Labour-Related Experience of Migrants and Refugees in South Africa

*The original, unabridged version of this paper was published on 17 March 2020 by the Scalabrini Institute for Human Mobility in Africa.¹

I. Research Conceptualization and Framework

Scalabrini Institute for Human Mobility

The Scalabrini Institute for Human Mobility in Africa (SIHMA) is a research institute located in Cape Town, South Africa. SIHMA is part of a broader global network called the Scalabrini International Migration Network (SIMN). SIMN has six other established research centers around the globe in addition to SIHMA, in Argentina, Brazil, France, Italy, the Philippines, and the United States. The network of Scalabrini Migration Study Centers is supported by the Missionaries of St. Charles — Scalabrinians, a congregation of the Catholic Church devoted to the care of migrants, refugees and seafarers.

SIHMA's vision is of an Africa where the human rights of people on the move are ensured and their dignity protected. In working towards achieving this mission, the organization conducts and disseminates research that contributes to the understanding of human mobility and informs policies that ensure that the rights and dignity of migrants, asylum seekers, and refugees in Africa are protected and actualized.²

Purpose of the Research Assignment

SIHMA was commissioned to undertake this research study to understand the processes pertaining to the "employment and working conditions of migrants and refugees in Cape Town, South Africa."³

Specifically, the research was commissioned to "empirically examine": (a) the labor-related experiences of migrants and refugees in Cape Town; (b) the drivers of their decisions to migrate; and (c) other experiences in their countries of origin, transit, and final destination.

SIHMA defined the scope of this research assignment as follows: Utilize qualitative methods to:

• research the labor-related experiences of migrants and refugees in Cape Town;

• research the drivers of their decision to migrate;

• research migrant and refugee experiences in their countries of origin, during transit, and in their final destination (i.e., Cape Town);

• research and produce a brief overview of the theoretical legal protection afforded to migrant workers in South Africa, and compare it to the practical protection available;

• research the working conditions of migrant workers who are, or who have been, employed in Cape Town, South Africa; and

• generate ideas and make recommendations for the achievement of social progress and decent work for all.

Broader Institutional Context

The SIHMA research project described above is a component of a five-year global project. The global project aims to provide Catholic-inspired and faith-based organizations with the capacity to contribute jointly to the promotion and implementation of Pope Francis' encyclical Laudato Sì in areas related to work. This includes the capacity to dialogue with employers and worker organizations.

Definitions

Please see the full report⁴ for a list of definitions utilized in the research.

II. Methodology

The methodology employed was prescribed by SIHMA and was exclusively qualitative. It included the following components.

Situational Analysis

A short situational analysis focused on the statistical and descriptive historical data available on the status quo of refugees and migrants in South Africa. The situational analysis informed the development of the research instruments and created the framework for subsequent analysis.

Legislative Review

A short review of relevant international, national, and local legislation, with emphasis on the applicability to the labor-related conditions and experiences of migrant workers/employment seekers in South Africa, was completed. The legislative review informed the analysis and the recommendations included in the report. The review further ensured that the recommendations are aligned to what is legally and institutionally possible. This step in the methodology also specifically sought to answer the research question about the extent of legal protection afforded to migrants in South Africa (specifically pertaining to their ability to, and conditions of, work). The full review is included as an addendum to the full report.

Development of Research Instruments

Four research instruments were developed for this assignment. Copies are available on request. These were:

• An in-depth interview guide to inform interviews with internal and external stakeholders and subject experts (i.e., not migrants or refugees)

• A focus group discussion guide utilized to conduct three focus groups

• A demographic information sheet was administered and completed by all consenting migrants participating in the research.

• An informed consent form that complied to best practice standards for ethical applied social research was developed. The consent form was signed by all research participants from vulnerable groups.

Data collection

Stakeholder Interviews

Seventeen interviews were completed with internal and external stakeholders, subject experts, and civil society representatives over the period November 2018 to January 2019. Some of the subject experts responded in their capacity as subject experts and in their capacity as migrants, but for the purposes of the analysis are counted only as subject experts. It is likely that the time of year negatively affected participation rates. Others argued that the sector is over-researched and felt that they had already contributed to many similar research studies. Government representatives were entirely unresponsive.

Employer Interviews

Interviews were conducted with the following employers: (a) owner of a plant-hire company in the construction sector active in Johannesburg and Cape Town, and (b) owner of a franchised pub in Cape Town (hospitality sector). These two discussions with employers pointed to the need for a larger, statistically representative study of employers, particularly in the construction industry.

"Migrant" Interviews

Face-to-face interviews were conducted with the 15 migrants. These interviews were conducted in safe and private locations. These were one-on-one discussions that lasted, on average, 90 minutes. Respondents were candid and wanted to be heard. Many respondents came to the interviews prepared with photographs, audio recordings, and other documentary evidence. All participants signed the informed consent forms described above. The interviews took place in English and French.

Two challenges were experienced during this phase of the data collection. The first pertains to the traumatic content of the discussions. Although all respondents positively assessed the experience of participating in the interviews, with many describing the interviews/discussions as cathartic or therapeutic, and although the interviewers had extensive experience conducting interviews with victims of trauma and abuse, respondents were often emotionally overwhelmed or distressed.

The second challenge derived from the justifiable request from the Scalabrini Centre of Cape Town which provided us with the office space for many of the interviews, to provide the participants interviewed on their premises with "incentives." The "incentives" took the form of a "cash refund for travel costs incurred." Given the destitution of the research participants interviewed at the Centre, it was clear that these "reimbursements" were necessary. The respondents did not have the resources available to pay for transport to and from the Centre. However, it is also likely that the provision of the incentives/reimbursements biased the selection process and encouraged participation for reasons other than information sharing. It was clear that once potential participants thought that there would be "payment for participation" they felt encouraged to participate and a line of potential interviewees formed. Some individuals left their children unattended, left work, or came directly after a 12-hour work-shift to participate in the study. For those reasons, it was decided not to turn anyone away. Consequently, one interviewer completed 12 interviews, lasting on average 90 minutes each, in a 19-hour day and night marathon session. It is possible that the quality of the last few interviews could have been compromised by interviewer fatigue.

Focus Groups

Three focus groups were conducted. These are described below.

Focus Group 1 — Domestic workers from Lesotho

The first focus group was conducted in a shared living room at a hostel in Mofolo Soweto on Sunday, 2 December 2018. The hostel is home to approximately 130 female migrants from Lesotho, employed as or seeking employment as domestic workers in South Africa. This focus group was conducted by two senior facilitators and attended by 12 women from Lesotho, all of whom are employed as domestic workers in South Africa. The number of respondents was higher than the recommended number for a focus group and the room was exceedingly crowded, but respondents self-selected for participation and the in-field decision was made to accommodate them. Respondents were asked to complete the basic demographic and socioeconomic data sheet but declined. The content of the document was, however, covered during the subsequent discussion.

The discussion took place in Sesotho (mainly), English and Afrikaans. Translations were made in real time to ensure that all participants could follow the discussions. The session lasted 90 minutes. Respondents were candid and responsive. No incentives for participation were provided to ensure that there was no breach of best-practice protocols for ethical social research, but lunch was served to participants following the discussion.

Focus Group 2 — Owners of small, medium and micro-enterprises (SMMEs) and other self-employed migrants and refugees

Recruitment for the second focus group was conducted by the Scalabrini Centre of Cape Town. The Centre also provided the venue and the catering. Participants for this focus group were selected on the basis of employment status. Given the importance of the informal sector in the survival of migrants and refugees, owners of SMMEs were recruited. A quota was set for female participants. The group was facilitated by a senior facilitator and was conducted primarily in English. Some of the discussion took place in French. The session lasted approximately two hours and occurred on 8 December 2018.

Ten participants were expected to attend the session, but only six arrived. The primary challenge encountered during this focus group was the domineering behavior of male participants, who repeatedly interrupted female participants or talked over them. This had to be managed on a continual basis. Female participants were also hesitant to discuss their experiences of sexual abuse in the mixed group and recounted these events in person after the completion of the focus group. All respondents completed the basic demographic and socioeconomic data sheet. In the case of this focus group, there was no evidence that the payment of incentives affected the selection process or the participants' decision to participate as they were not aware that they would receive it.

Focus Group 3 — Migrants and refugees employed in the hospitality and construction sectors

The third focus group took place on 8 December 2018 at the Scalabrini Centre of Cape Town. The session lasted an hour and was attended by six of the expected ten participants. The session was run by a senior facilitator and was conducted in English. Participants who were employed in the hospitality and construction sectors — two of the key sectors employing migrants and refugees in Cape Town — were recruited.

All respondents completed the basic demographic and socioeconomic data sheet. The participants in this session were mostly younger than 35. This may explain why male dominance was not encountered during this session. Participants received an incentive (in the form of reimbursement for travel costs) for their participation, and lunch was served. There was no evidence that the incentive affected the selection process or the participants' decision to participate as participants were unaware that they would receive it.

Total Sample of Migrants Interviewed

The total number of respondents interviewed for this qualitative study is 58. Of these, 17 were subject experts, two were employers and 39 were migrants/refugees. The majority (24) of the migrants/refugees interviewed were female, while the remaining (15) were male. The sample was biased towards the Democratic Republic of Congo (DRC) (21 participants) and Lesotho (12) because of the convenience-sampling strategy utilized.

