I'm a refugee working 10 years with no benefits and constant discrimination. What are my rights?

The long answer

The Amended Refugee Act, which was signed into law by then President Jacob Zuma in 2017, despite protests from civil rights groups, came into effect in 2020. The amendments in this Act aim to make it more difficult for asylum seekers to live in South Africa. For example, the amendments remove the automatic right to seek and find employment, which had always been afforded to asylum seekers previously. Cliffe Dekker Hofmeyr, said that the Refugees Amendment Act failed to deal with how asylum seekers would be able to obtain food, shelter, clothing and other basic necessities for themselves and for their families.

The Scalabrini Centre explained that the ability to work or study would have to be ‘endorsed’ on an asylum visa, following an assessment process to determine whether an asylum seeker could support themselves.  

Scalabrini went on to say that the Act would double the amount of time a refugee had to reside in the country before being allowed to apply for permanent residency. ‘This application, which involved applying to be recognized as an “indefinite refugee” would only be possible for those who had been granted refugee status for ten years, which is double the current requirement of five years.’

Under the Amended Refugee Act, an asylum seeker whose documents had expired for thirty days or more, could be arrested and deported, as their claims would be considered to have been ‘abandoned’. This meant that people could be forcibly returned to a country where they were in danger of being persecuted and killed, simply because they were late in renewing a visa. 

Scalabrini took the matter to court in August 2023 and the High Court found that this ‘abandonment provision’ was unconstitutional, arbitrary and irrational. The court interdicted the Department of Home Affairs from deporting any foreign national in South Africa if they had said they wanted to apply for asylum. But such a foreign national could still be arrested, although not deported.  

The second part of the case brought by the Scalabrini Centre, was a constitutional challenge against the amendments in the Amended Refugee Act, arguing that they infringed on the rights of asylum seekers to life, freedom and dignity, and were not in line with South Africa’s international obligations. The court reserved judgement on the constitutional challenge and there is no final judgement yet.

To return to your xenophobic Human Resources manager: if you are employed legitimately by the company, the company must follow the same rules and provide the same benefits to you as a foreign worker, that the South African workers receive. There is not one employment law for South Africans and another for recognised refugees. South African law prohibits discrimination in employment. If benefits like provident fund and medical aid are provided to the other workers, your employer cannot refuse to provide these for you too, as an eligible employee.

This applies to the Unemployment Insurance Fund (UIF) too. Labour Guide said that South Africa "acceded to the U.N. Convention Relating to the Status of Refugees and its 1967 protocol on January 12, 1996, and to the OAU Convention in 1995. The two conventions provide definitions of the term 'refugee' and set out the principal rights of refugees in the host country, which in a number of respects are explicitly stated to be the same as those of nationals in that country."

But for a long time, refugees and asylum seekers had not been able to access UIF monies even though they had contributed to UIF every month of their employment. This was because a 13-digit South African identity number or passport number was needed to successfully apply for UIF benefits. 

Labour Guide pointed out that both the Unemployment Insurance Act and the Unemployment Insurance Contributions Act clearly state that all workers are covered, with no qualification in terms of nationality.  But when an asylum seeker submitted a claim for such benefits, the Department of Labour (DOL) said that it had no system to accept or pay asylum seekers, due to the requirement of a 13-digit ID number or valid passport number.

The asylum seeker took this to court and the DOL was ordered to process the applicant’s UIF benefits, and the court also ordered the DOL to correct their computer systems to allow any asylum seeker who contributed to the fund to be compensated fairly.

The Scalabrini Centre said in 2020 that amendments to the Unemployment Insurance Act Regulations which allowed asylum seekers and refugees who made contributions to UIF, to access UIF benefits, came into effect on 14 February 2020. As a refugee, you would need a Refugee Certificate or Refugee ID as a form of identification to access UIF benefits.

So, what can you do about the issues at your work?

As your HR manager is xenophobic and you may have to go through him to reach your employer, it is probably a good idea to get some advice about how to proceed from one of the following organisations that have much experience in dealing with refugee problems:

• Lawyers for Human Rights 

Website: www.lhr.org.za 

Email: [email protected]

Tel: 015 534 2203 (Musina); 031 301 0531 (Durban); 012 320 2943 (Pretoria); 011 339 1960 (Johannesburg)

• Refugee Rights (Cape Town) 

Website: www.refugeerights.uct.ac.za 

Email: [email protected] 

Tel: 021 650 3775 

• Refugee Rights Centre (Port Elizabeth) 

Flyer: Refugee Rights Centre

Tel: 041 504 1310

• ProBono.org 

Website: https://probono.org.za/ 

E-Mail: [email protected] (Johannesburg); 

[email protected] (Cape Town); 

[email protected] (Durban) 

Tel: 011 339 6080 (Johannesburg); 031 301 6178 (Durban); 087 806 6070 (Cape Town)

Wishing you the best,
Athalie