Vol. 41 Associate Editor
On January 1st, 2020, South Africa significantly changed its refugee laws. However, these changes are inconsistent with international refugee law, specifically the 1951 Refugee Convention, to which South Africa is a party. These amendments to South African refugee law run contrary to the right of an asylum seeker to non-refoulment and to work. Additionally, they add layers of red tape to South African’s asylum system while also subverting the right to human dignity, life, freedom, and security of the person as protected both by the South African Bill of Rights and various international instruments.
The 1988 Refugees Act, the South African legislation prescribing rules and regulations for asylum seekers and refugees, was modeled after the 1951 Refugee Convention. In 2020, South Africa amended this Act in order to restrict access to work, curtail certain liberties, and discourage political activity of refugees and asylum seekers. All this is under the threat of deportation for the refugee or asylum seeker. Specifically, new provisions of the Act withdraw refugee status if the refugee participates in any political activity or campaigns, sets an age limit for dependents of refugees, and creates a committee to determine what field of study or work refugees may apply for. Section 1A of the 1988 Refugee Act affirms that the Act must be “interpreted and applied in a manner consistent” with all UN Refugee protocols, 1951 Convention, and the UN Universal Declaration of Human Rights, which means that the domestic law must be consistent with international obligations. However, these new amendments, specifically the limitation on work, do not fall into line with international law.
These amendments create a committee that determines and has the power to limit what refugees are allowed to study or what work they may apply for. No such committee exists for other South African citizens. Refugees, by international law, are not meant to be second class citizens. The right to work is a fundamental human right specifically enumerated in the International Refugee Convention. Although it does not mean a right to a guaranteed job, there must be freedom to gain a living by work freely chosen. The Michigan Guidelines on International Refugee Law remind us that a right to work is “interrelated, interdependent, and indivisible from the rights to life, equality, and the highest attainable standard of physical and mental health, an adequate standard of living” and other essential human rights. It is also of the best interest to the host country to allow a refugee to work, as without work there is no path to self-reliance and they will forever rely on the host country.
The right to work is further protected by numerous other international instruments including Article 23 of the Universal Declaration of Human Rights, Articles 6, 7, and 8 of the International Covenant on Economic, Social, and Cultural Rights, and Article 15 of the African Charter on Human and People’s Rights, all of which South Africa is a party to. Specifically in the Refugee Convention, states are to accord to refugees “lawfully staying in their territories” the same treatment as nationals regarding wage-earning employment.” Section 39 and 233 of the South African Constitution require that South African law be interpreted in accordance with international law. South Africa has also ratified the 1951 Refugee Convention and the 1967 Refugee Protocol, making them binding law in South Africa
These new amendments risk infringing the right to work, and therefore the right to human dignity, as promised to refugees by international law. South Africa is creating a regime that limits the fields of study and occupations that refugees can have which is the exact thing that many refugees are fleeing from. Because South Africa does not have refugee camps, the only way for asylum seekers to live is to work. Micheal Neocosmos, a former professor at the University of South Africa, calls the legislation “another way of instituting legislation to throw people out, ” or in other words refoul. If a refugee or asylum seeker is left destitute in South Africa, he or she will have no choice but to return to the very state they were fleeing from. State policy that denies refugees the right to work “may result in destitution and the violation of the prohibition on inhuman or degrading treatment.”These policies ensure the same result as forcibly sending asylum seekers back across the border. On the other hand, permitting refugees to work and contribute to the economic benefits both the refugee and the local economy.
The new amendments to South African refugee law violate international law, specifically the Refugee Convention, but additionally other international instruments by default. The refugees affected could be sent back to countries where they fear persecution or violence or stay in South Africa and be denied basic human rights. These amendments should be repealed, and South African refugee law should continue towards its goal of human dignity, life, freedom, and security of the person for all.
 Convention Relating to the Status of Refugees art. 24, art. 33, July 28, 1951, 189 U.N.T.S. 152 [hereinafter Refugee Convention].
 Nation Nyoka, South Africa: Amended Refugee Act Restricts Fundamental Rights, New Frame, 2020, https://www.newframe.com/amended-refugee-act-restricts-fundamental-rights/
 Refugees Act 130 of 1998, as amended 2020 [hereinafter Refugee Act]; See Government Gazette No. 11024/No.42932, Republic of South Africa, 27 December 2019.
 See Refugee Act.
 Government Gazette at 11.
 Id. at 10.
 Id. at 11.
 Refugee Act section 9C.
 See Refugee Convention Introductory Note.
 Refugee Convention art. 24.
 Colloquium on Challenges in International Refugee Law, The Michigan Guidelines on the Right to Work, at 295, 2010, https://www.law.umich.edu/centersandprograms/refugeeandasylumlaw/Documents/Michigan_Guidelines_on_the_Right_to_Work.pdf (hereinafter Michigan Guidelines).
 Id. at 296.
 Id. at 295.
 Refugee Convention art. 17.
 Constitution of the Republic of South Africa art. 37, 1996
 See South African Department of Home Affairs, General Procedure: Application for Asylum, Accessed February 15 2020.
 Nyoka supra n.1
 Michigan Guidelines at 295.
 Michigan Guidelines at 296.
The views expressed in this post represent the views of the post’s author only.