Limitations of the Research Methodology

The report listed the following list of limitations and considerations to apply:

• It is a qualitative study, and although the sample size is substantial (58), it is not of sufficient size to generate representative data. However, the findings align with those of many others in the field, which indicates internal validity and reliability.

• The time period for data collection, November 2018 to January 2019, includes a holiday period in South Africa. This likely contributed to the unavailability of some participants.

• The sample size was determined by the resources available for this research. The result is a bias in selection and the omission of key groups of relevant participants.

• In Cape Town, convenience and snow-ball sampling was used to recruit/identify respondents. This introduced the expected biases to the composition of the sample.

• The payment of incentives, albeit justified in the situation, is not a best practice in applied social research.

• The unwillingness of government representatives to participate in the research is a key shortcoming of the process and likely introduces a critical bias in content.

• Mixed-gender focus groups run the risk of silencing the female voice and are not recommended.

• Debriefing sessions run by mental health professionals should be provided to research participants discussing traumatic live events.

III. Situational analysis

A Global Snapshot of Migration

In 2013 the United Nations (UN) estimated that the international migrant population stood at 232 million, of which 96 million resided in developing countries.⁵ By 2017 the estimate had grown to 258 million, and indications are that the number will continue to increase.⁶ Drivers of future migration include: demographic disparities between developing and developed countries, and the possible effect of the aging population in developed countries compared to the working-age-dominant populations of the developing world (and Africa in particular); urbanization and the inability of governments to provide the resources and services required; and globalization and technology that facilitates cross-border social, economic and political ties.⁷

African and Sub-Saharan Migration

Most of the world's displaced people are in, or from, developing countries. According to the World Bank, 30.6 million migrants were from African countries in 2011, and approximately half of these individuals (14 million) remained in Africa.⁸ According to the International Labour Organisation, 30 million Africans moved out of their countries of origin in 2013; of these, 15 million (50 percent), remained in Africa.⁹ The majority of migration in the Sub-Sahara region occurs over land and is characterized by temporary and circular migration with "migrants retaining their ties with home countries and communities" through relatively frequent visits to home countries and "through formal and informal transfers of cash and goods in the form of remittances."¹⁰ The region, reportedly, also has seen an increase in undocumented/irregular/informal migration. Most of the participants in this research study were undocumented/irregular. In many cases their irregular/undocumented status was forced upon them.

A History of Migration in South Africa

Pre-1994, immigrants/migrants to South Africa were either from developed or neighboring countries as laborers to be employed primarily in the mining and agricultural sectors. In this period, migration to South Africa was regulated by the racist Aliens Control Act of 1991. During the 1960s and 70s, white immigrants were encouraged to immigrate to South Africa, while any African immigration would have been unlikely given the laws and apparatus of the apartheid state.

Not surprisingly the number of migrants from the Southern African Development Community (SADC) and the rest of Africa increased in the post-apartheid period. Migrants were arguably attracted to South Africa because of its economic powerhouse status in the region and because of its progressive human-rights framework. The consensus argument in the literature is that 1994 constituted a turning point, during which "labour migration" in the region "sharply shifted" from "demand driven influx control" to "supply driven diverse migration flows" characterized by "undocumented influx."¹¹

South Africa's Migrant Population

South Africa is a primary destination particularly for migrants from the Southern African region but also for migrants of all document/status/types. South Africa was ranked as the sixth-highest migrant-receiving country globally in 2011, receiving more migrants than Canada, the United Kingdom, and Australia.¹² In 2010 the World Bank reported that, after France and the Ivory Coast, South Africa was the largest destination country for African migrants.¹³

Number of International Migrants and Refugees in South Africa

Estimates on the number of migrants and refugees in South Africa show a general increase in documented and undocumented numbers. In 1990 the total number of legal entries into South Africa stood at one million. This increased to 5.1 million in 1996 and 8.5 million in 2011.¹⁴ This does not account for undocumented entries which research suggests account for a significant percentage of total migration. It is important to remember, however, that entering a country does not equate with staying in a country.

Countries of Origin/Source Countries for Migrants and Refugees in South Africa

Statistics from 2016 suggest an increase in the Africanization and the regionalization of migration to South Africa. In 2016 it was estimated that up to 90 percent of all migrants in South Africa were from the African continent (up from 75.3 percent in 2011).¹⁵ Of these, an estimated 85 percent were from SADC countries (up from 68 percent in 2011 and 54 percent in 1994).¹⁶ Data for 2016 and 2017 from the South African Department of Home Affairs demonstrate some changes in the countries of origin of asylum seekers. By 2017 Pakistan was on the list and Malawi not. In 2017, in rank order, the countries of origin for asylum seekers were the DRC (4,849), Zimbabwe (2,927), Bangladesh (2,926), Ethiopia (2,871), Somalia (1,932), Pakistan (1,766), and Nigeria (1,506).¹⁷ Applicants were almost exclusively from Africa (18,649) and Asia (5,516). Only nine applications (in total) were received from asylum seekers from Europe, the Americas and the Caribbean.¹⁸ Excepting decreased immigration from developed countries, these changes should not be interpreted as trends. As noted, they reflect changing socioeconomic and political conditions in countries of origin rather than factors inherent to South Africa.

Documentary Status of Migrants and Refugees in South Africa

The exact number of undocumented migrants is unknown, but Statistics South Africa estimated that there were two million undocumented migrants in South Africa.¹⁹ The Department of Home Affairs claimed in a 2018 white paper that 15.6 million foreign arrivals were recorded in 2015, compared to 14.2 million departures, meaning 1.44 million people remained in South Africa.²⁰ No data is available on the documented status of the 1.44 million, but it stands to reason that undocumented migrants constitute a large component. In fact, academic and research consensus is that informal/irregular/undocumented migration to South Africa is increasing.²¹

Statistics for refugees and asylum seekers are more accurate given the existence of (flawed) documentation processes. In 2013 over 230,000 asylum seekers were awaiting a refugee status determination, one of the highest application rates in the world.²² Applications, however, are only one indicator of the number of documented and undocumented migrants and refugees in the country. Another indicator is the number of people who are granted refugee status at the end of the adjudication process. The data also shows, that even given the cumulative effect of annual successful adjudications, the refugee population may not be increasing. In 2014 there were an estimated 65,240 refugees residing in South Africa.²³ In 2015 there were an estimated 110,000 refugees in South Africa.²⁴ In 2016 this number had declined to an estimated 97,000 refugees.²⁵

Socioeconomic Profile of Migrants and Refugees in South Africa

In 2011 Statistics South Africa estimated that 60 percent of international migrants/foreign-born persons in South Africa were male. In 1990 62 percent were male. As noted above, many authors²⁶ refer to the feminization of migration to South Africa, but these claims are debatable given the inaccuracies in available data.

South Africa's migrant/foreign-born population is comparatively young, and, according to the UN Refugee Agency (UNHCR), South Africa has the highest number of young people from the rest of sub-Saharan Africa.²⁷ Approximately 85.3 percent fell within what is defined as the "economically active" age group. Concerning the distribution by "race" group, Statistics South Africa records that in 2011, 71.6 percent of migrants were "black Africans," while "whites," "Asians," and so-called "coloureds" accounted for the remainder.²⁸

Migrants and refugees settle in the more urbanized and economically developed provinces of South Africa. There is a "racial" component to settlement: "Black Africans" are most likely to settle in Gauteng and least likely to settle in the Western Cape. By contrast, 24.5 percent of "white" migrants settled in the Western Cape. This is likely a reflection of their levels of education and resources.

Studies have shown that 28.7 percent of the migrants who seek assistance from NGOs have tertiary qualifications.²⁹ A 2006 survey of migrants in Johannesburg found that migrants were more likely to hold a tertiary qualification than their South African counterparts. The skills and education that migrants bring to South Africa are not being optimally utilized. Although one in ten migrants surveyed in Johannesburg in 2006 had worked as a doctor, nurse, lawyer, or teacher in their country of origin, none were working in these professions in South Africa.³⁰

Profile of Migrants and Refugees in the South African Labor Force

This section focusses on the foreign-born contingent of the South African labor force.

Prevalence

In 2011 South Africa's working age population stood at 35.4 million people and the labor force at 22 million.³¹ According to Statistics South Africa's Quarterly Labour Force Survey (QLFS) for the third quarter of 2012, one in 25 (5 percent) of the South African working-age population was foreign born. At the time this amounted to 1.2 million people. In 1996 the estimate stood at 2.7 percent, in 2001 at 4.6 percent, 5.8 percent in 2007, and 6.5 percent in 2011, suggesting a post-democracy increase that has been sustained from the mid-2000s.³²

The countries of origin of labor migrants have changed alongside the overall profile of migrants to South Africa. In 1996, 22 percent of foreign-born workers in the South African labor force were from Mozambique, 18 percent from the United Kingdom, and 14 percent from Zimbabwe. The respective figures for 2011 were 22 percent, 2 percent and 35 percent.³³ In 2011 an estimated 38 percent of the foreign-born labor force was female.³⁴ The average age of a South African-born worker in the South African labor force was 35.6 years in 2011, while the average age for a foreign-born worker was 34.8.³⁵

Employment Status and Composition of the Labor Force

In 2015 Statistics South Africa reported (based on the Census of 2011) that 63.1 percent of international migrants were employed, while 20.3 percent were not economically active, 13.9 percent were unemployed, and 2.8 percent were discouraged work seekers. If these figures are correct, foreign-born persons are slightly more likely (on average) to be employed than South Africans.³⁶ Because this study focuses on the labor-related experiences of migrants and refugees in the Western Cape, it is important to point out that employment rates in the Western Cape (68 percent) are higher than the national average (58 percent), and official unemployment rates are lower, 16 percent compared to 22 percent.

