Policy change on asylum seekers faces legal challenge

11 Apr 16



What is the change?  A recent decision of the Department of Home Affairs to prohibit asylum seekers from applying for temporary or permanent residence status while in South Africa faces a legal challenge. The DHA is expected to defend the court action, which is scheduled for an April 21 hearing.

What does the change mean? Pending the outcome, employers should be aware that foreign nationals applying for asylum in South Africa continue to be work authorized but must be immediately terminated if their applications are refused and they no longer have the option to apply for work permits while in South Africa.

  • Implementation time frame: Immediate.
  • Who is affected:Companies employing asylum seekers in South Africa; foreign nationals in South Africa with outstanding asylum applications.
  • Business impact: If an employee’s asylum application is refused, the employment must be terminated and any subsequent work permit application must be submitted overseas.
  • Next steps:Employers should review the immigration status of their South African workforce to determine the level of risk exposure. BAL can assist in the process.  

Background: The number of employers impacted by the recent change in DHA policy is potentially significant, given that an estimated 10 percent of the South African workforce are foreign nationals with outstanding asylum applications. Nearly 870,000 new asylum applications were submitted to the DHA between 2008 and 2013.

Under a 2008 court order, the DHA allowed asylum seekers to apply for temporary or permanent residence permits without risk to an outstanding asylum application. Under a recent policy change, however, the DHA no longer allows asylum seekers to change immigration status in-country, requiring them to return home to apply for a temporary or permanent residence permit. The change effectively forces them to give up their asylum claim before submitting an application for temporary or permanent residence. The policy became effective Feb. 3 and applies to all outstanding applications regardless of the submission date.

BAL Analysis: As applications for temporary residence permits include applications for South African work permits, employers need to be aware that, although foreign nationals applying for asylum in South Africa continue to be work authorized, the employment of the foreign national must be immediately terminated if the DHA refuses that application. Employers should also be aware that, pending the outcome of the current legal challenge to the DHA policy, the foreign national can no longer apply for a work permit while in South Africa.

This alert has been provided by the BAL Global Practice group. For additional information, please contact your BAL attorney.

Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@balglobal.com.