Do Asylum Seekers Now Count as South Africans for Jobs? Employment Services Amendment Bill

ByRiaan Roux
Watch: Do Asylum Seekers Now Count as South Africans for Jobs? Employment Services Amendment Bill (The Riaan Roux Show)

The Employment Services Amendment Bill is the bill people say will put asylum seekers on the same footing as South Africans when it comes to jobs. A woman who posts as Coloured Mommy on Facebook says it will let an asylum seeker tick the same box on a job form as a black South African. On X, people ask whether a company could hire nothing but asylum seekers and stay inside the new limits on foreign workers. The Department of Employment and Labour calls all of this a myth.

I went through the bill, its own memorandum and the first draft from 2022, and I answer the questions you asked under videos on YouTube and on X, one at a time. I am as worried about this bill as you are. One or 2 of the claims going around are false. But the real problems are in the bill’s own words.

What the bill is

A first draft of this bill went out for comment in February 2022 (PMG). Cabinet approved the bill in May 2025 (SAnews), and on 29 May 2026 the Minister of Employment and Labour, Nomakhosazana Meth of the ANC, sent it to the National Assembly as B16-2026.

It changes the Employment Services Act of 2014, which already bans hiring a foreign national without a valid work permit. The bill adds a skills test, limits on how many foreigners a business may hire, and much bigger fines. Public comment closes on 6 November 2026. Nothing in it is law yet.

Do refugees and asylum seekers now count as South Africans for jobs?

The whole bill hangs on 2 words, foreign national. Every rule in it, the permit check, the skills test, the limits and the fines, applies only to a foreign national. Clause 1 rewrites that definition:

“an individual who is not a South African citizen, a permanent resident, a refugee or an asylum seeker”

Employment Services Amendment Bill B16-2026, clause 1

A refugee is someone Home Affairs has granted asylum. An asylum seeker is anyone who has applied. The bill’s own memorandum spells out the effect: people applying for refugee status, or awarded it,

“will have the same status in respect of employment as citizens and permanent residents”

Explanatory memorandum to B16-2026, paragraph 2.1(g)

On 8 October, IOL reported that Minister Meth said the bill gives refugees and asylum seekers no new rights. On 13 October, the department posted a graphic on X calling it a myth. It says the bill grants no citizenship and no status equivalent to citizenship.

Nobody said the bill makes anyone a citizen. The question is jobs, and on jobs, the department’s own memorandum says same status.

And this was a choice. In the 2022 draft (as reproduced in the Stellenbosch University submission), only people “granted recognition as a refugee” were left out. Asylum seekers were still foreign nationals, and a business could hire one only if the asylum visa was endorsed with the right to work. In the 2026 bill, asylum seekers were added.

The memorandum still carries traces of the old version. In one paragraph, it says the definition “includes both asylum seekers and refugees”. A few pages later, it says the opposite. So, yes. Under this bill, a person with an asylum application in the queue counts the same as you when a business hires.

Can they tick the same box on the equity form?

Coloured Mommy asked whether an asylum seeker could now tick the same box as a black South African. False. This bill does not touch the Employment Equity Act, which only counts South African citizens in its designated groups. Her worry about the box is wrong. Her worry about the definition is right.

Does this give asylum seekers the right to work?

The bill says permission to work still comes from a visa under the Immigration Act or the Refugees Act. Since 2020, the Refugees Act has said an asylum seeker may only work if Home Affairs endorses it on the visa (GroundUp). According to the UNHCR, that system has not been fully put in place.

But on my reading, every check in this bill, on papers, on skills and on skills transfer, applies only to foreign nationals. Take asylum seekers out of that term, and none of those checks applies to them. Their right to work is left to Home Affairs, the same department the government admitted could not process the influx at its refugee offices (The Star). If you are a labour lawyer and you read it differently, tell me in the comments under the video.

Could a company hire only asylum seekers?

On X, Bangu Mhlaba shared a clip from Podcast and Chill and asked whether a company could hire 100% asylum seekers without breaking the quota.

The quota is the minister’s new power to cap the percentage of foreign nationals a business may have, by sector, type of job or region. Asylum seekers are not foreign nationals under this bill, so they do not count. When the minister sets a quota, section 12B even counts the skills of “South Africans, refugees and asylum seekers” on the same side.

So, as written, yes. A business could fill every post with asylum seekers and never touch its quota. The SABC’s own explainer lists refugees and asylum seekers as excluded from the definition.

The department’s third myth says the bill does not force anyone to prefer foreigners over South Africans. It does not need to force anyone. It leaves the door open, and in my view, that is the biggest hole in this bill.

Is this why they opened the asylum queues?

The bill came first. Cabinet approved it in May 2025 and it went to Parliament in May 2026, before the Constitutional Court ruling of 7 July 2026. I covered what followed in my video 11 Days of Chaos.

