A recent change in the immigration regulations relating to asylum seekers and refugees will give South African employers easier access to the skills of foreigners who come here to escape persecution in their own countries.

In a judgment delivered in April 2008, in the matter of Dabone and Others versus the Minister of Home Affairs and Another, the Cape High Court ruled that foreigners registered as asylum seekers or refugees may apply for temporary residence permits – including work permits – while in South Africa. Previously they were required to return to their country of origin before applying, and could not do so without giving up their refugee status.

This meant that many highly skilled foreigners were unable to take up employment in South Africa simply because potential employers did not want to get caught up in the lengthy and inconvenient deregistration and re-registration process.

For the asylum seeker, being compelled to return home to apply for a temporary permit often meant going back into what might be dangerous territory: for example, a Zimbabwean who might be fairly prominent and might have been targeted because he supported an opposing political party might face further persecution on returning home.

Before returning, many would already have spent up to four months trying to reach the front of the queue at refugee centres in South Africa, to apply for their papers as asylum seekers. At the refugee centre in Rosettenville, Johannesburg, there are about 40 000 people a day in the queue – many literally living there in their desperation to reach the front – and the country does not have the capacity to handle this situation. Even in Cape Town, it can take several weeks before asylum seekers – including scientists, doctors, teachers and other professionals – are able to reach the head of the queue just to begin the process of applying for refuge. This is a total waste of the productive use of people’s time.

South Africa hasn’t responded appropriately because, until recently, cabinet did not recognise the problem, with severe implications both for people seeking refuge and South African companies trying to meet skills shortages. Once a country acknowledges the problem, the United Nations requires it to put resources in place to manage its refugees in terms of UN criteria, compensating the country for its expenditure on shelter, food and medical care. This situation is now being addressed in South Africa.

In terms of the Dabone judgment, it is critical for HR managers and other staff recruiters to know that Home Affairs cannot refuse to issue work permits to individuals who have been granted asylum seeker or refugee status in South Africa, and that these individuals no longer have to leave the country before applying for temporary permits. Under our immigration laws, all permits are categorised as temporary residence permits until the permit holder has completed five years of continuous work and elects to apply for permanent residence.

Once all documents for a temporary residence permit have been submitted, with refugee papers attached to the application form, Home Affairs will have up to 30 days – a calendar month – to issue the permit. Employers should not allow applicants to start work before the correct permits have been obtained, as penalties can be severe.

Global Migration can assist prospective employers and foreign workers by assessing and suggesting the best temporary residence permit option in individual cases, and acting for them in handling the entire application procedure and liaising with Home Affairs.

Leon Isaacson is the MD of Global Migration, a national immigration company, which advises corporates and individual clients about immigration options and opportunities in South Africa. Phone 021 4190934 or visit www.globalimsa.com.