Removal of the automatic right to work and study for asylum seekers

Under the Refugees Amendment Act, asylum seekers would no longer have the automatic right to work and study. This right would only be ‘endorsed’ on an asylum visa following an assessment process to determine whether the applicant could support themselves in any way (including with UNHCR’s support). If not, they would have the right to work endorsed – but they would need to show proof of employment within two weeks in order to remain with this right. If a workplace does not provide this proof of the asylum seeker’s employment, the employer can face a hefty fine. For those who are studying, the Refugees Amendment Act and Draft Regulations are not completely clear. Proof of studying at a South African education institution will be needed by asylum applicant, implying that the right to study will not be automatically granted.

In Scalabrini’s submissions, deep concerns were raised over the changes to asylum seekers’ right to work and study. The Watchenuka court case in 2003 confirmed asylum seekers’ right to work in South Africa, in that the right to work is interwoven with one’s constitutional right to dignity. The Refugees Amendment Act, it seems, would risk infringing rights to dignity once again. We are concerned that this system, if implemented, will be unworkable, impractical, and will lead to the degradation of asylum seekers’ dignity. What’s more, the UNHCR has confirmed that they are not able to provide shelter to asylum seekers in South Africa – despite the Act envisaging that the UNHCR would do so. The submissions also warned that employers will be hesitant to provide written undertakings (or risk fines), pushing applicants towards informal or unauthorized employment – which is neither beneficial for the asylum seeker nor the South African economy. The administrative process that will be needed to authorize an asylum seekers’ right to work would add further layers to the asylum system, creating more work for officials working in Home Affairs – who should be focusing their time and resources on processing asylum claims. We believe that, if the Department of Home Affairs is able to adjudicate asylum applications within a reasonable period of time, the need to ‘endorse’ asylum seekers’ right to work would fall away. We recommend that the Department of Home Affairs rather funnel resources towards improving efficient asylum adjudications.