Employing Asylum Seekers in South Africa: Employer Duties

Key takeaways

• A South African employer may employ an asylum seeker only after checking the person's actual asylum documentation and confirming that the right to work is endorsed on the section 22 asylum seeker visa. The employer must then submit the prescribed employment letter to the Department of Home Affairs within 14 days after the asylum seeker takes up employment, comply with the document's conditions, retain the required records and report specified changes.
• An asylum seeker is not the same as a recognised refugee or a foreign national holding a work visa. Do not decide from a person's nationality, accent, appearance or account of why they came to South Africa. Identify the legal status shown by the current documents, read every condition and verify uncertainty through an official channel or an immigration lawyer.
• If documentation expires or a discrepancy appears after employment begins, do not assume that the employment relationship vanishes or that immediate dismissal is automatically fair. Stop the unauthorised work risk from growing, establish the current status and renewal evidence, let the employee respond, and apply a fair labour process before deciding what employment action is lawful.

1. Classify the document before making a work decision

The first control is classification. Similar-looking Home Affairs documents can reflect different legal positions, and the consequences do not come from the colour of a paper or a label used in conversation.

The asylum seeker permit glossary explains the document at a high level. The refugee-status glossary covers the separate recognition status. Neither page replaces inspection of the holder's actual document and current file.

An asylum seeker visa is not a general work visa. Section 22(8) of the Refugees Act contemplates that the right to work may or may not be endorsed. The employer therefore needs to see the endorsement rather than rely on the fact that an asylum application exists.

2. Run a controlled pre-employment verification

Section 38 of the Immigration Act prohibits employing an illegal foreigner, a foreigner whose status does not authorise employment by that employer, or a foreigner on terms, conditions or in a capacity different from the person's status. It also requires an employer to make a good-faith effort to ascertain status or citizenship. Employers with more than five employees, and employers with a relevant prior conviction, face a stricter compliance standard in the statutory presumption contained in section 38(3).

For a prospective asylum seeker employee, the verification file should record:

• the full name and identifying number exactly as shown on the document;
• the document type and the statutory section shown on it;
• the issue and expiry dates;
• the exact wording of the work endorsement and any restrictions;
• whether the name, photograph and identifying details are internally consistent;
• the role, employer, location, hours or period that may be relevant to a condition;
• the date the original was inspected and the name of the authorised reviewer;
• the verification question sent through an official channel and the response, if verification was required; and
• a follow-up date before expiry.

Inspect the original or an officially verifiable electronic record where available, then retain only the copy and information required for the lawful employment purpose. Do not keep the person's original document. Do not ask for the history or merits of the asylum claim when the employment decision only requires proof of status and authority to work.

A candidate's own explanation can identify what needs checking, but it is not a substitute for the document. Equally, a formatting concern is not proof of fraud. If a record is unclear, pause the affected decision consistently, identify the specific discrepancy, allow the person to provide the renewal or verification material and obtain qualified advice where the answer remains uncertain.

3. Submit the prescribed employment letter within 14 days

Section 22(9) of the Refugees Act places a direct duty on the employer. Where the right to work is endorsed, the employer must furnish Home Affairs with a letter of employment in the prescribed form within 14 days from the date the asylum seeker takes up employment.

The Refugees Regulations published in December 2019 include Form 6, titled “Letter of Employment”. The form calls for the asylum seeker's name, visa number, a copy of the visa, the employer, position and employment period. It also records employer undertakings concerning the visa conditions, record keeping, production of copies when authorised officials request them and notification when employment terminates.

Treat this as a compliance filing rather than an ordinary offer letter. A sound control is to:

1. confirm the endorsed work right before the start date;
2. obtain the current prescribed Form 6 from an official source;
3. complete it from verified records without changing the form's meaning;
4. ensure the stated employment period does not outrun the document relied on;
5. attach the required visa copy;
6. submit it to the correct Home Affairs channel within the statutory period; and
7. retain the completed form, attachments and proof of submission.

Do not backdate the form, create a fictitious job, overstate the employment period or issue it merely to support a status extension where no genuine employment exists. Section 22(10) makes failure to comply with the letter duty, and fraudulent issue of the letter, an offence carrying a fine of up to R20,000 on conviction.