Furthermore, the likelihood of employment in South Africa is still influenced by race so that the unemployment rate for black South Africans is much higher than for other "racial" groups in South Africa. Another caveat is that the migrant population is not a random sample, and in some cases, entry into South Africa is predicated on already having access to secure employment.³⁷

Migrant and Refugee Employment by Sector/Industry

This section of the report demonstrates that, when employed, migrants tend to be in precarious or exploitative situations. More than a third are employed in the informal sector, and many of those employed in the formal sector are in industries such as mining, agriculture, construction, and hospitality that have been documented as exploitative, precarious, informal, dangerous, poorly compensated, and under-unionized. Census 2011 data indicated that 62.6 percent of employed migrants are employed in the formal sector, 17.2 percent in the informal sector, and 17.1 percent in private households (i.e., 34.3 percent are in the informal sector).³⁸

Furthermore, foreign-born members of the South African labor force are twice as likely to be self-employed, indicating high levels of vulnerability and difficulty accessing formal employment. Specifically, 50 percent of foreign-born members of the South African labor force are self/informally employed, compared to 29 percent of South Africans who have not migrated internally, or to 22 percent of South Africans who have migrated internally.³⁹

Unionization

The positions of vulnerability of foreign-born workers in the South African labor force referred to above are also demonstrated by the comparatively low levels of trade union membership (e.g., 30 percent of South African-born workers are members of unions compared to 12 percent of foreign-born workers,⁴⁰ which means that foreign-born workers constitute only 2 percent of total union membership), and the fact that foreign-born workers systematically have less access to employment benefits such as unemployment insurance (UIF), medical aid, and retirement/pension funds.

Key unions in South Africa have public mandates that recognize the need to monitor the labor conditions of foreign workers but for various reasons find it difficult to do so. The Congress of South African Trade Unions (COSATU), for example, claims to have a progressive formal stance on migration, and many of its members, particularly in the mining sector, are migrants. The South African Commercial, Catering and Allied Workers Union (SACCAWU) has a similar position, and all workers in the country are welcome to join. SACCAWU has also actively built relationships with unions in the SADC region. The unions, however, do not record whether their members are foreign or native born. The consequence is that unions do not collect data on whether members are foreign born or not, nor whether they are documented or not. Reliable data on foreign-born union membership rates are accordingly not available, but indications are that it is low.

According to representatives of both SACCAWU and COSATU, xenophobia among their South African members (but not among those in leadership) may dissuade foreign-born workers from becoming union members. Other reasons for low unionization rates include the inability of marginalized/isolated groups like farm and domestic workers to afford union membership, a lack of knowledge/awareness of unions and related labor rights, short-term/seasonal employment, etc.

A few unions/workers' organizations have been established to specifically respond to the needs of migrant and refugee workers. These include the Migrant Workers Union of South Africa, based in Johannesburg, which according to respondents mostly represents Zimbabwean-born workers in the hospitality industry and has an established relationship with SACCAWU. The Migrant Workers Union (according to respondents) has only about 300 active members (but 4,000 inactive members).

The South African Department of Employment and Labour has been ineffective in protecting or enforcing the labor rights of migrants and refugees.⁴¹

Migrants and Refugees in Self-Employment and the Informal Sector

The current legislative framework, implementation strategies, and economic context conspire to force a large portion of the documented and undocumented migrant population into the SMME and informal sector. The word "force" is used because studies (including this one) have indicated that migrants and refugees accept employment in segments of the economy where labor standards are violated or participate in the informal sector because they are unable (legislatively and in practice) to access decent employment opportunities.⁴²

Legal restrictions include the fact that neither the 1995 White Paper on the development and promotion of small businesses, nor the 1996 National Small Business Act acknowledge the concerns of migrants and refugees.⁴³ In general, municipal street-trading licensing and local economic development policies lack clarity on noncitizen rights or actively exclude them.⁴⁴

In practice, government hostility toward the informal sector in general and migrants in particular, is demonstrated through, inter alia:

• The launch of "Operation Hardstick" by the Limpopo Provincial government in 2012, which has been described as a military-style intervention targeting informal businesses, and which shut down over 600 businesses, detained shop owners and declared that refugees' and asylum seekers' permits did not entitle them to own or run businesses⁴⁵

• The removal of 6,000 street traders by the City of Johannesburg in 2013⁴⁶

• The prohibition on migrant- and refugee-owned spaza shops [informal convenience shops, often run from someone's home] in certain areas in Cape Town⁴⁷

These policy and implementation approaches do not reduce migrant and refugee activity in one of the only economic sectors open to them, and upon which their survival depends. They merely increase vulnerability and criminalize the kind of economic activity that could contribute to employment creation and economic growth in South Africa.

The socioeconomic, cultural and political context is also filled with challenges that prevent/reduce success in the informal/SMME sectors. These challenges are exacerbated for migrants and refugees. Exposure to crime and violence is one such challenge. A 2016 study on crime and violence focusing on spaza shops found that "running a spaza shop is extremely dangerous." A spaza shop owner is 46 times more likely to be murdered than the national average. A Somali spaza shop owner is 100 times more likely to be murdered.⁴⁸

Small businesses owned by migrants and refugees have also been the target of some of the most violent and persistent spates of xenophobic attacks in the preceding decade. Several studies have highlighted the existence of xenophobia towards migrants in South Africa, and the antagonism towards migrant small business and shop owners in particular.⁴⁹

Other challenges include an inability to access South African financial services, and police harassment.

Despite these many barriers and challenges, research suggests continued success by migrant and refugee small business and shop owners. Although the underlying reason for their success is probably that no alternative option for survival exists, researchers have identified factors that contribute to migrant and refugee successes in the informal sector.

Refugees in the Cape Town and Limpopo study were also four times more likely to want to contribute to the development of the South African economy. Those in the Johannesburg study also scored high on the indicator for social capital and the desire to provide employment for others.⁵⁰

The Cape Town and Limpopo study also revealed important differences between South Africans and migrants that may explain the perceived successes of migrants in the informal sector. Refugees were three times as likely to emphasize the importance of support from others in starting a business, were twice as likely to have the entrepreneurial qualities mentioned by the study and were most likely to work in household product retail and personal services. These may be the factors that contribute to migrant success despite the fact that South Africans have more business experience and have been in business for longer.⁵¹

The anti-informal sector/SMME approach is contrary to national economic and development policies and standard economic development theories. The consensus among national policy documents and many economists is that the informal/SMME sector is key to job creation and economic growth in South Africa. The National Development Plan, for example, proposed the creation of 2.1 million jobs through the informal sector.⁵² The Western Cape and Limpopo study⁵³ also found that almost 50 percent of refugee-owned informal sector businesses have paid employees, compared to 21 percent of those owned by South Africans. A study conducted among 131 Angolan migrants in Cape Town found that 20 percent of the participants had their own businesses, and slightly more than half of them employed South Africans.⁵⁴

Contributions are also made in other ways. The Western Cape and Limpopo study also found that refugee entrepreneurs were more likely to rent business premises, and in the study sample 60 percent paid rent to South African landlords, and a further 13 percent to local municipalities. By comparison, approximately half of the South African business owners operated their businesses rent free.⁵⁵ In Johannesburg, 31 percent of migrant business owners paid rent to South Africans. The Johannesburg study also demonstrated that migrant-owned businesses were growing. Although almost 60 percent started businesses worth ZAR 5,000, 52 percent had increased their business value to ZAR 20,000 at the time of the research.⁵⁶

Foreign-born business owners, therefore, are contributing to the economy by growing their businesses, generating employment, investing in the economy, renting business property, and paying operating licenses to local governments. It can, however, not be denied (and therefore it must be managed) that the influx of documented and undocumented migrants into the informal sector creates competition for South African business owners, and this contributes to xenophobia.

The Effect of Migrant Labor on the South African Economy and Employment Rates

Policy decisions, intervention design, government responses, and advocacy on migration in South Africa are influenced to a large extent by the debate on whether migration has a positive/negative/no impact on the South African economy (i.e., on unemployment rates and wages). The data available on South Africa and the developing world is not sufficiently accurate or valid to answer this question definitively, but there is enough data to suggest which interventions and policy decisions are likely to contribute to the greater good.

