Refugee proclamation No. 1110/2019: The right to work of refugees, is it possible to implement?

Ethiopia is host to the Second Largest refugee population in Africa. With over 905,000 refugees, the majority originating from South Sudan, Somalia, Eritrea,  Yemen, Sudan, and others. Most of Ethiopia's refugees are in Gambella Regional State, Tigray Regional State, Somali Regional State,  Addis Ababa, Afar Regional State, and Benishangul-Gumuz Regional State. Most of the host regions are the least developed regions in the country, characterized by harsh weather conditions, poor infrastructure, extremely low capacity, high levels of poverty and poor development indicators.

In 2017 the government of Ethiopia (GoE) accepted to implement Comprehensive Refugee Response Framework (CRRF). The core objectives of the Framework are to ease pressure on the host countries, enhance refugee self-reliance, expand access to third-country resettlement solutions, and support conditions in countries of origin for safe return. Following the decision of GoE to implement CRRF, in 2019 the GoE revised the 2004 refugee proclamation. The main focus of the revised proclamation is on durable solutions through local integration of refugees.

The revised proclamation has introduced fundamental changes to the existing refugee framework. One of the major improvements of the proclamation is it permits the right to engage in gainful employment. Hence, refugees can secure lawful work without discrimination on the basis of their refugee status; access labor protections that safeguard them from exploitation or wage theft; Earn a fair wage. In this brief overview, the challenges and opportunities on the applicability of the proclamation, specifically the right to engage in gainful employment are assessed.

I. Important Landmarks of Ethiopian refugee law

1. Ethiopia has signed the 1951 Refugee Convention on 10 Nov, 1969 with reservations on Articles 8, 9, 17(2) and 22(1), recognizing these only as recommendations and not legally binding obligations, and its 1967 Protocol relating to the Status of Refugees in Nov,1969. The convention is both a status and rights convention. Some of the basic rights provided by the convention are Access to courts (…the same treatment as a national in matters pertaining to the access to justice, including legal assistance…), Right to work, Right to housing, education, welfare assistance and social security, Freedom of movement, ID documents and travel documents, Naturalization. The general obligation to conform to the law is also stated as a duty.
2. Ethiopia is also Party to the 1969 OAU Convention Governing Specific Aspects of Refugee Problems in Africa (the OAU Convention) since 1973.
3. Ethiopia enacted the refugee proclamation number 409/2004 in 2004.
4. At the 71st UN Leaders’ Summit on Refugees and Migrants, which Ethiopia co-hosted on 20 September 2016 held in New York led to made Ethiopian Government’s 9 pledges to participate on CRRF:

1. To expand the “out-of-camp” policy to benefit 10% of the current total refugee population.
2. To provide work permits to refugees and those with permanent residence ID.
3. To provide work permits to refugees in the areas permitted for foreign workers.
4. To increase enrolment of refugee children in preschool, primary, secondary and tertiary education, without discrimination and within available resources.
5. To make 10,000 hectares of irrigable land available, to enable 20,000 refugees and host community households (100,000 people) to grow crops.
6. To allow local integration for refugees who have lived in Ethiopia for over 20 years.
7. To work with industrial partners to build industrial parks to employ up to 100,000 individuals, with 30% of the jobs reserved for refugees.
8. To expand and enhance basic and essential social services for refugees.
9. To provide other benefits, such as issuance of birth certificates to refugee children born in Ethiopia, and the possibility of opening bank accounts and obtaining driving licenses.

E. The decision by Ethiopia to participate in the CRRF led the government of Ethiopia to adopt a new refugee law. On 17 January 2019 Ethiopia's parliament adopted a revised refugee law (proclamation number 1110/2019), which the United Nations (UN) has hailed as one of the most progressive refugee laws on the continent. It replaces the country's 2004 Refugee Proclamation.

II. The right to work on the revised refugee proclamation

2.1 The right to work provision vs national laws

One of the reservations of Ethiopia while ratifying the 1951 refugee convention was the ‘right to engage in gainful employment’. However, the revised refugee proclamation has granted the right to employment for refugees under its Article 26. The expectation is that the enjoyment of the right to work will provide an opportunity for renewed financial investment by development actors and the private sector within the economy that will primarily benefit Ethiopians, in addition to refugees.

In the 1951 convention refugees right to engage in “gainful employment” is composed under three headings: Wage-earning employment, self-employment, and Liberal professions. As per Article 26 of the revised proclamation refugees can engage in Wage-earning employment, self-employment, and Liberal professions as far as they fulfill some requirements.

Art. 26 (1) Recognized refugees and asylum-seekers shall have the right to engage in wage earning employment in the same circumstance as the most favorable treatment accorded to foreign nationals pursuant to relevant laws.

Art. 26 (2) Every recognized refugee and asylum-seeker shall have the right to engage, individually or in group, in agriculture, industry, small and micro-enterprise, handicrafts and commerce, in the same circumstance as the most favorable treatment accorded to foreign nationals pursuant to relevant laws.

Art. 26 (3) Every recognized refugee who have academic credentials authenticated by the competent government authority, and who desires to practice his profession, may be accorded the most favorable treatment as accorded to foreign nationals in areas permitted to foreign nationals.