Section 22(11) also provides that the Director-General must revoke an endorsed work right if the holder cannot prove employment after six months from the endorsement date. That makes an accurate employment record important to both sides. It does not authorise an employer to make the revocation decision itself.

4. Build one auditable employment-status file

The immigration record should connect to, but remain access-controlled within, the ordinary employment file. At minimum, keep:

• the document copy and work endorsement inspected at appointment;
• the verification record and any official response;
• Form 6, its attachments and proof of timely submission;
• the employment contract or written particulars and actual job description;
• start date, changes of role, location, employer entity or working capacity;
• renewal reminders and documents supplied in response;
• correspondence about status without unnecessary asylum-claim details;
• the record of any discrepancy inquiry and the employee's response; and
• the termination report and the statutory retention calculation when employment ends.

Section 38(4) of the Immigration Act requires an employer of a foreigner to keep prescribed employment records for two years after termination. It also requires reporting to the Director-General of the termination and of a breach by the foreigner of their status. The Form 6 undertaking separately records notification of termination.

Do not reduce the file to a copied front page and a calendar reminder. The employer should be able to show which authorisation was relied on, how the actual work matched it, when the prescribed letter was sent and how later changes were handled.

5. Apply ordinary labour standards throughout employment

Immigration compliance does not create a lower tier of employee. Written particulars, pay, working time, leave, health and safety, workplace discipline and other applicable employment rules still need to be applied through the ordinary legal framework.

In Discovery Health Ltd v CCMA, the Labour Court considered a foreign national who did not hold the authorisation required for that employment. It held that the person was an employee under the Labour Relations Act and that the CCMA had jurisdiction. The Court also explained that recognising labour-law protection does not require an employer to continue employment that the law prohibits.

The distinction matters. Immigration law can prevent the performance of unauthorised work, while labour law can still regulate how the employer reaches and implements an employment decision. The Discovery Health judgment dealt with jurisdiction and employee status; it did not decide the merits of every later dismissal involving a visa or asylum document.

Sections 185 and 188 of the Labour Relations Act protect employees against unfair dismissal and require a fair reason and fair procedure. If a document problem arises, the employer should not label the issue as misconduct, incapacity or operational requirements before the facts and the legal basis have been assessed. Deliberate dishonesty, an administrative renewal delay and legal impossibility to perform work are not interchangeable situations.

The unfair-dismissal glossary provides the separate labour-law starting point. An employer considering dismissal, suspension, unpaid leave or another material change should obtain case-specific advice rather than assume that an immigration concern cancels contractual and statutory protections.

6. Avoid unfair discrimination and workplace harassment

Chapter II of the Employment Equity Act applies to employers and employees. It prohibits direct or indirect unfair discrimination in an employment policy or practice on listed grounds including race, ethnic or social origin, colour, culture, language and birth, as well as on another arbitrary ground. It also prohibits harassment linked to prohibited discrimination.

That does not prevent a documentation check required by immigration law. It requires the check to be connected to a lawful purpose and performed consistently. A defensible policy should:

• verify authority to work for every person whose status requires it;
• ask only for information needed to establish that authority and the applicable conditions;
• apply the same escalation steps to comparable document problems;
• separate lawful status verification from assumptions about nationality, ethnicity or language;
• prevent colleagues from accessing or circulating the employee's asylum documentation; and
• address xenophobic comments, threats or harassment through the employer's ordinary workplace processes.

Do not advertise a role as closed to “foreigners” when the actual requirement is lawful authority to perform that work. Do not copy an asylum document into team chats, display it to line managers who do not need it or use it to invite speculation about the person's background.

7. Protect asylum and identity records under POPIA

An asylum seeker visa, identity details, photograph, contact information and employment record are personal information. The Protection of Personal Information Act requires collection for a specific lawful purpose, minimality, appropriate retention and reasonable technical and organisational security measures.

