In April 2015 minister in the presidency Jeff Radebe announced that president Jacob Zuma had appointed an inter-ministerial committee on migration to “deal with the underlying causes of the tensions between communities and foreign nationals.”
Prompted by these tensions and the perceived (but possibly over-stated) “heavy influx” of foreigners, and their extended stays in the country, the South African government is now re-examining the interconnected legal and policy issues around labour relations, business licenses, border controls and migration. A Green Paper on International Migration was published in the Government Gazette on 24 June 2016. Significant amendments are also proposed to the Refugees Act 130 of 1998.
The Refugees Amendment Act of 2015
One amendment has already been enacted, in September 2015, to rectify a constitutional omission. The Refugees Amendment Act 10 of 2015 allows the media and the public access to hearings held by the Refugees Appeal Authority. More sweeping changes to the Refugees Act are in the pipeline.
What is a ‘refugee’?
According to South Africa’s Refugee Act of 1998, “asylum seeker” means a person who is seeking recognition as a refugee in the Republic. “Refugee” means any person who has been granted asylum in terms of this Act (for more definitions, see here).
The 1951 United Nations Convention Relating to the Status of Refugees underpins international legal protection of the rights of refugees. The convention defines a refugee as any person who:
‘… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.’
An economic migrant is a person pursuing better living prospects; while an undocumented immigrant enters a country and remains without official sanction.
What is the Refugees Amendment Bill of 2015?
The Draft Refugees Amendment Bill was gazetted for public comment on 6 August 2015. Proposed changes affect:
- Applying for and abandoning asylum seeker status
- The disqualification from, withdrawal and cessation of refugee status
- The review of asylum applications
- The re-establishment of the Standing Committee for Refugee Affairs
- The powers of the Director General and the Standing Committee for Refugee Affairs
- Offences and penalties.
The Bill beefs up anti-corruption measures and requires members of the Refugees Appeal Board and the Standing Committee for Refugee Affairs to hold legal qualifications, amendments that have been welcomed. However, advocacy and legal groups contend that parts of the proposed Bill limit the rights of refugees, are anti-constitutional and against regional and international law.
Manson Gwanyanya, a migration policy researcher at the Legal Resources Centre, believes the new amendments are aimed at stopping xenophobia but adds that “denying the existence of the problem is not going to make it go away. Our feeling is that the government is sending a message that if you’re a refugee, don’t come to South Africa.”
Home affairs contends that these amendments are necessary to prevent economic migrants “clogging up” a system intended for “genuine asylum seekers seeking refugee status.”
“If the system was efficient and processed people quickly, it should be able to weed out those asylum seekers that don’t qualify as genuine refugees,” says Maurice Smithers of the People’s Coalition against Xenophobia. “But,” he told Africa Check, “the application process can take up to two years and longer. You can’t deal with the bigger problem of migration by reducing the human rights of refugees.”
Applying for an asylum seeker visa
Currently, asylum seekers are issued with a non-renewable, asylum transit permit at their point of entry. They then have 14 days in which to apply for refugee status at the nearest Refugee Reception Office. Upon application, they are provided with an asylum seeker’s permit that must be renewed after six months. Asylum seekers have the right to study, work, trade or open their own businesses and may not be deported while their application is being considered.
Proposed changes would see the 14 days grace period in which to apply for refugee status reduced to just five days. There are currently only three refugee reception offices nationally: in Pretoria, Durban and Musina. Most of these offices also deal with particular nationalities on one specific day of the week. These time constraints, and the potential cost of travelling to the refugee reception offices, could make it more difficult for asylum seekers to fulfil this requirement within the specified time, and could be excluded from gaining refugee status. “The constitutional rights of a genuine refugee don’t go away,” says Smithers. “You can’t deport them until you know whether they qualify for refugee status. A technicality puts this person in limbo.”
Additionally, to secure a visa asylum seekers would now need to show that they are able to sustain themselves, and their dependants, with the help of family and friends, or the UNHCR and its partners, for a period of four months, during which time they cannot work.
“If asylum seekers are unable to work”, asks Gwanyanya, “who is going to provide for them? The United Nations Refugee Agency has already indicated that their support will be limited. Camps? A stipend? Why force people to be a burden on the state? How can we justify to citizens, many of them poor, that we are providing for refugees? This may fuel further tensions.”
To gain the right to work on their asylum seeker visa, asylum seekers will have to prove that they cannot support themselves through family, friends or aid organisations. It is not clear how this will be assessed. Furthermore, they will have to assemble this evidence within the five days they have to report to a refugee reception office.
