars must obtain a letter from their schools evidencing their study in order to obtain this. It appears to be yet another unnecessary layer of red tape with which asylum seekers are required to comply.

The courts have, as recently as December 2019, emphasised that no undocumented child may be prevented from attending primary school. Practically, how this plays out in light of the new laws is yet to be seen.

For more info about these regulations, visit:
https://www.gov.za/sites/default/files/gcis_document/202001/42932rg11024gon1707.pdf