For the employer's compliance file:

• define the purpose as status verification, lawful employment, statutory filing and record retention;
• collect the minimum document fields and copies required for those purposes;
• tell the person why the information is collected and who needs to receive it;
• restrict access to authorised HR, compliance, payroll or legal personnel;
• use a protected system rather than open email folders or team drives;
• record disclosures to Home Affairs or advisers;
• maintain accuracy when renewed documentation is supplied; and
• delete or de-identify records when the employer is no longer authorised or required to retain them.

POPIA's retention rule allows retention required or authorised by law. That must be read with the Immigration Act's two-year post-termination record duty and any other applicable employment-record requirement. The result is a documented retention schedule, not indefinite storage “just in case”.

Do not collect the person's full asylum narrative, political history, health information, family history or evidence of persecution unless a distinct lawful need has been identified and the additional POPIA requirements are satisfied. Status verification ordinarily asks what the document authorises, not why international protection was sought.

8. Manage renewal and expiry without making either legal error

Expiry needs an early, documented process. Start reminders far enough ahead for the employee to gather appointment, online-extension or Home Affairs evidence, but do not promise that a renewal will be issued by a particular date.

When the printed date is approaching:

1. notify the employee privately and identify the document due for review;
2. request the renewed visa or reliable evidence of a pending extension or official process;
3. read any official extension notice, receipt, court order or directive rather than treating all receipts as equivalent;
4. verify uncertain status through an authoritative channel;
5. assess whether work may lawfully continue and whether any condition has changed;
6. consider temporary arrangements only if they are lawful under both immigration and labour rules; and
7. record the facts, representations, advice and decision.

Two conclusions should be avoided. First, an expired printed document is not a safe basis for an employer simply to continue work without checking current authority. Second, expiry does not mean an asylum application was automatically abandoned. In Scalabrini Centre v Minister of Home Affairs [2023] ZACC 45, the Constitutional Court declared the Refugees Act's automatic-abandonment provisions in sections 22(12) and 22(13) invalid retrospectively to 1 January 2020.

That judgment protects the asylum claim from the invalid automatic-abandonment mechanism; it does not itself answer whether a particular employee currently has an effective right-to-work endorsement. The employer must establish that separate question on current evidence.

If authorised work cannot lawfully continue, obtain both immigration and labour advice. Give the employee the concern and supporting facts, allow a meaningful response, consider the actual reason for any proposed action and avoid an unagreed unpaid suspension or immediate termination presented as automatic. The article can-an-employer-dismiss-someone-because-their-papers-are-expiring remains the separate dismissal-intent owner in the remediation corpus and should not be treated as published guidance until it passes its own review.

9. Respond carefully to suspected fraud or inconsistency

Fraud is a conclusion that requires evidence. A misspelling, delayed renewal, different reference number or unfamiliar format can have an administrative explanation. Conversely, an employer should not ignore a material contradiction because the person is already on payroll.

Use a controlled inquiry:

• preserve the document and verification trail without editing it;
• identify the exact field, date, condition or response that conflicts;
• restrict discussion to people who need to assess the issue;
• ask the employee for an explanation and supporting record;
• verify with Home Affairs or through qualified legal assistance;
• separate the right-to-work decision from any allegation of dishonesty; and
• use the appropriate fair employment procedure if evidence supports misconduct.

Do not confiscate or destroy an original document, publish the allegation, contact co-workers for speculation or file a false employer letter to “regularise” the situation. Urgent legal help may be needed if the employer cannot determine whether continued work is authorised.

The immigration-law hub provides the relevant lawyer-discovery route for document, status and Home Affairs questions. Labour advice may also be required where employment action is contemplated.

Employer control checklist

• Confirm whether the person is an asylum seeker, recognised refugee or holder of another status.
• For a section 22 asylum seeker, read the current work endorsement and all conditions.
• Match the actual employer, role, capacity and employment period to the authority relied on.
• Complete and submit prescribed Form 6 within 14 days after employment starts.
• Keep proof of submission and an access-controlled document file.
• Calendar expiry and review dates before they arrive.
• Report termination and any reportable status breach through the required channel.
• Retain prescribed records for two years after termination and apply a POPIA retention schedule.
• Investigate discrepancies fairly and consistently.
• Do not continue unauthorised work, fabricate a letter or assume that document expiry cancels labour rights.

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