There is empirical evidence to show that migrants active in South Africa's informal sector are creating jobs and infusing money into local economies by inter alia paying rent.⁵⁷

A report by the Organisation for Economic Cooperation and Development (OECD) claims that the "impact of immigration on gross domestic project [GDP] per capita [in South Africa] is positive and the estimates from an econometric model show that immigrant workers may raise the income per capita by 5 percent."⁵⁸ This argument is based on econometric analysis of income statistics across two censuses which suggest that foreign-born workers account for 8.9 to 9.1 percent of the GDP, whilst their share of the employment sector is lower. However, the authors note that the economic activities of foreign-born workers are not recorded separately in the censuses, so their contribution was indirectly deduced.⁵⁹

There is empirical data demonstrating high skills levels among the refugee community. There is also empirical evidence demonstrating that South Africa has a skills deficit in many areas of the economy and that young and skilled individuals are leaving the country in increasing numbers. The Community Survey 2016 conducted by Statistics South Africa shows that approximately 102,793 mostly young (aged 22—30) skilled and educated South Africans left the country between 2006 and 2016. The figures also suggest that the trend of skilled emigration has increased with 8.8 percent of the total leaving in 2013, rising to 11.1 percent in 2015 and 25.7 percent in 2015.⁶⁰

There are also studies stating that migration has negative effects. One of the most comprehensive and methodologically sound studies was completed by Facchini et al in 2013⁶¹ using census data from 1996, 2001, and 2007. Their key findings are:

• At the district level, immigration has, on average, a large and negative impact on South Africans' employment rates (i.e., a 10 percent increase in migrants of a specific skill group results in a 7.2 percent decrease in the employment rates of South Africans).⁶² The negative effect held true for employees and self-employed South Africans.

• The negative effect at the district level was higher for medium to highly skilled South African workers, and white South Africans were more adversely affected by immigrant arrivals. This suggests that migration contributes to transformation and restructuring of the racial economy of the past.

• A 10 percent increase in immigrants with primary-school education results in a 5.2 percent reduction in the employment rate for South Africans with a primary-school education. The respective figure for individuals with a university degree is an 8.9 percent reduction.⁶³

• At a national level, increased immigration has an undetermined effect on the rates of employment of South African workers.

• At a national level, increased immigration results in increased self-employment among South Africans. The data shows that increased migration has forced South Africans out of formal employment and to move to other geographic areas where fewer migrants are situated.

• At a national level, increased immigration has a significantly negative effect on the incomes/wages of South African workers.⁶⁴

Research by Broussard 2017 that considered the unique characteristics of developing and middle-income countries and that disaggregates the data by race found that immigrant inflows decreased the employment to population ratios and total annual income of black South Africans in the formal sector. The same negative effects did not take place in the informal sector.⁶⁵ The study found the same intersectoral displacement cited in the Facchini study, but for black South Africans. The statistically significant results show that for black South Africans (male and female) the composition of the employed labor force shifted to the informal sector. The study also concluded that increased immigration has significant negative effects on South Africans and the South African labor market outcomes.⁶⁶

IV. Key Legislation

This section of the report provides a brief overview of the international, regional, and national legislative framework. Only key pieces of legislation are discussed; the rest can be found in Addendum A of the main report.

International

There is an extensive international policy and legal framework that seeks to protect migrant and refugee rights, but it has a limited effect in the South African context. International declarations are not legally binding, and nation states often fail to adhere to their contents. International conventions are legally binding and carry legal and political authority, but many are not ratified, or when they are, South Africa is not a signatory. The same limitations apply to the African and regional legislative framework. These laws and polices come from various international sources such as the UN, the International Labour Organization (ILO), and UNHCR. For a full list of the agreements that the report found relevant to South Africa, and whether South Africa has ratified the agreements or not, please check the full report.

African

The Report also lists some of the international (on the continental scale), agreements that involve migrants, labor or basic human rights that may be applicable to the migrants they studied. For the full list of the agreements and instruments in place, please check the full report.

Southern Africa (Regional)

The report discusses how the SADC Secretariat position appears to be towards free movement and support for labor migration linked to economic development. It discusses how the Secretariat has several policies and instruments to encourage free movement and regional protection of the rights of migrant workers and has lists of examples. They also comment on the preference of SADC nations to bilateral agreements rather than blanket regional agreements. They theorize that, at least in the case of South Africa, this originated from the bilateral agreements regulating the migrant mineworkers from the 1990s-2000s. They then conclude with a few regional instruments that seek to protect the social, political and socioeconomic rights of migrants, such as the SADC Charter of the Fundamental Social Rights (2003).

South Africa (National)

As per annual reports from 2007 to 2010, the South African Department of Home Affairs bases its (im)migration policy on three pillars. These are: to link to regional development policies, a commitment to a human rights-based approach, and the sovereignty of South Africa in the fight against illegal migration and the promotion of border security.⁶⁷

The pillars sound progressive, but subject experts have argued that, despite a policy content that is intended to "harness" the growth opportunities migration can present, the South African government "is prioritizing restrictive measures that disproportionately and negatively" affect African migrants.⁶⁸

What follows are some cases of analysis of the key pieces of national migration and refugee legislation. For the full list of legislation and short descriptions, please check the full report.

1. Aliens Control Act of 1991: Replaced in 2002 but was important in its time.

2. Constitution of the Republic of South Africa, No. 108 of 1996: The Constitution, specifically states that "South Africa belongs to all who live in it, regardless of legal status or nationality."

   Its Bill of Rights guarantees traditional human rights, as well as the progressive realization of socioeconomic rights to all who live in South Africa. Services include basic health care, education, housing, sufficient food and water, and social security to those who are unable to support themselves or their families. Of further importance is section 2.2 of the Bill of Rights which makes "fair labour practices" applicable to "everyone" in South Africa, irrespective of citizenship or legal status.⁶⁹ Further, section 23(1) stipulates that "everyone has the right to fair labour practices."

3. Refugees Act of 1998: The Act has since been amended but is important to discuss given its progressive and contradictory content. Recognized as one of the most progressive such statutes in the world,⁷⁰ it came into force in 2000 and sought to formalize the asylum-seeking process in South Africa. The Act provides that refugees are entitled to "virtually the same rights as citizens," excluding the right to vote. Some argue that this encourages migration and applications for asylum, but the report found that when looking at the practical situation instead of the theoretical, many migrants found themselves in destitute situations despite what they are theoretically entitled. It is also important to note that asylum seekers are not entitled the right to work, but there is also no legislation that directly blocks them from working either.

4. Private Security Industry Regulation Act 56 of 2001: The Act specifically prohibits refugees and asylum seekers from working in the private security industry.⁷¹

5. Immigration Act 13 of 2002: The Act covers conditions for entering South Africa for stays exceeding 90 days and for the purposes of taking up employment. The Act also does not permit entry to traders or job seekers. The Act can therefore be interpreted to discourage migration of low-skilled migrants.

6. Immigration Amendment Act of 2004: Regarding work, the Immigration Act 13 of 2002 (above) and this 2004 amendment promote immigration of highly skilled individuals and investors. They introduce four categories of work permits (quota, general, exceptional skills, and intercompany transfers), business permits, and a variety of entry categories that do not allow foreigners to work.⁷² It has also been noted that more work permits are being allocated to Europeans, Americans, and Asians (i.e., not Africans).⁷³ As such, the OECD has argued that the Immigration Act of 2002 as amended is a continuation of the Aliens Control Act, which creates a "dual system of limited permanent high-skilled immigration and temporary lower-skilled migration, mainly through corporate permits."⁷⁴

7. Immigration Amendment Act 13 of 2011: The Act reportedly aims to facilitate the free movement of people and goods, and an exchange of skills by streamlining application processes for temporary visas, business and study permits, and related documents.⁷⁵ In reality, the act does not hinder high-skill workers while hindering the movement of low- or unskilled workers. A general work permit is only considered if employers can demonstrate that no South African has comparable qualifications and experience.

8. The Social Assistance Act 13 of 2004: The Act responds to the constitutional imperative that everyone has the right to have access to social security and appropriate social assistance. However, the Act explicitly restricts social grants to citizens. In 2012 access was extended to recognized refugees but not to other categories of migrants. The Foster Care Grant is open to foster parents of any formal legal status including refugees.⁷⁶

9. White Paper on International Migration 2017: The White Paper sets out to guide a comprehensive review of immigration legislation across eight areas: admissions and departures, residency and naturalization, international migrants with skills and capital, ties with South African expatriates, international migration within the African context, asylum seekers and refugees, integration processes for international migrants, and enforcement.⁷⁷ The paper includes an entire chapter on managing migration in the African context. The chapter proposes various, arguably progressive, policy interventions. On the other hand, the White Paper proposes "asylum processing centres" that will operate at land borders to manage and reduce migrant flows, thereby also "reducing system costs." The Department of Home Affairs argues that "by reducing the incentive for abuse by economic migrants, the asylum system will be transparent and responsive." Critics have argued that these will, in effect, be detention centers and that the South African government cannot afford construction of these centers.

10. The Border Management Authority Act of 2017: This law states as its purpose the protection of South Africa's territorial integrity, essentially by improving border security, and its core functions pertain to customs administration, policing, and management of the movement of persons.⁷⁸

11. The Refugees Amendment Act 11 of 2017: Signed into law on 14 December 2017, the Act has many specified goals (see full report for list). In Parliament the rationale given in support of the Act was to "tighten-up" existing legislation to address "abuse of the asylum system" and "corruption" and ensuring "increased efficiency" in the relevant workforce.⁷⁹ These are all serious issues that require redress, and in many instances the Act legitimately attempts to do so. However, based on the findings of this research, many of the amendments are likely to achieve the exact opposite.

