Refugees Amendment Bill [B30-2010]: briefing by Department of Home Affairs

Meeting report

Refugees Amendment Bill [B30-2010]: Department of Home Affairs (DHA) briefing
Mr Mkuseli Apleni, Director-General, DHA, presented the provisions to be provided under the Refugees Amendment Bill. The Refugees Amendment Bill of 2010 had been introduced in order to amend the Refugees Act, 1998, so as to amend, insert and delete certain definitions; to clarify how applications for refugee status rejected as manifestly unfounded and unfounded must be dealt with; to empower the Director-General to establish the Status Determination Committee; to revise the provisions relating to withdrawal of refugee status; and to provide for matters connected therewith.

South Africa was a signatory to the following conventions, 1948 Universal Declaration of Human Rights, 1951 UN Convention relating to the status of Refugees; 1967 Protocol relating to status of refugees;1969 OAU Convention governing the specific aspects of refugee problems in Africa. The country was also a signee of the 1993 Basic Agreement between the Government of South Africa and the United Nations High Commission on Refugees (UNHCR). As a signatory to these conventions and according to the Constitution, fundamental rights to all individuals, including refugees and asylum seekers were guaranteed.
The Refugees Act of 1998 provided practical implementation of the relevant international legal instruments, principles and standards relating to refugees; to provide for the reception into South Africa of asylum seekers; to regulate applications for and recognition of refugee status; to provide for the rights and obligations flowing from such status.

The Bill proposed the establishment of a Movement Control Systems (MCS) to be linked to the National Integrated Immigration System (NIIS). It proposed that the permits issued to refugees upon entry into the country be valid for 5 days before that refugee had to report to a Refugee Reception Office. The Bill proposed the improvement of adherence to the conditions within the permits issued to refugees. It proposed the introduction of a permit regime to specifically deal with economic migrants. It proposed that the Department improve effectiveness and efficiency of the status determination system. The Bill would institute a Refugee Status Determination Committee in order to deal more efficiently with the issuing of permits to refugees. It would also be instituted to better prevent corruption and allow for easier monitoring of performance.

The Bill proposed that the information management systems be improved. It proposed the amendment of the Refugee Act in terms of adjudicative procedure and capacity and necessitated a provision in the Immigration Act to deal with economic migrants. The Bill proposed the revision of the functions and powers of the statutory body currently handling the review process for refugees.

The Bill would further seek to make provision for the registration of a child born of an asylum seeker in terms of the Births and Deaths Registration Act, 1992 (Act No. 51 of 1992), (the Birth and Death Registration Act). In terms of the Bill, an asylum seeker or refugee must, after registration of a child born in the Republic, submit the certificate issued in terms of the Birth and Death Registration Act, at any Refugee Reception Office in order to have the said child included as a dependent of such asylum seeker or refugee. The function that was vested in the Director-General to certify that a person would remain a refugee indefinitely now vested with the Minister. The function to withdraw a refugee status was vested with the Minister of Home Affairs.

Clause 3 of the Bill which would substitute Section 8(2) of the Act in order to provide for “Status Determination Committees” at all Refugee Reception Offices as opposed to a “Refugee Reception Officer” as initially dictated by the Refugees Act. Clause 5 deleted Section 8(3) of the Act that required the Director-General to appoint administrative staff connected to the functions of the Refugee Reception Offices. Clause 5 also substituted section 21B (2) of the Act to provide for the registration of a child born of an asylum seeker in terms of the Births and Deaths Registration Act 1992 (Act No. 51 of 1992. Clause 5 further provided that an asylum seeker or refugee must, after registration of a child born in the Republic, submit the certificate issued in terms of the Birth and Death Registration Act, at any Refugee Reception Office in order to have the said child included as a dependent of such asylum seeker or refugee.

Clause 6 deleted the requirement that a representative of the United Nations High Commission for Refugees may be consulted or invited to furnish information to the Refugees Status Determination Officer that would now be substituted by the Status Determination Committee. This Clause further amended Subsection (3)(a) of the Act in order to substitute the words “Status Determination Officer” of the words “Status Determination Committee”. The clause further provided that a hearing by the Status Determination Committee must be conducted in the prescribed manner.
This clause further amended section 24(4) of the Act in order to effect the technical correction in the Act by separating applications that are rejected as manifestly unfounded, abusive or fraudulent from being dealt with in the same procedure as applications rejected as unfounded applications. The Bill proposed several other changes in keeping with its purpose (see document).

Discussion
Ms H Makhuba (IFP) thanked Mr Apleni for the presentation. She sought clarity on the provision which validated an Asylum Seeker Permit for five days as opposed to the previously stated fourteen day period.

Mr Jackie Mackay, Deputy Director-General: Immigration Services, DHA, replied that this provision was designed to ensure that asylum seekers would have five days to report to an immigration centre to report their arrival in the country and apply for the adequate documentation. In doing this, the Department would be able to keep track of the amount of people in the country and the nature of their stay in the country. The period was shortened from fourteen to five days in order to induce a sense of urgency in reporting to a Home Affairs office for refugees entering the country. Refugee Reception Office s would be moved to border regions so that when refugees came into the country, they could report to a centre without hindrance of long travel to get to a centre.