But that does not make it better. The two now work together. If this bill becomes law, every person who gets asylum-seeker papers steps outside the quota, and the longer the queue, the bigger that hole becomes.

Is a business with fewer than 10 staff a loophole?

Under the Newzroom Afrika video, viewers asked why businesses with fewer than 10 staff are left out. Small businesses are left out of the quotas only. The other rules apply to “any person” who hires a foreign national:

  • Check the papers
  • Keep copies
  • Pay no less than a South African would get
  • Be satisfied that nobody else in the country has the skills

Fewer than 10 means 10 people in total, not 10 foreigners, and the bill tries to stop a bigger business from splitting itself up to get under that line.

Does this affect you if you have a gardener or domestic worker?

On 25 September, attorney Douglas Nelson of Moolla Attorneys told the SABC that the bill would treat households the same as businesses, with fines of up to R100 000 per undocumented foreign national.

He is right about households. If your gardener or domestic worker comes from Zimbabwe, Malawi or Lesotho, the same rules apply to you. Unless the minister exempts households, you would also need a skills transfer plan. But the bill does not say per worker. It lets the Labour Court fine you:

  • Up to R100 000 for a first breach
  • R200 000 for a second within 3 years
  • After that, R1 million or 10% of turnover, whichever is more

So a household that hires a foreign gardener carries the risk. A business that hires only asylum seekers carries none under this bill.

What happens to people who already have jobs?

When the minister sets a quota, the notice must give existing businesses a period to comply. The bill does not say how. Labour lawyer Michael Bagraim told Al Ansaar Media that the minister would have “absolute discretion”.

“If this goes through as it stands, I don’t believe it’ll be constitutional.”

Michael Bagraim, to Al Ansaar Media

He expects 3 to 5 years of court cases. The fines fall on whoever does the hiring. A worker hired against the rules keeps the right to claim unpaid wages, and anyone here illegally still falls under the Immigration Act.

What about asylum seekers who are rejected?

Under the Refugees Act, once a rejection is final, the person must be dealt with as an illegal foreigner. In May 2026, the Constitutional Court ruled that they may not keep applying again from inside the country (IOL).

This bill only says an asylum seeker is someone who “has applied for asylum”. It says nothing about a final no. On my reading, that person stops being an asylum seeker, but the bill should say so.

What is new if the old law was never enforced?

The most liked comment under the SABC explainer said this law could end up as words on paper. The bill adds the skills test, the skills transfer plan, equal pay, the quotas and much bigger fines. But in August, NATJOINTS said 6 317 labour inspectors were working across the country. Michael Bagraim, also a DA MP on the labour committee, told The Mercury that is “a drop in the ocean” against more than a million businesses.

A bigger fine on paper means little if nobody comes to check.

Is this about votes?

Under Coloured Mommy’s video, about 3 in every 10 comments I read say this is about votes before the election. False. Only citizens can vote, and the voters’ roll for 4 November closed on 7 August (Engineering News), weeks before the asylum queues opened. A refugee may only apply for permanent residence after 10 years of refugee status, and citizenship comes after that.

There may, however, be instances where falsified documents are obtained or where corrupt officials assist these people to obtain citizenship illegally, but there is no way for this to just happen under these laws.

The government and Justice Minister Mmamoloko Kubayi (Mail & Guardian) have both said neither the bill nor the ruling gives anyone the vote. But note the dates. You vote on Wednesday 4 November. Comments on this bill close 2 days later.

How to make a submission that counts

  • Email: employmentservicesbill@parliament.gov.za
  • For the attention of: Mr Zolani Sakasa
  • Deadline: 16h00, Friday 6 November 2026
  • Read the bill: B16-2026 on the Parliament website

Parliament says you may write in the language of your choice. The email is the submission. There is no form. The committee must weigh each point on its merit, and you can ask in your email to present your submission in person at the public hearings (Parliament media statement, 18 September 2026).

Copy-and-paste emails are going around. Use one as a start, but add your own points. Name the clause, say what is wrong, and say what it should say instead. There are 3 points in the bill itself:

  • Clause 1 takes asylum seekers out of “foreign national”, which the 2022 draft did not do.
  • Section 12B then lets a business fill its posts with asylum seekers without touching its quota.
  • The bill says nothing about a final rejection.

South Africans for Constitutional Reform says it is also collecting views for its own submission until 2 November.

Does this bill put asylum seekers on the same footing as South Africans for jobs?

Yes. Its own words take them out of foreign national, and its own memorandum says they get the same status as citizens for work.

The ANC-led government answers a question nobody asked. Nobody said asylum seekers become citizens. What it has not explained is why asylum seekers were foreign nationals in the 2022 draft, and are not in 2026. Put them back where the 2022 draft had them, and the quota means what it says. You have until 6 November to demand it.

Should a refugee whose claim Home Affairs has accepted count the same as a South African when a business hires? And should someone who has only applied? Tell me in the comments under the video.

Sources

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