Art. 26 (4) Recognized refugees and asylum-seekers engaged in rural and urban projects jointly designed by the Ethiopian government and the international community to benefit refugees and Ethiopian nationals, including in environmental protection, industry and small and micro-enterprises shall be given equal treatment as accorded to Ethiopian nationals engaged in the same projects.

The question here is whether the right to engage in gainful employment is compatible with relevant laws of the country. Most national legislation, including in Ethiopia, reserve parts of the job-market exclusively to nationals.

Regarding refugees to receive employment in areas which are (open) to foreign nationals, the requirements for foreign national are almost impossible to be fulfilled by refugees, for instance, some of the requirements in Ethiopia are 1. Secure work permits 2. The requirement for “special expertise” for skills that are not available locally (Ethiopians possessing similar qualification or experience required by the sector are not available) 3. Time limitations (maximum for up to 3 years)

“most favorable treatment accorded to foreign nationals” seen pursuant to proclamation 270/2002 providing foreign nationals of Ethiopian origin with certain rights to be exercised in their country of origin.

Liberal professional practices are reserved for Ethiopian nationals, because pertinent laws reserved for Ethiopians. In addition, the Ethiopian investment proclamation and regulation stipulated; all commercial activities that would be pertinent to refugees’ self-employment opportunities were clearly branded as ‘areas of investment reserved for domestic investors’ E.g. Barbershops, beauty salon, retailing kiosks, etc.

There are other national legislations that may hinder refugees from exercising the right to work. Article 390-393 of the Ethiopian civil code prohibits foreigners from acquiring ownership right over immovable property. In exceptional case Article 18 of the investment proclamation (revised in 2019) allows foreign investors to acquire ownership right over immovable property. ‘A foreign investor or a foreign national treated as domestic investor shall have the right to own a dwelling house and other immovable property requisite for his investment.’ However, to be considered as an investor, according to Art.9 of the revised investment proclamation, foreign investors should fulfill the minimum capital requirements of raising USD 200,000 if the investment is wholly foreign-owned and USD 150,000 if it is a joint investment with Ethiopian national. Refugees are a vulnerable group and they may not fulfill the requirements stipulated under the investment proclamation. These provisions under the investment proclamation may prohibit (directly or indirectly) refugees from acquiring immovable properties which are a vital resource to run an investment (business).  

N.B regulation and directive required to articulate the scope of the right and the applicable conditions.

2.2  Out of camp policy

Refugees mostly live in camps that are separated from the social and economic life of host communities and are mostly dependent on aid, which is the main source of livelihood for them. The right to work is planned to be implemented by permitting refugees the right to movement known as an out of camp policy (OCP) and providing them a work permit based on refugee ID. Expanding the “out-of-camp” policy to benefit 10% of the current total refugee population is One of the nine pledges.

“In spite of UNHCR’s proactive promotion of the ‘Alternative to Camps’ (ACP) policy which advocated that refugees should be afforded an opportunity to live outside of camps, Ethiopia’s ‘Out-of-Camp policy’ (OCP) has been applied only in a limited context in respect of Eritrean refugees – discriminating against refugees of other nationals. Concrete political commitment to expand the OCP regime was secured only recently – and even then, the new scheme would apply just to a fraction (10%) of the entire refugee community living in camps.” (Ethiopia's refugee policy, Journal of Ethiopian human rights law)

If most (more than 10%) of the refugees’ requests to engage in gainful employment the way they are selected might create discrepancy and open for mal-governance. It’s not clear to whom the OCP will be applied. Agency for Refugee and Returnee Affairs (ARRA) may facilitate the movement of refugees and asylum seekers. But regulations would yet need to provide details of how the right to freedom of movement will be implemented and what the government’s discretion should be like.

2.3  The tension between refugee and host community

The presence of refugees can create tensions and conflicts with host communities for a number of reasons. E.g. refugees are often well served by humanitarian agencies and enjoy better access to water, food, and health than the host population. As well, the inadequacy of basic services, lack of energy (firewood) and light, lack of employment, illegal movement of refugees without permission, using communal water points, and overgrazing of pastures can be seen as causes of dispute between the host community and refugee. The conflict between the host and refugee is ineffectively addressed and under reached by humanitarian agencies and government.

Permitting refugees to engage in wage-earning employment can prevent the existing conflict if it’s executed properly and if agencies apply conflict prevention mechanism for reducing tensions and conflicts between the two groups. Or it might also have the potential to escalate the problem if it's poorly handled by the implementing agencies. The need to balance levels of services available to both populations, while engaging the host population in the provision of services to refugees are one mechanism suggested by scholars to prevent conflict.

Conclusion and recommendations

‘The CRRF marks a major shift in the protection of refugees in Ethiopia. Not only will it enhance refugees’ access to socio-economic opportunities, but Ethiopians who have generously hosted refugees for years will benefit as well. However, the implementation stage should consider a plethora of challenges,’ understanding existing factors, having good knowledge of the refugee law, and CRRF, having good knowledge about the context where the CRRF program is implemented, need for strong public engagement, and to have clear enabling laws which can facilitate the implementation of the CRRF, are some recommendations forwarded by different researchers.