The State Of The South African Refugee Protection Regime: Part I - Current Status

Increasingly restrictive policies paired with chronic processing delays and endemic corruption and mismanagement in the Department of Home Affairs (DHA) have twisted the post-1994 system into one ridden with violations of both the South African Constitution and AU and UN conventions. The first brief in this series offers an account of the dire state of refugee protection in South Africa and what it means for asylum-seekers within our borders. The second interprets the regime’s fall from grace as not merely a case of an overburdened or negligent state, but of conscious and politically loaded deterrence.

The Post-1994 Refugee Regime – a long walk to freedom

In 1994, as South Africa made its transition to democracy, a new constitutional order was established, rooted in the principles of equality and human rights. These principles excluded no-one, and were extended to asylum-seekers by the 1998 Refugees Act. The Act was guided by South Africa’s Bill of Rights, applying to all people in South Africa regardless of nationality or legal status, and the Act integrated, indeed exceeded, international refugee protection standards. Contrary to trends in Africa and at the UNHCR at the time, South Africa’s refugee regime embraced local integration, avoided encampment, articulated strongly the principle of non-refoulement[1], made generous allowance for freedom of movement, afforded access to health care and education services and entitled refugees to apply for permanent residence after five years. Moreover, it gave refugees and asylum-seekers, while their status was being determined, the invaluable right to work.

In essence, the post-1994 protection regime’s developmental and rights-based approach encouraged refugees to integrate into their host country and benefit from all attendant protections and rights granted to citizens by the Constitution. It avoided the costs necessitated by refugee camps and withholding the right to work.

The Refugee Regime Today – a long way from freedom

In 2018, you will find a very different animal: a refugee regime that still goes by the guise of “protection” but is characterised by negligence, deterrence and blaring contradictions. The 2017 Refugees Amendment Act was the nail in the coffin, with government piling on logistical and administrative barriers to the asylum process. Litigation has become one of the key sources of refugee support, demonstrating the discrepancy between the rights enshrined in the Constitution and actions of government departments and officials. Segatti calls the state’s approach a schizophrenic one, mixing ‘laissez-faire and mismanagement, related to both chronically weak administrative capacity and coercive and abusive practice’.[2]

The current key issues are:

1. The right to administrative justice

South Africa is notorious for having the largest backlog of applications for refugee status in the world.[3] It can take up to 15 years for applications to be finalised, although status determination typically takes around 5 years.[4] In this time, asylum-seekers are vulnerable to arbitrary arrest and deportation, xenophobic violence, police negligence, corruption at several points (see the Corruption Watch Report on bribery in the asylum system), job insecurity and the prospect of being turned away from hospitals and schools for lack of acceptable identification documents.

Asylum-seekers are required to renew their permits at a Refugee Reception Office (RRO) every one to six months. This period is set at the discretion of status determination officers and often on the basis of under-the-table payments.[5] Lack of staff and unwillingness to help force asylum-seekers to return to RROs regularly, only to join long lines to renew their permits and receive their next expected return date. Failure to renew a permit in the prescribed time limit leads to the automatic revocation of status, forfeiture of the right to renewal and treatment as an illegal foreigner under the Immigration Act, subject to deportation or imprisonment.

The RRO system imposes considerable hardship on asylum-seekers who are almost exclusively self-supporting, forcing them to travel long distances with small children, sacrifice valuable time and money and risk jeopardising their precarious employment arrangements. This was exacerbated by the Department of Home Affairs (DHA) between 2010 and 2012, when three of South Africa’s five RROs were closed to new asylum applicants. This forced asylum-seekers across the country to travel to Durban or Musina to apply for and later renew their permits. In response to court orders to reopen these RROs in the name of ‘irrationality and unlawfulness’, the Desmond Tutu Refugee Reception Centre was opened in Pretoria in 2017. The RRO in Port Elizabeth was reopened this year, but remains critically under-staffed and under-resourced.[6]

2. The right to asylum and refugee status

According to the UN Convention’s Article 27, ‘[t]he Contracting States shall issue identity papers to any refugee in their territory who does not possess a valid travel document’. This responds to the reality that fleeing war or persecution is often immediate and unplanned, and that the ensuing journey is precarious at best. In South Africa, asylum-seekers who arrive at the border without passports are routinely denied the right to asylum.[7]