    Regarding exclusions from refugee status, the following persons are excluded: persons guilty of war crimes, torture and related activities; persons who committed serious (non-political) crimes; and persons who have refugee status or protection in other countries. Of concern is that the following types of persons are also automatically excluded:

    • A person who "has committed an offence in relation to the fraudulent possession, acquisition or presentation of a South African identity card, passport, travel document, temporary residence visa or permanent residence permit."⁸⁰ As the analysis from the findings of the research study will show, and as documented in various additional pieces of research,⁸¹ asylum seekers, refugees, and (undocumented) migrants in South Africa are often forced to use (i.e., survival depends on using) documentation "fraudulently."

    • A person who has "entered the Republic, other than through a port of entry, and fails to satisfy a Refugee Status Determination Officer that there are compelling reasons for such entry"; or "has failed to report to the Refugee Reception Office within five days of entering into the Republic."⁸² As the personal accounts that follow in the findings section of this report demonstrate, compliance to these requirements are literally impossible for individuals fleeing political conflicts and war.

    The arguably unconstitutional sections of the Act are:

    • Section 22 (6): "An asylum seeker may be assessed to determine his or her ability to sustain himself or herself, and his or her dependents, either with or without the assistance of family or friends, for a period of at least four months."⁸³

    • Section 22 (7): "If, after assessment, it is found that an asylum seeker is unable to sustain himself or herself and his or her dependents, as contemplated in subsection (6), that asylum seeker may be offered shelter and basic necessities provided by the UNHCR or any other charitable organization or person."⁸⁴

    • Section 22 (8) "The right to work in the Republic may not be endorsed on the asylum seeker visa of any applicant who —

      • (a) is able to sustain himself or herself and his or her dependents as contemplated in subsection (6)

      • (b) is offered shelter and basic necessities by the UNHCR or any other charitable organization or person, as contemplated in subject (7) or

      • (c) seeks to extend the right to work, after having failed to produce a letter of employment as contemplated in subsection (9): provided that such extension may be granted if a letter of employment is subsequently produced while the application in terms of section 21 is still pending."⁸⁵

    • Section 22 (9) "In the event that the right to work or study is endorsed on the asylum seeker visa, the relevant employer, in the case of a right to work, and the relevant educational institution, in the case of a right to study, must furnish the Department with a letter of employment or of enrolment at the educational institution, as the case may be, in the prescribed form within a period of 14 days from the date of the asylum seeker taking up employment of being enrolled, as the case may be."⁸⁶

    • Section 22 (11) "The Director-General must revoke any rights to work as endorsed on an asylum seeker visa if the holder thereof is unable to prove that he or she is employed after a period of six months from the date on which such right was endorsed." ⁸⁷

    • Gastrow and others⁸⁸ argue that the Act, by not mentioning any form of employment other than through an employer, also prohibits asylum seekers from operating businesses in South Africa.⁸⁹

    In terms of Section 27, applications for permanent residence can now only be submitted after ten — as opposed to five — years of residence in South Africa (starting from the date asylum was granted).

    Overall, the Amended Act, as various subject experts have argued, seems to have the "implicit goal" "to make South Africa a significantly less desirable destination for asylum seekers."⁹⁰ Specifically, the legislation curtails the rights to asylum seekers to work and to access social protection in South Africa.⁹¹

12. National Development Plan 2030: The plan emphasizes the importance of attracting and supporting "high-value"/highly skilled/high net-worth im(migrants). The document also calls for the adoption of a "more progressive migration policy for skilled and unskilled workers."⁹²

In sum, the consensus in the literature is that despite what was until the 2017 Amendment to the Refugees Act, a progressive legislative framework theoretically aligned to a human rights-based approach and international human rights conventions, and with the exception of a number of amnesties discussed elsewhere in the report, implementation has been heavy handed or "punitive."⁹³ Most authors argue that the emphasis has been on arrest and deportation. The available statistics appear to support this view. Approximately 2.3 million people were deported in 2000, of which at least 98 percent were sent to other SADC countries.⁹⁴

Labor Legislation

Legal experts, backed by Constitutional and labor court rulings, argue that the labor-related legislation summarized below apply to all workers (i.e. irrespective of legal/ documented status or nationality).⁹⁵

1. The Occupational Diseases in Mines and Works Act of 1973 and the Compensations for Occupational Injuries and Diseases Act of 1993: The Acts apply to employment-related injuries and diseases in the mining sector.⁹⁶ They are administered through the Compensation Fund of South Africa but remain largely inaccessible to foreign-born workers in the mining industry who travel, do not have bank accounts, or are not traceable.⁹⁷

2. Basic Conditions of Employment Act 1997: The Basic Conditions of Employment legislates a set of legal minimum requirements for [decent] work for "all employees" in South Africa. In terms of section 1 of the Act, an employee is "any person, excluding an independent contractor, who works for another person or for the state and who receives, or is entitled to receive, remuneration."

3. Unemployment Insurance Act of 2001: The Act covers workers and their dependents against temporary unemployment due to termination of service, illness, or birth or adoption of a child. Short-term migrant workers and undocumented migrant workers are not covered by the Act.

4. Labour Relations Act 2002 (as amended): The Act gives effect to section 27 of the Constitution and applies equally to all members of the workforce. As such it seeks to:

   • regulate the rights of trade unions;
   • promote and facilitate collective bargaining at the workplace and at sectoral level;
   • regulate the right to strike and the recourse to lockout in conformity with the Constitution;
   • promote employee participation in decision making through the establishment of workplace forums;
   • provide simple procedures for the resolution of labor disputes through statutory conciliation, mediation, and arbitration (for which purpose the Commission for Conciliation, Mediation and Arbitration was established), and through independent alternative dispute resolution services accredited for that purpose;
   • establish the Labour Court and Labour Appeal Court as superior courts, with exclusive jurisdiction to decide matters arising from the Act;
   • provide for a simplified procedure for the registration of trade unions and employers' organizations, and to provide for their regulation to ensure democratic practices and proper financial control; and
   • give effect to the public international law obligations of the Republic relating to labor relations.

   The Act stipulates in Section 185 that "every" employee has the right not to be unfairly dismissed.

5. Commission for Conciliation, Mediation and Arbitration: The Commission for Conciliation, Mediation and Arbitration (CCMA) is a public body that hears labor disputes. In 2008, the CCMA officially interpreted the Constitutional and Labour Law provisions on fair labor practices to apply to undocumented labor migrants.⁹⁸

6. Labour Court: In 2008 the Labour Court confirmed the CCMA ruling in a case between a migrant and Discovery Health, by ruling that employers have the same duty of care to undocumented foreign employees as they have to South African citizens and that employment contracts are valid irrespective of whether an employee is an undocumented migrant.⁹⁹

7. Employment Services Act: In terms of the Act, employers may not employ anyone without a valid work permit.¹⁰⁰

8. Workman's Compensation: Temporary residents qualify for worker compensation.¹⁰¹

The above discussion demonstrates that, in theory, migrants and refugees in South Africa are protected and their working conditions are regulated. However, as discussions in the remainder of this paper will demonstrate, migrants — particularly undocumented migrants — and refugees are afraid (with good reason) to approach government and related institutions and are effectively unable to access their rights.

V. Research Findings

Summary of Key Findings

The results from the in-depth interviews (IDIs) and focus groups with migrants and refugees are discussed below. Key findings include:

• Although available literature and subject experts emphasize economic opportunity, social relationships, and other "pull" factors as drivers of migration to South Africa, the qualitative data generated in this study suggest that migration is a result of "push," rather than "pull" factors. The most likely reason for migration among the research population was war and political turmoil.

  • Approximately half of the respondents interviewed fled life-threatening situations in conditions of war or political persecution. These individuals mostly fled to South Africa with limited planning and without resources. Entry into the country was mostly undocumented. Once in South Africa, they are lost in an inefficient and abusive system that prevents them from getting refugee status for up to a decade. During this period, they are victims of xenophobia and discrimination, they are exceedingly poor and vulnerable, their dignity is compromised, and they cannot access secure employment, adequate housing, or basic services.

• For those escaping from war or political persecution, the experiences are harrowing, degrading, terrifying and traumatic. More so for women.

  • The migratory experience is different for women than for men for two key reasons. Men mostly migrate alone, and when they migrate with family members, they are accompanied by their partners/wives. None of the male participants migrated as single parents/caregivers with small children. Many of the women did. Further, women were far more likely to be victims of sexual violence or sextortion during the process.

• Migrants and refugees experience systematic human rights violations.

  • Most research participants cited persistent xenophobia as a constant source of fear and emotional distress. Many recounted incidents of violence, intimidation, or abuse. Xenophobia takes place at all levels of society in the streets, in schools, on public transport, in public spaces, and is also perpetrated by public officials including the police and the Department of Home Affairs.

  • Research respondents felt that the country of origin and the employment status (of the victims), and the socioeconomic status and racial profiles (of South African perpetrators) were factors that increased the likelihood of xenophobic incidents and attacks. Respondents felt they were more likely to be victims of xenophobia if they were employed and more so if they owned their own businesses. These perceptions align to the empirical evidence provided in the literature review.