Mr M Mnqasela (DA) sought clarity on the provision pertaining to the number of days an Asylum Seekers Permit was valid. He expressed his satisfaction with the reworked provision in Clause 5 of the proposed Bill which would take note of asylum seekers who gave birth in the country and granted status to the child so as to prevent a situation where children were not stateless upon birth.

Mr Mnqasela asked what the benefits were of instituting the Status Determination Committee (SDC) and whether it would be able to deal with excess numbers but maintain effectiveness. He also advised that the SDC and the Department should take a view to educating the citizenry on how laws translated and affected them.

Mr Apleni replied that the Department had undertaken not to have stateless children, thus the provisions pertaining to the recognition of children born to asylum seekers was an important addition to the Bill. National Security was upper most in the Department’s thinking with regards to the SDC, in that individuals were corruptible and sometimes took a narrow view when awarding or rejecting status applications, whereas a Committee would be more objective and less corruptible. The SDC would also bring credibility to the process of consideration with respect to the consideration of refugees seeking asylum. The issue of educating the citizenry on immigration laws was a vital one and the Department took pride in the stakeholder forums which the Department had initiated in local communities.

The Chairperson sought clarity on the issue of a refugee child born in the country and what citizenship status that child assumed.

Mr Apleni replied that a child born in the country could assume the citizenship of the country but only after reaching the age of majority (18).

Ms Z Balindlela (COPE) thanked the Department for its presentation. She commented that there was a lot of administrative work that needed to be done and that there was a need for a clear implementation plan. She said that the Director-General should present the action plan to the Committee with respect of the Bill in order to get a better idea of the financial and infrastructural implications for the Department upon implementation of the proposed Bill for monitoring purposes.

Mr Apleni welcomed Ms Balindlela’s recommendation for the Department to present its action plans on the implementation of the Bill.

The Chairperson asked whether the SDCs would be located across all provinces and whether Status Determination Officers would still exist.

Mr Apleni responded that the SDCs would be located wherever Refugee Reception Offices were located along with an Appeal Authority. The Authority would be spread to various centres in order to decentralise its power.

Mr J Thibedi (ANC) addressed three issues. Firstly, he asked whether the powers formally granted to Status Determination Officers would only be exercised by the SDC with the introduction of the Bill. Secondly, he asked how the Department would ensure that there was no room for misinterpretation of the provisions under the Bill. Thirdly, he voiced his approval for giving the Minister overall power to determine the status of an individual seeking refuge in the country.

Mr Apleni replied that the powers formally granted to Status Determination Officers would be transferred to the SDCs and that they would have more overall power than the Status Determination Officers. The guidelines pertaining to the Bill and its provisions would have to be very clear in order to prevent misinterpretation of the provisions.

Ms P Maduna-Peterson (ANC) sought clarity on how the identity document provided to refugees looked like.

Mr Mackay explained that the identification document for refugees would be similar to those issued to South African citizens except that it would clearly state the refugee’s country of origin and that they were a non-citizen of the country. There would be a four year validity period for the identity document.

Ms Makhuba asked who the SCRA were. In addition, she asked whether there were any challenges in the SCRA being responsible of issuing permanent residence status to refugees.

Mr Apleni replied that SCRA was the Standing Committee on Refugee Affairs and it was dealing with manifestly unfounded cases. There were backlogs in the Department and challenges but the new proposals would deal with those backlogs and challenges.

Mr Mnqasela asked what the time period for an appeals process would be in view of the various bureaucratic processes being instituted. He asked whether the SDC superseded the SCRA. What were the implications were for removing the ability for a refugee to consult the United Nations High Commission on Refugees (UNHCR) and why that had been done.

Mr Apleni replied that the UNHCR was now required to work in conjunction with the SDC in dealing with refugee issues as opposed to dealing directly with individual refugees.

Mr Tsietsi Sebelemetja, Director: Legal Services, DHA, replied that the decentralisation of the body dealing with refugee issues arose from the Refugees Amendment Act of 2008. This was done in order to improve monitoring of performance and to ensure that the work carried out on refugee issues was done without reproach. Members of the SCRA were expected to hold their positions in the Refugee Appeals Authority until their term of office expired, meaning that they would be phased out as their terms of office ended. The Refugees Amendment Act of 2008 allowed for the Refugees Appeals Authority to deal specifically with refugee cases even where those cases had been handled outside the ambit of its legislative reach thus the UNHCR had to consult on refugee cases with the Authority.

The Chairperson asked whether the Refugees Appeals Authority was still in place.

Mr Apleni responded that it was still in place and would be replacing the UNHCR in performing the function of providing an outlet for refugees to consult.

The Chairperson asked the State Law Adviser and Parliamentary Legal Adviser if they had anything to add.

Ms Bongiwe Lufundo, Principle State Law Adviser, Office of the Chief State Law Advisor, said that the Department had been clear on all issues pertaining to the Bill.

Mr Frank Jenkins, Parliamentary Legal Adviser, said that he would need to study the Bill further before making comment on it.

The meeting was adjourned.