In many cases, the right to refugee status is also denied. Between 2014 and 2015, the proportion of asylum-seekers granted refugee status decreased sharply from 12.18% to 4.12%.[8] In 2017, it increased to 8.81% but consisted primarily of family unification claims. Only 479 asylum-seekers without family already in South Africa were granted status in their first interview in 2017, while 25 713 were rejected.[9] Seen against the reduction in asylum applications since 2008, these values are alarming. But they reflect the government’s official position since 2012 that 90% of asylum-seekers are economic migrants trying to abuse an overly-generous refugee regime. Anti-migrant sentiment and associated policies of deterrence are reflected at the RRO level, where studies have pointed out the ‘arbitrariness of many decisions, and the practice of adjudicating claims by country of origin and not the personal experience of the individual claimant’.[10] Irregular and short interviews with officials have resulted in ‘consistently poor’ decisions, with numerous errors of law including the failure to provide adequate reasons for rejection, the misapplication of the concept of persecution, and improper and inadequate assessment of conditions in the country of origin.[11]

Made deliberately or not, these poor decisions violate the cornerstone principle of the international and domestic refugee protection regimes: non-refoulement, which safeguards against individuals’ return to a country where they have reason to fear persecution or harm, and which is predicated on the existence of a fair, efficient and timely process of refugee determination.

Refugees’ right to protection is further compromised by the 2017 Act which expands the DHA’s power to cease recognition of an individual or group of refugees. The Act also extends refugees’ right to apply for permanent residence from 5 to 10 years, while the 2017 White Paperon International Migration for South Africa endorses abolishing this prospect altogether.[12] The White Paper changes would mean that protection is only ever temporary, compromising refugees’ sense of stability and therefore willingness to invest and integrate in South Africa – the cardinal intention of the original regime.

3. The right to work and freedom of movement

The right to work is also in the firing line. The 2013 Business Licencing Bill aimed to increase barriers to entry to the informal sector, effectively criminalising migrant operators in the interests of their South African counterparts. This exposed a harmful contradiction between a refugee protection policy that demands self-reliance and an informal sector policy that seeks to undermine it. In 2014, the Supreme Court of Appeal reasserted the right to self-employment for asylum-seekers and refugees[13] – an order opposed by all tiers of government. In response, the 2017 Act overturned all judgements permitting asylum-seekers to work in South Africa while awaiting adjudication of their claim. Only those found ‘unable to sustain themselves’ or unable to solicit support from friends, family or an NGO acquire the right to work, extendable after a six-month interim period with a formal letter of employment.[14] The alternative, for those unemployed after six-months, is self-reliance and survival for an indefinite status determination period that has been known to stretch into years.

Meanwhile, asylum-seekers’ access to financial services is severely limited by FICA requirements. This is not because of the requirements themselves, but rather the DHA’s slowness (or outright failure) to provide banks with the necessary identification. The result is frozen assets, compromising asylum-seekers’ ability to pay rent and permit renewal costs or provide food and child care. Many respond by carrying cash and are often targeted by criminals.

This erosion of the right to work is consistent with the government’s turn from integration to encampment expressed in the White Paper. The intention is to build detention centres close to the Zimbabwean and Mozambique borders to accommodate asylum-seekers during the status determination period, threatening the right to freedom of movement.[15] By catering for ‘their basic needs’, these centres will negate asylum-seekers’ right to work and study. Should the White Paper’s proposals be implemented, one could only hope that detention centres (or “Asylum-Seeker Processing Centres” as they are called) are properly resourced and that the status determination period decreases from its five-year average. UNHCR has indicated that it will not finance detention, placing the cost burden squarely on government – an alarming prospect seen against the government’s explicitly anti-foreign migrant discourse, and its unwillingness to reopen and resource the current (and significantly cheaper) RRO system. Will the state be willing to provide sufficient support to put up what is currently 60 000 asylum-seekers per year?[16] How will it ensure support is not greater than that provided to South Africans but remains in line with health, safety and international standards? What would happen to the system in the case of an influx of asylum-seekers like that brought on by the economic freefall of Zimbabwe?

All of this for what?

Underlying all of these concerns is the question ‘why?’. There is no doubt that the bad conditions continue for refugees once they reach South African soil. But what has led the government to abandon its progressive refugee regime with its values of human dignity, equality and deservingness, a tolerance of otherness and a rejection of our segregated history? The next brief offers an explanation.

Tove van Lennep
Researcher
tove@hsf.org.za

[1]Refoulement is the forcible return of a refugee to the country of origin