• Research participants were generally able to access basic services like water, electricity, and public transport. For some, this was an improvement on conditions in countries of origin.

  • Migrants and refugees struggle to access adequate housing. For many, their quality of life in their countries of origin was better (before the onset of the push factors that drove them out).

  • Experiences with health officials and institutions are also negative, with xenophobic public officials refusing access.

• Few migrants and refugees send remittances to their countries of origin, and when they do, they do so inconsistently, and the amounts are negligible. Reasons include not having resources to spare and a policy-induced inability to access financial services.

• Working conditions were exploitative and degrading for most respondents, less so for those who are self-employed.

• The barriers to decent work (whether as employees or self-employed, small business owners) include: difficulty accessing the required documentation, which results from inefficiency, xenophobia, abuse, and corruption at the Department of Home Affairs and a hostile and impractical legislative and policy environment; being excluded from financial institutions; language barriers; inefficiencies in degree and other qualification recognition processes; xenophobia; and discriminatory legislation.

  • Migrants and refugees experience extensive abuse in their dealings with the Department of Home Affairs. Corruption is pervasive, and many are forced to participate in corrupt practices or to accept abuse in order to survive.

  • Migrants and refugees cannot open bank accounts, which means they also cannot save money, send remittances safely, access credit or start-up capital from formal institutions, secure employment in the formal sector (where no one pays cash), open clothing or other store accounts, or sign legitimate lease agreements.

  • The migrants and refugees who are unable to speak any of the 11 official languages and in particular English, are at a further disadvantage when trying to secure employment. Therefore, a first step is — aside from the attempts to obtain the relevant documentation — to learn English.

  • Qualifications are not automatically recognized in South Africa. Copies (or at times originals) have to be submitted to the South African Qualifications Authority (SAQA) for assessment, verification, and classification. This is a lengthy process.

  • Further to the generalized xenophobia experienced, migrants and refugees in employment or who own their own businesses are the targets of specific types of attack.

  • Discriminatory legislation, including the Private Security Industry Regulation Act 56 of 2001, is preventing migrants and refugees from accessing some of the very few employment options previously available to them.

• It is exceedingly difficult for migrants and refugees to access employment in the formal sector or wage-based employment in the informal sector of the South African economy.

  • Those individuals who, despite tremendous obstacles, have succeeded in starting and running microenterprises listed the following as the factors that contributed to their success: hard work; desperation; ingenuity; personal sacrifice; assistance from certain South African communities; and social capital.

• Migrants and refugees interviewed are more likely to be employed in low-skilled jobs where they are vulnerable, exploitable/exploited, paid minimum wages or less, or where labor legislation is flouted.

  • Many are pushed into informal employment.

  • Employment status is not correlated with educational achievement, but rather is correlated with type of permit/documentation.

• Regarding rights awareness, although labor legislation in South Africa applies equally to migrants (documented and undocumented) and refugees, 40 percent of research participants were not aware of their labor or any other rights (and were therefore not able to access their rights). A further 40 percent were aware of their rights but because of fear were not able to actualize their rights.

  • The research also suggests widespread employer noncompliance with labor legislation, which in part stems from a lack of knowledge and the bureaucratic and other barriers to compliance.

• Being a woman exacerbates suffering and increased challenges in every aspect of the migrant and refugee experience. Additional trauma stems from sexual violence, the sex "trade," sexism within the religious institutions from which they seek support, childcare responsibilities, and dependency.

Drivers of Migration

Drivers of migration differ based on country of origin, conditions in respective recipient countries, and historical time periods (i.e. sociopolitical/conditions of the time). The following drivers of migration were identified based on the literature review and interviews with subject experts: economic factors, political turmoil and war, familial and social relationships, environmental degradation, access to infrastructure and resources, progressive laws as pull factors, accessibility, poverty, and human trafficking.

Economic factors: The literature and interviews with subject experts suggest that migration in Southern Africa is driven mostly by economic factors.¹⁰² As such they tend to argue that most migrants to South Africa are "economic refugees" or "labour migrants." A household survey of migrants in Cape Town and Johannesburg, for example, found that 90 percent of respondents listed "getting work" as one of their reasons for migrating.¹⁰³ Further, the quarterly labor force survey of 2012 estimated that 1.2 million people migrated to South Africa in the preceding five years. Their reasons for moving provided were (in rank order): to access secure employment opportunities (34 percent), to look for work (26 percent), to join family (28 percent), to access education (6 percent); 6 percent cited "other" reasons.¹⁰⁴

Political turmoil and war: Political turmoil and war are also drivers of migration. In recent years, political violence, repression and instability (mostly coupled with economic decline) have promoted migration from Cameroon, the DRC, Congo Brazzaville, the Horn of Africa, and Zimbabwe into South Africa.¹⁰⁵

Familial and social relationships: The literature review further indicated that migration occurs for familial and relational reasons. According to Dodson et al. 2015, even the attempt to distinguish between individual and family migration is problematic as "individual migration in the region is commonly undertaken as a family strategy."¹⁰⁶

Environmental degradation: A minority of authors identified environmental degradation and natural disasters as drivers of migration to South Africa.¹⁰⁷ A few of the academics interviewed pointed to the "consequences of climate change" and "droughts" as drivers of migration.

Access to infrastructure and resources: There is also literature to support the argument that lack of, or the likelihood to, access infrastructure, basic services, health care, and other social resources encourage migration to South Africa.¹⁰⁸

Progressive laws as pull factors: Various government policies and papers have argued that some of the progressive laws the country had in the recent past (i.e., the Refugees Act prior to amendments), encouraged migration. These authors cite refugees' and — formerly asylum seekers' — rights to work and study, and the absence of refugee camps as pull factors.

Poverty: Poverty is a factor that underlies all the drivers listed above. It is likely that, with the exception of those fleeing war and political unrest, the majority of migrants to South Africa are driven, at least in part, by poverty. In the Johannesburg and Cape Town household surveys, for example, 44 percent of migrants cited hunger and food shortages as reasons for their decision to migrate to South Africa.¹⁰⁹

Accessibility: African migration to South Africa is mostly overland, making South Africa more accessible to migrants from Africa than other continents are. As one academic explained: "For many, this is the final destination; for those of means, this is a transit point to Europe or America."

Victims of human trafficking: The International Organization for Migration (IOM) deals extensively with human trafficking (either for cheap labor/slavery or the sex industry). Human trafficking falls outside the scope of this assignment, but it is worth noting what a subject expert explained: "The number of people trafficked for sexual and labor exploitation is astounding. This includes women from almost everywhere, sold by their families or drug dealers or members of organized crime syndicates, fishermen from South East Asia, and factories in KwaZulu-Natal who literally buy slaves. It happens on farms too through so-called labor brokers."

The results from the qualitative data collection process completed for this assignment largely align with the identified drivers of migration but elevate the likelihood of migration as a result of political unrest or war. Broadly, the data shows that migration is a result of "push," rather than "pull" factors.

Economic factors: Only approximately 15 of the respondents interviewed came to South Africa to find work. Predictably, the 12 female participants in the domestic workers' focus group have all migrated to South Africa to access employment, given the absence of employment opportunities and extreme poverty in Lesotho. Most of the respondents who said they came here for work explained that their families remained in their respective countries of origin. The women from Lesotho reported that although some members of their extended families were living in South Africa, they had left their immediate families (i.e., children and partners) in Lesotho (i.e., their primary motivation was to access work and not familial or social relationships).

It also emerged from the interviews among this group of work seeking (and employed) migrants, that the dreams they had for improved socioeconomic status through migration to, and employment in, South Africa, were shattered. What the accounts provided by respondents make clear is that migration for economic reasons is generally not "opportunistic" or motivated by attempts to "gain better employment opportunities." Rather, these are acts of desperation, like the Basotho mothers attempting to save their children from starvation. The term "economic refugees" is therefore, considered more applicable than "labor migrant."

Political turmoil and war: Approximately half of the respondents interviewed fled life-threatening situations in conditions of war or political persecution. Once in South Africa, they are lost in an inefficient and abusive system that prevents them from getting refugee status for up to a decade. During this period, they are victims of xenophobia and discrimination, they are exceedingly poor and vulnerable, their dignity is compromised, and they cannot access secure employment, adequate housing or basic services. Some of their harrowing accounts include:

• It was the war in 2017. We were warned that the soldiers were coming to our house because my dad was a well-known politician. We knew we were going to be killed. My parents ran. I don't know what happened to them. I also ran, but the soldiers raped me. Then I ran again when I could walk, and I found a way to come here.

• My husband was a soldier in the forest, a personal bodyguard to the big guy in the war, but then when things changed, he had to run. He came in 2005. If they find him, they will kill him. We can never go back. He escaped first. I followed on foot, with my two children, in 2006. All my family were killed in the war; I didn't have anybody but him so I came. But now I have this baby with the heart operation, and we have no work and no food. We can't survive, but we can't go back. What can I do? Tell me, what can I do?

• I came here alone. I left because of the war. I was living in the provinces, but they came, and they destroyed everything. I lost everything. I had to run and leave everything. I saw my house burn. It was very terrible. I try not to think about it. I have not talked about it until you asked me now. I would like to go back, but it isn't possible. My wife came three years later with my child.