Although not explicit, it would appear that the right to work applies for six months and may only be extended upon presentation of a letter confirming employment. Lawyers for Human Rights points out that this would seem to exclude informal work and self-employment, a restriction at odds with the constitutional right to dignity, and several higher court judgements.
Exclusions and withdrawal of refugee status
Excluding genuine asylum seekers from becoming refugees or withdrawing refugee status can pose serious risks to people’s life and liberty. Thus, the South African constitution and international law requires any exclusions or withdrawals to be limited and of a serious nature.
If enacted, the Bill will now exclude asylum seekers who:
- have committed a crime in South Africa which is a Schedule 2 offence – murder, rape, aggravated robbery, drug-trafficking, gun smuggling, large-scale fraud, corruption – or an imprisonable offence without the option of a fine
- have contravened the Immigration Act, the Identification Act or the SA Passports and Travel Documents Act
- are fugitives from justice in another country where a recognised judiciary upholds the rule of law
- enter South Africa through undesignated ports of entry and fail to persuade the Refugee Status Determination Officer that there are compelling reasons for such an entry
- fail to apply for asylum within five days of entry into South Africa.
A submission on the Bill, by the Law Society of South Africa, states that committing a crime would not “invalidate an asylum seeker’s right to claim asylum or a refugee’s right to remain a refugee”. The law society recommended, rather, that such persons should rather be charged under criminal law adding that to “return a person to a country where he may face torture and detention without trial would be unthinkable.”
The Legal Resources Centre and Lawyers for Human Rights believe that the offences, both Schedule 2 and administrative, would not meet the standards of “seriousness” envisioned by the UN Convention. People fleeing conflict shouldn’t be penalised for not having the proper paperwork, they say. And, although crossing a border illegally is a crime, sending a refugee back to his or her country could result in the refugee facing persecution.
The Bill allows for withdrawal of a person’s refugee status if “such person has been recognised as a refugee due to an error, omission or oversight.” However, Lawyers for Human Rights point out that if mistakes are made, the burden should be on the decision maker to prove that the applicant is at fault.
Cessation of refugee status
Other clauses for concern highlighted by advocacy and legal groups include the amendments dealing with changes in the personal circumstances of the refugee or objective circumstances that render international protection no longer necessary.
5 (1) A person ceases to qualify for refugee status for the purpose of the Act if –
(a) he or she voluntarily re-avails himself or herself in any way of the protection of the country of his or her nationality’
(d) he or she voluntarily re-establishes himself or herself in the country which he or she left, or returns to visit such country …
This could mean that people who innocently interact with their embassy or who return home to bury a relative, for example, could face the loss of their refugee status.
Who is a ‘dependant’?
The Bill would change the definition of “dependant” to cover unmarried minors under the age of 18 who were legally adopted, and spouses who were legally married, in the refugee or asylum-seeker’s home country. Lawyers for Human Rights point out that these changes exclude children who were adopted in South Africa, or elsewhere, and could exclude children who are not formally adopted. Social and political upheaval often results in children being separated from their parents. The Act would also prevent refugees married in South Africa, including same-sex couples from countries that prohibit such marriages, from being recognised as each other’s dependants. Another problem is the use of the word “legally”, as this would exclude customary marriages.
Refugee camps and places of detention
Commentators are also concerned about the additional powers conferred on the director general, which would give him the discretion to “…require any category of asylum seeker to report to any particular or designated Refugee Reception Office, or other place specially designated as such, when lodging an application for asylum…”
Apart from limiting the basic right of freedom of movement, detractors of the Bill warn that this may open the door to establishing refugee camps or places of detention, a departure from the current urban integration policy. Given the acknowledged backlog in applications, this could mean lengthy stays in such camps. In November last year, for example, the the Ad Hoc Joint Committee on Probing Violence against Foreign Nationals told Parliament that they had encountered people who had “been in the country for more than 10 years and still did not have refugee documents, let alone permanent residence.”
The Bill has not yet been introduced in the National Assembly as it has not yet been signed off by the parliamentary portfolio committee on home affairs. Oral submissions to Parliament are on hold until then. Although the Bill requires a two-third majority in Parliament for approval, a single Member of Parliament can ask to send the Bill to the Constitutional Court for confirmation. Thus, although he feels the Refugee Amendment Bill poses a threat to the rights of asylum seekers, Gwanyanya is optimistic that these issues can be addressed, since we live in a constitutional democracy.
Smithers is also positive. “The minister of home affairs has expressed his willingness to meet to discuss these concerns. Our Refugee Act was widely canvassed and well crafted. It goes beyond the minimum required in international law. It shouldn’t be easily tampered with,” he says.
Edited by Nechama Brodie