Limiting the right of refugees to seek employment

Chris Watters

Member Immigration, Nationality and Refugee Law Committees, LSNP AND LSSA

The fragile position in the economy of many refugees [that is, persons who have been formally recognized as such by the Department of Home Affairs in terms of the Refugees Act, 1998] was recently considered by the Transvaal Provincial Division in the matter of Rutimba and others v The Director: Private Security Industry Regulatory Authority and others [case no: 35986/03]. The issue in summary was whether refugees can seek work in the private security industry.

Section 20(1) of the Private Security Industry Act Regulation Act, 56 of 2001, provides that only persons registered in terms of that Act may provide a security service for reward and Section 23(1) of that Act provides further that only citizens and those persons who are permanent residents, may be so registered. In addition, Section 23(6) of the same Act provided that notwithstanding Section 23(1), if there is good cause the Regulatory Authority may register any applicant despite there being non-compliance with Section 23(1).

On the other hand, Section 27(b) of the Refugees Act provides that refugees enjoy

“full legal protection, which includes the rights set out in [the Bill of Rights]” and Section 27(f) of the Refugees Act states that a refugee is entitled “to seek employment”.    

Problems faced by refugees in this context include that (a) they cannot, almost by definition, get police clearances from their countries of origin, which clearances are needed both for registration and for permanent residence applications, (b) they do not qualify to apply for permanent residence in South Africa until they have been in the country as refugees for at least five years and (c) a critical preliminary requirement to qualify for permanent residence is that the Standing Committee for Refugee Affairs must first have issued a certificate confirming that despite the passage of time the refugee is likely to remain in the country “indefinitely” due to the conditions prevailing in the refugee’s country of origin. In terms of Standing Committee practice it will only accept an application for the certificate once the refugee has had that status for five years.

The refugees also face the further difficulty that currently many permanent residence applications are now taking years to be decided due to the enormous backlog created by Home Affairs-driven delays. Given the uncertainty of the duration of their stay and their lack of skills, the security industry is often employment of ‘choice’ for many refugees.

The applicants challenged the constitutionality of the restriction in Section 23(1) of the Private Security Industry Act. The challenge arose not least because registration applications in terms of the ‘safety net’ in Section 23(6), were not succeeding because the Regulatory Authority was applying a blanket policy of refusing applications which did not comply with Section 23(1), it was alleged.

His Lordship Mr. Justice Boshielo reviewed a number of recent judgments dealing with the right to work and the role and standing of security officers and of the private security industry in the South African economy. The Court noted that the Constitution provides for certain offices to be limited to citizens – such as Constitutional Court judges, the Public Protector, members of the Human Rights Commission, the Auditor General, members of the Electoral Commission etc. This limitation had already been found to be legitimate. The Court then drew a parallel between the “high level of trust required by the above-stated offices” and that required of private security officers. Against that background Boshielo J. held that the right in Section 22 of the Constitution [the right of citizens to engage in productive activity] did not afford refugees any relief and that the limitation in Section 23(1) was a reasonable limitation of the refugees rights as set out in Section 27 of the Refugees Act, which restriction was further ameliorated by the safety net in Section 23(6) of the Private Security Industry Act.

The Court rejected the application with costs concluding that “the public interest … adequately justifies the limitations imposed by Section 23(1) [of the Private Security Industry Act] on the rights of refugees to be registered as security service providers … Refugees are free to seek alternative gainful employment in other industries, trades or professions where the security of the public will not be compromised.”

The Court was not asked to consider the position of asylum seekers in South Africa who, being applicants for refugee status, are perhaps even more vulnerable than refugees. Moreover, the Court did not comment directly on the effect of Article 17.1 of the 1951 UN Convention relating to the Status of Refugees, to which convention South Africa has acceded. This provides that the “ …Contracting States shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wage-earning employment.” Section 6(1)(a) of the Refugees Act states that this Act must be interpreted and applied with due regard to the provisions of the 1951 UN Convention. In addition Section 233 of the Constitution provides that when interpreting any legislation, “ … every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.”

Attorneys for the applicants have indicated that they will be seeking leave to appeal this decision.