Familial and social relationships: Very few respondents cited social or familial relationships as their primary motivation for moving to South Africa.

As indicated in the previous section, women did follow their partners to South Africa, but this was not their primary driver for migration. They would not have come if their husbands had simply been in South Africa to access employment and/or to send remittances home. They came because they were fleeing a war. The male migrants who said they were in South Africa to find employment or economic opportunities came alone. Their families have not joined them. They also did not join family members already living in South Africa.

Similarly, the families of Basotho women did not follow them to South Africa, although Basotho networks have been established in South Africa for mutual assistance. The women described their inability to see their children more than a few times a year as source of perpetual grief.

Further, many migrants/refugees said that they had left their country of origin after they had lost some, or all, of their family members.

What the data suggests, therefore, is that social capital (i.e., community or nationality-based support) is a consequence, rather than a cause, of migration. Further, migration for familial or social relationships is a secondary, not a primary, driver of migration.

Progressive laws as pull factors: Although this was never cited as a reason or motivating factor for migration by any of the interviewees, some did feel that progressive laws may have been a factor for migrants and refugees who did not participate in the study. Life in South Africa was considered safer than life in refugee camps. Refugee camps were described as dangerous and "life-threatening" places.

Access to education and basic services: The majority of migrants and refugees interviewed did not migrate to South Africa to access education or other basic services. The few respondents who migrated to South Africa to access educational opportunities/facilities or health services were comparatively well-off individuals, and their entries were documented.

Other: Although drivers of migration clearly overlap, and most are underscored by poverty, none of the other drivers of migration identified in the literature or by subject experts were mentioned by research participants. Research participants, did, however, identify drivers that are not included in the literature perused. These include personal trauma/grief and inadvertent migration. Others had no intention of staying in South Africa but have been trapped here by circumstances beyond their control and a dysfunctional system.

The Migratory Process

Excluding the comparatively well-resourced research participants who entered South Africa with work, study, or medical permits; by air; or on two-day bus trips costing about ZAR 2000, the migrants and refugees interviewed for this paper entered the country "illegally" (i.e., irregularly). For some (i.e., the Basotho women) the migratory processes to follow are well established and uneventful. For others, the experiences are harrowing, more so for women.

According to one research participant, crossing the border between South Africa and Lesotho (in either direction) does not require any visas or permits: "What you need is about ZAR 1000 because there are several bribes you have to pay to get in or out. You usually pay ZAR 270 to the taxi driver who brings us in, and he pays the police a bribe if they stop us. Sometimes there are some other bribes to pay, especially with the police."

There are similar arrangements in place for migrants from other Southern African countries. One research participant noted: "There are busses going from towns in my country to Johannesburg and then to Cape Town. You pay the bus driver, and he deals with border officials and then the whole bus just goes through. ... You only pay the one amount to the driver, and he sorts it out. It was very expensive. I could not speak English, but somebody else helped me."

For migrants and refugees from war-torn countries, the migratory process is horrendous, degrading, and terrifying.

We didn't know how to get out of the country, and we were running for our lives, so it was illegal [irregular], but we just walked to the border. At the border they just said, "Give us money." We gave then ZAR 150 each. Then they said to wait. At 2:00 a.m., they put us in a car and drove somewhere, then they dropped us in a forest in the dark. There were two of us. We heard animals, but it was so dark we could not see, so we just sat in the same place and waited until morning. Some guy approached us in the morning; he wanted more money. I gave him the last ZAR 40 I had hidden in my shoe because he was getting aggressive. He walked us to the Limpopo River. The water was low, but I was very afraid. There was another guy waiting on the other side of the river. He took us to the razor wire and the tar road. Then he just turned back. I crawled through the razor wire, but my husband got stuck and cut up. He told me to run, but I didn't. I went back, and I unplugged him. A truck of soldiers passed us. I was very scared. But they didn't see us. We just walked along the path. It was so scary. We saw skeletons with clothes on and dead people eaten by animals. We kept walking until we reached Mussina. (Research participant)

The migratory experience is different for women for two key reasons. Based on the sample for this research, men mostly migrate alone (without family members). When they migrate with family members, they are accompanied by their wives. None of the male participants migrated as single parents/caregivers with small children. Many of the women did. Further, based on the accounts of the research participants (which may include under-reporting among men), women are far more likely (almost exclusively) to be victims of sexual violence or sextortion.

Why Cape Town?

Respondents were also asked why they settled in Cape Town (i.e., in the focus area of this study). As the preceding discussions and personal accounts suggest, locating in Cape Town was an arbitrary decision for most respondents. Others had come to join their husbands or families, but the husbands or families had also settled in Cape Town due to the unpredictable nature of the migratory process or lack of knowledge of the geography and economic sectors of South Africa. Once settled, they are very reluctant (or find it impossible) to move. Most had never left Cape Town nor been to any other South African city, excepting times spent travelling to Cape Town or a few days in transit in Johannesburg or Mussina.

One academic believed migrants move to Cape Town because administrative and police capacity in the city of Cape Town is lower than in Johannesburg. Most non-migrant respondents believed that Cape Town was chosen as a destination because the hospitality and tourism industries are likely sectors for employment. This may be true, but none of the respondents interviewed for this study had considered employment in these sectors as a reason for settling in Cape Town.

Some believed migrants and refugees chose Cape Town because they perceived it to be safer, either in terms of lower crime rates or fewer instances of xenophobia, but there was also no evidence of this based on the interviews completed for this study.

Life in South Africa

Life in South Africa involves "bureaucratic nightmares," discrimination, violence, xenophobia, and a lack of access to services for unskilled, undocumented migrants, refugees, asylum seekers, as well as for skilled and formally employed migrants.

Xenophobia

Statistics from a 2010 survey of South African attitudes towards migrants reflect high levels of xenophobia. For example, 90 percent of participants felt there were too many foreigners living in South Africa. Eleven percent reported they would be prepared to use violence to prevent a foreigner from moving into their neighborhood. Sixty percent believed migrants were taking jobs from citizens. Most respondents felt that irregular migrants did not deserve basic legal rights and police protection.¹¹⁰

All of the research participants, other than the group of Basotho women, stated that they faced persistent xenophobia in the form of violence or emotional abuse. Respondents felt targeted based on their employment status and country of origin and felt safer living in wealthier, "white" neighborhoods, even when they could not afford to. Respondents did provide some recommendations for combatting xenophobic attitudes, such as educating South Africans on the ways in which migrants and refugees can add to their society.

Accessing Services (Health and Housing)

Basic services such as water, electricity, and transportation were available to most respondents. However, housing is more difficult to access due to barriers such as xenophobia, poverty, and unemployment. Some respondents reported living in wealthy suburbs they could not afford due to the lack of safety in the city.

Accessing the health system in South Africa proves to be an ongoing challenge for migrants and poorer South Africans. Along with issues of systematic discrimination and xenophobia, among health officials there is a lack of sufficient knowledge and/or awareness of the rights of migrants and refugees. For example, all migrants and refugees have a right to access life-saving medicines such as antiretroviral drugs, but public health officials and the migrants seeking them were not aware of this right. Some respondents reported having to resort to bribery or using false documents to access health services.

Access to education is difficult as many migrants with children are denied access to public schools and thus are forced to pay for expensive private schools they cannot afford. Public schools were reported to have expensive fees and a low quality of education.

Remittances

Remittances make up the largest share of household budgets in migrant-sending homes in Lesotho. They are usually in the form of food or money spent on food, housing, or fuel. Based on the study, very few migrants and refugees send remittances to their home countries. This is due to many of them not having any family left or not having access to a bank account with which to send or receive remittances.

Working in South Africa: Barriers to Employment/Self-Employment

Testimonies of the research participants help to shed light on the different employment processes in South Africa faced by migrants and refugees, especially in low-paying and exploitative sectors.

Barriers to Employment/Self-Employment

Barriers include difficulty accessing proper documentation, exclusion from financial institutions, language barriers, xenophobia, lack of recognition for degrees and qualifications, and discriminatory legislation.

Accessing the Required Documentation

The asylum seeker/refugee system in South Africa is corrupt and results in a prevention of access to legal documentation. Statistics from the Department of Home Affairs state that the Department rejected 92 percent of decided asylum applications (25,713) and approved 8.8 percent (2,267) in 2017.¹¹¹ Widespread corruption has been reported within the Department of Home Affairs. A subject expert stated: "The corruption in South Africa is so pervasive it occurs at every level. Migrants and refugees have no trust in the system and have given up on justice. They just do what they need to do to survive. And all of this corruption results from this inefficient asylum system where they don't have a different visa for workers from SADC or something like that." There is empirical evidence to back up claims of corruption as well. In 2016-17 there were 1,232 litigation cases brought up against the Department of Home Affairs on immigration and 1,900 cases involving asylum. The Department also estimated 85 percent of its employees to be involved in corrupt practices.¹¹²

Inability to Access Financial Institutions

Barriers to opening bank accounts exist for asylum seekers, refugees, and labor migrants. Undocumented migrants are unable to legally open bank accounts. Without access to financial institutions, migrants are unable to safely save their money, access formal employment, or obtain loans or credit. Many of these issues are stemming from the 2017 Refugees Amendment Act, which led to major banks refusing to open accounts for refugees and asylum seekers.¹¹³

Language Barriers

Finding work is more difficult for migrants and refugees who cannot speak English or one of the 11 official languages in South Africa. Migrants interviewed stated that organizations that provided English lessons were invaluable to them.

