Scalabrini launched a constitutional challenge against two sections of the Refugees Act as well as parts of its regulations.
Photo: (David Harrison/M&G)
COMMENT
Covid-19 has had a severe effect on the socioeconomic life of all of South Africa’s inhabitants. It is vital that they all receive protection in the form of healthcare, humanitarian aid and social welfare. Refugees and asylum seekers, too, look to the government for protection
These individuals are protected in South Africa by the Refugees Act of 1998. They are entitled to work in South Africa to sustain themselves and improve their quality of life during their stay.
But they have been excluded from a number of Covid-19 aid packages. Before President Cyril Ramaphosa announced that South Africa would be moving to level 3 of the lockdown, all inhabitants had to close down their non-essential businesses and stay home.
Medical services were offered to all people without discrimination based on nationality. The equal treatment was inevitable because Covid-19 does not differentiate between nations, nationalities or classes. The government’s health responses had to include migrants to prevent a nationwide calamity.
The government recognised that many people who could not generate an income because of the lockdown regulations would not be able to feed themselves and their families. Food parcels were distributed. But there were reports that these parcels were distributed based on nationality and political affiliation.
Since politics played an important role in the provision of humanitarian relief, vulnerable migrants fell through the cracks. This had an even greater effect on the lives of refugees and asylum seekers as they could not access food security.
The most vulnerable, however, are asylum seekers who are excluded from the social grant scheme and social relief of distress grants (unemployment grants). These schemes are designed to assist the vulnerable and unemployed to feed themselves. The exclusion of asylum seekers from these Covid-19 humanitarian relief schemes is a concern because their humanitarian needs must be protected in line with the twin rights to life and human dignity as envisaged by the Refugees Act.
In this regard, economic relief measures designed to pay salaries for employees, to save jobs or to insulate businesses should have considered the plight of asylum seekers and refugees.
They should benefit from the temporary employer-employee relief scheme (Ters), administered by the department of employment and labour through the Unemployment Insurance Fund (UIF). But refugees and asylum seekers have struggled to get their salaries through Ters because some employers told them that the no-work-no-pay principle applied.
Difficulties further arose in situations where companies have used the lockdown to retrench employees. Like other retrenched employees, refugees and asylum seekers should benefit from the UIF because they have contributed to the fund. It is problematic, therefore, that their exclusion has been justified by the employment and labour department, which claims that its computer system is not designed to capture the numbers appearing on their status permits.
This problem persists regardless of the fact that the Equality Court in the 2017 case of Saddiq vs Department of Labour and Other ordered the department to fix its computer system to capture the numbers appearing on these permits.
Refugees and asylum seekers in informal and formal sectors are more vulnerable, especially since relief schemes designed to respond to stressed small and medium-sized businesses were limited to citizens. As a result, they have no access to the debt relief finance scheme, the business growth/resilience facility, the tourism relief fund for small, medium and micro enterprises, the relief funding for distressed businesses, the employer relief fund or the national empowerment fund support, which could have helped their businesses survive this period of economic distress.
On top of this, there has been a political campaign to bar migrants from participating in small business sectors and from employment in certain sectors of the economy. It appears that the minister of small business development, Khumbudzo Ntshavheni, the minister of finance, Tito Mboweni, and the director general of employment and labour, Thobile Lamati, are spearheading this campaign, which could encroach on the rights and freedoms of refugees and asylum seekers to participate in economic activities in the future.
Although permitted to work, the right to work for refugees and asylum seekers is restricted by section 22 of the Constitution, which takes away the right to choose their trade, occupation or profession freely. The right is further restricted in terms of the Employment Equity Act (EEA) of 1998 and the Immigration Act of 2002. Although the equity Act requires employers to prioritise employment of designated groups (Africans, women and people with disabilities) through the implementation of affirmative action, the immigration laws require employers to employ migrants on conditions that (i) the person is highly skilled or possesses a critical skill and (ii) that there is no available suitable citizen to be employed in that position.
Refugees and asylum seekers do not fall within the designated groups because they were not affected by past practices. It is unfortunate that nothing in the Refugees Act exempts them from these restrictive employment measures. Alternatively, they have had to create their own small businesses to survive.
The state’s attempt to bar refugees and asylum seekers from operating small businesses was successfully challenged in the 2015 case of Somali Association of South Africa vs Limpopo, Department of Economic Development, Environment and Tourism in which the Supreme Court of Appeal (SCA) interpreted the right to work to mean the undertaking of business or employment. Although asylum seekers’ right to participate in economic activities is still debated rather controversially in the political arena, the SCA in the 2004 case of Minister of Home Affairs vs Watchenuka has affirmed that they should work to protect their dignity.
In this difficult time, the government should desist from viewing refugees and asylum seekers as “economic migrants” and show its commitment to protect them as it has promised to do in terms of the Refugees Act and align its Covid-19 responses accordingly.