Nonrecognition of Qualifications and Inefficiencies in the System

South Africa does not always recognize qualifications and certificates acquired in other African countries or abroad, and such qualifications must be processed and reviewed through the South African Qualifications Authority (SAQA). The interviewees who were able to get their qualifications recognized had entered South Africa for school, had work permits, or were assisted by civil society organizations.

Xenophobia

Many migrants and refugees face generalized forms of xenophobia. Along with this, small business owners face xenophobia when starting businesses in "white" and/or affluent areas. One research participant noted: "My biggest challenge is also the community. When I do well, they attack me and do things like cause trouble with my landlord."

Other Discriminatory Legislation

An example of discriminatory legislation is the Private Security Industry Regulation Act 56 of 2001, which prevents foreign nationals from working in the security sector. In this regard, one research participant reported: "In Parow, most of the security guards were foreigners. Then they fired all the foreigners because of the new law which said they must hire mostly South Africans. The bosses still prefer the foreigners because we work hard. South Africans only want comfortable jobs."

Accessing Employment (and the Factors That Contribute to Success)

Respondents were asked to describe how they gained employment. Some factors that contributed to their success included: targeted assistance from civil society organizations, churches and soup kitchens; individual South Africans who provided employment opportunities or other assistance; social networks; and personal characteristics including determination, work ethic, ingenuity, humility, and education.

Succeeding in Small Businesses

When asked which factors allowed individuals to succeed in establishing small businesses, they stated factors such as hard work, desperation, ingenuity, personal sacrifice, assistance from South African communities, and social capital.

Conditions of Employment

Migrants and refugees are found to be employed in occupations that require less skill, resulting in exploitation along with payment at or below the minimum wage and a lack of legal protection. Employment cannot be correlated to the qualifications of the migrant but instead to which type of documentation or permit they have. Asylum seekers and undocumented migrants are found to have the hardest time finding work when compared to refugees and migrants with work permits or residency.

High-Skilled Migrants and Refugees Employed in the Formal Sector

High-skilled migrants, particularly teachers, have an easier time finding jobs but do not qualify for certain social protections and benefits. Some foreign-born teachers reported experiences of racism and xenophobia within the South African school system.

Migrants and Refugees in the Hospitality Industry

Based on qualitative research studies in the hospitality sector, employers describe a preference for employing migrant workers due to their work ethic, language skills, and higher levels of education. The preference for foreign-born workers may also be due to their willingness to accept low wages and poor working conditions. Along with lower wages, foreign employees must often work longer hours and do not have formal work contracts or are on short-term/part-time contracts.¹¹⁴ Undocumented migrants are found to face the highest levels of vulnerability and exploitation in this sector.

Migrants and Refugees in the Construction Sector

According to the subject experts interviewed, migrants working in construction usually do not receive contracts, and therefore their wages often vary and are less than South Africans. However, research participants disagreed: "No, in the construction sector everybody knows that the wage is when you start. Everybody gets paid the same." Employers in the construction industry noted that they preferred migrant workers but found it difficult to hire them due to standards of the Department of Labour: "We get inspections from the Labour Department, and then we have to pay fines. It is also difficult because injuries are common, and we can't register the illegal guys for worker's compensation. That is a problem because we cannot carry those costs."

Migrants and Refugees in the Agricultural Sector

The South African Human Rights Commission has found that human rights violations occur in the agricultural sector. Some issues include the denial of basic labor rights, low wages, long working hours, poor living conditions, and a lack of safety measures.¹¹⁵ There have also been a few documented cases of abuse and murder. The subject experts interviewed explained that by hiring temporary workers through labor brokers, employers were able to avoid compliance with labor laws. Farmers working in informal arrangements don't receive benefits such as pension, maternity leave, UIF, etc.

Migrants and Refugees in Day Labor/Piece Jobs

"Day laborers" refers to individuals who look for new work on a day-to-day basis, often in the construction and agricultural sectors. This results in day laborers being vulnerable and exploited like in other categories of informal employment. Usually they are paid in cash and receive no social protections or benefits.¹¹⁶ Out of desperation, these laborers often accept extremely low wages.

Migrants and Refugees in Domestic Work

A study on domestic work in Gauteng conducted in 2018 by Oxfam South Africa found that:¹¹⁷

• Employers in domestic work often do not comply with the Basic Conditions of Employment Act.

• The average monthly salary for domestic workers in Gauteng is ZAR 2,403. However, the average domestic worker was found to spend ZAR 549 per month on travel to and from work.

• About 58 percent of interviewees regularly send part of their salary to family members.

• About half of domestic workers in Gauteng live in informal living arrangements or are receiving their accommodation from their employers.

• In a study of domestic workers in Mpumalanga, interviewees reported cases in which their employers stole their passports or other documents and then reported them to the authorities to avoid paying them for their work.

Rights Awareness and Rights Actualization (Socioeconomic and Labor Rights)

Employers of migrants and refugees, as well as employers in the construction, hospitality, domestic work, and farming sectors were more likely to be found violating the Basic Conditions of Employment and Labour Relations Acts. The Basotho women interviewed thought they had "no rights in the country because we are not South African." Among the other respondents, around 40 percent knew of their rights but could not access them due to fears of xenophobic retaliation, loss of employment, and abuse from public officials. Migrants and refugees found in low-skilled jobs could not afford to join trade unions or access legal assistance.

Gender

Female migrants and refugees were found to face more challenges than men, such as fleeing with children and/or facing sexual assault, rape, or sextortion. Migrant women received little support, often due to a lack of trust of South African police officers, which results in few migrants reporting sexual abuse. Migrant women are often abandoned by their male partners who seek out marriage with South African women to access legal documentation. Female migrants are also found to be employed in exploitative sectors such as sex work, domestic work, agriculture, and hospitality. Due to sexual harassment from employers and coworkers, high turnover rates exist in the hospitality industry for women. The union representatives interviewed reported that many of the cases they take on involve sexual harassment in the workplace.

VI. Recommendations

1. Revise the immigration system and its legislative framework as follows:

   • A visa or permit system for low-skilled workers from the SADC region

     This will help the current backlog in the asylum-seeker system as well as reduce the amount of labor and human rights abuses.

   • Legislation and policies encouraging migrants and refugees to operate SMMEs to promote economic growth and respond to the high youth unemployment rate

     Migrants and refugees should be supported in the establishment of SMMEs, which aligns with the Constitution and National Development Plan. This should also allow migrants and refugees the ability to open bank accounts.

   • Temporary or permanent visas for skilled migrants

     Again, this will help to simplify the current asylum process by allowing skilled workers to contribute to the South African economy, particularly in the health and education sectors.

   • Revision of sections of the Refugees Amendment Act 11 of 2017

     Examples of sections that require revision are: (a) sections that result in the exclusion of persons who have committed offences related to false documentation or entry into the country through an illegal (irregular) entry point; (b) Section 6, which states unnecessary criteria for refugee status; and (c) sections that reference limiting the employment or self-employment of migrants.

   • Advocacy for the Department of Home Affairs to comply to court and legal orders

     Civil society organizations should advocate for the Department of Home Affairs to resolve backlogs, reopen refugee reception offices (RROs), and address corruption in the current asylum-seeker system.

2. Improve conditions of work for all workers in exploitative or unregulated sectors of the South African economy.

   Labor legislation must be implemented for all workers including migrants and refugees in exploitative sectors of the economy. The Department of Employment and Labour must be held accountable by civil society organizations to ensure vulnerable workers are protected. Civil society organizations can also engage in rights-awareness campaigns to increase the chances of workers actualizing their rights. Unions should become more active in the representation of workers in exploitative sectors.

3. Conduct quality research for evidence-informed policy and legislature development.

   Based on the research conducted for this assignment, most available information on the topic is anecdotal. Research and academic organizations already active in this sector are needed to conduct further research and studies to ensure the success of recommendations and legislation in their response to real challenges.

4. Continue with, and introduce additional, interventions to improve the quality of life of migrants and refugees in South Africa.

   Some recommendations particularly aimed at civil society organizations:

   • Continue programs such as English courses, skills development, accessing employment, obtaining recognition for qualifications, social support, and counselling.

   • Provide youth development and support services.

   • Promote integration and reduce xenophobia through experience and knowledge-sharing initiatives.

   • Provide temporary accommodation for new arrivals or in extreme cases.

   • Provide shelters for victims of gender-based violence and their children.

5. Provide repatriation and reintegration services where possible.

   Many research participants do not want to be in South Africa but are unable to return home due to a lack of money, knowledge, support, and employment opportunities in their home countries. The IOM currently assists individuals in repatriation by helping them apply for passports and reintegrating them in their country of origin. IOM states that repatriation and reintegration programs will be more affordable and successful than refugee camps or punitive deportation. Implementing more of these programs will be vital as migration continues to increase worldwide.