The Committee heard submissions from the United Nations High Commission for Refugees (UNHCR), the Consortium for Refugees and Migrants in South Africa (CoRMSA) and the Law Society of South Africa (LSSA) on the topic of migration policy.
The UNHCR’s presentation emphasised that any policy on migration would have a deep and critical effect on the asylum space. The UNHCR had been advocating for governments to better manage mixed migration in order to preserve the institution of asylum. The focus should be on management of migration, rather than control or restriction of migration, as properly managed migration could bring beneficial skills and investment into the country. South Africa’s current legislation was extremely good, but implementation was problematic. UNHCR had formulated a 10-Point Plan of Action, which outlined the issues that needed to be addressed by any mixed migration policy. These included cooperation among key partners; data collection and analysis; protection-sensitive entry systems; reception arrangements; mechanisms for profiling and referral; differentiated processes and procedures; solutions for refugees; addressing secondary movements; return arrangements for non-refugees and alternative migration options; and information strategy. UNHCR offered to render expertise to the design of policy on mixed-migration, and to assist government with fine-tuning the existing legislation and provide training to government officials.
The CoRMSA presentation emphasised the importance of supporting the integration or mainstreaming of migration into municipal and provincial planning processes. Regional integration resulted in a need for easy movement within the region, and consequently the migration policy must, amongst others, address dispensations or regimes that could ensure ease of movement for residents of SADC. All policy should be guided by human rights principles. Freedom of movement was important for the survival of asylum seekers, refugees and international migrants.
LSSA examined both the Immigration Act and Refugee Act. In regard to the Immigration Act, it focused on how to encourage people who had the skills that South Africa needed to work and invest in the country. LSSA submitted that careful consideration should be given to developing a system of permits for under- or un-skilled persons, who often, in reality, performed jobs that were unwanted by South Africans. The LSSA therefore invited Parliament to consider the idea of expanding or rolling out the Zimbabwean amnesty to other neighbouring states. Any policy should acknowledge and work within the known realities that South Africa had porous borders. One way to do this would be to focus on employers when it came to enforcement, rather than on employees. With regard to the Refugee Act, the LSSA stressed that the existing Act 130 of 1998 was a fine piece of legislation and that the amendments proposed by the Amendment Act, which had not yet been implemented, were by no means all desirable. It strongly recommend a Green Paper / White Paper process, as premature implementation of anticipated policies had caused unnecessary and in some instances inhumane difficulties for asylum seekers in particular. It was essential to formulate, communicate and allow meaningful engagement on policies and practices before they were implemented. The LSSA submitted that any new policy should address at least some of the following issues: a coherent and acceptable exposition of the so-called “first / third country of safety principle”; and proper protection for persons who may not qualify as convention refugees should also be incorporated to ensure they were not repatriated in violation of the provisions of the Convention Against Torture and other international instruments or the Constitution – so-called complementary protection. The presentation pointed to a number of weaknesses in the implementation of current policy, and argued that swift, fair and efficient adjudication would eliminate the problems.
The main concerns raised by members of the Committee were that there should be a balance achieved between fulfilling South Africa’s obligation to protect refugees, and protecting South African jobs and South African resource allocation. They were interested in how the loopholes in policy could be closed.
Panel discussions on Refugee Policy
UN High Commission for Refugees presentation
Mr Patrick Male, Head of Office, UN High Commission for Refugees (UNHCR) Cape Town Field Office, thanked the Committee for the opportunity to present, and introduced Mr Arvind Gupta, Senior Regional Protection Officer, UNCHR, who presented the submission.
Mr Gupta began by saying that the impact of any policy on migrants would have a deep and critical effect on the asylum space. A Green Paper on international immigration policy development had been submitted to Parliament in 1997. This Paper had recognised the link between migrants, immigrants and refugees. The Refugees Act dealt with the legal regime for the protection of refugees. This incorporated most of the recommendations that the UNHCR would make, but he stressed that proper implementation was key to its effectiveness.
Mr Gupta recommended that changes to policy should be made, as conditions since 1997 had changed dramatically, and national concerns were different. The UNHCR’s intention was to focus on the key issues which must be considered carefully and incorporated in any policy changes or new legislation.
The UNHCR presentation was based on the concept of mixed migration. This concept referred to various categories of people moving into and out of South Africa. Mixed migration was a high priority for governments in the region, for the relevant agencies of the United Nations, and for the peace, development and stability of the region. There were a number of common concerns in the region. These included: increased mixed migratory flows; concerns relating to human trafficking, smuggling, and government responses to national security; abuse of the asylum system; reduction of the asylum space; common driving forces in the region; camps being used as rest stops, for example in Mozambique, Malawi and Zimbabwe; economic prospects in South Africa and the developing economies of Botswana, Namibia, and Mozambique; and clogging of the asylum system.
The UNHCR had been advocating for governments to better manage mixed migration in order to preserve the institution of asylum. Mr Gupta emphasised that the focus should be on management, rather than control or restriction of migration, as properly managed migration could bring beneficial skills and investment into the country.
A 10-Point Plan of Action had been formulated by UNHCR and had been shared with governments. This plan outlined the issues that needed to be addressed by any mixed migration policy. These issues had also been the main focus of discussions in other conferences held in other regions on the subject of mixed migration, and had informed the development of Plans of Action developed by those conferences. Research had been conducted by the IOM and academia on these issues in South Africa, as well as Tanzania and Kenya.
The elements of the 10-Point Plan of Action were:
-Cooperation among key partners;
-Data collection and analysis;
-Protection-sensitive entry systems;
-Mechanisms for profiling and referral;
-Differentiated processes and procedures;
-Solutions for refugees;
-Addressing secondary movements;
-Return arrangements for non-refugees and alternative migration options;
Mr Gupta explained a number of asylum-related issues that needed to be included in an informed policy on mixed migration. The first was ensuring access to asylum. This included access to the territory at border entry points and access to government structures dealing with asylum to enable lodging of asylum claims. Individuals should be screened to determine the legal regime under which their applications would be handled. Reception facilities should be easily accessible and well managed, with smooth processes. Legal assistance should be provided to asylum-seekers, as well as other assistance that may be necessary as they awaited the finalisation of their asylum claims.
The second issue was the enjoyment of rights. It was essential that human rights standards and refugee rights were implemented. Oversight should be provided by human rights institutions. Asylum-seekers and refugees should also enjoy the opportunity to pursue life sustaining activities, which would not only benefit the migrants but also lessen the burden on the host state and improve the possibility of integration.
It was necessary to ensure that a fair and efficient refugee status determination process was in place, as well as provision of international protection. This would include effective and accurate registration of asylum-seekers and refugees; well trained and informed refugee status determination officials; thorough application of refugee law to asylum claims; and the provision of adequate appeals opportunities. Efficient administration at refugee reception offices allowing for issuance of relevant legal documentation in a timely manner was crucial, although this had recently been hindered by the closing of several refugee reception offices. Refugees and asylum-seekers should be provided with the relevant legal documentation, travel documents as required, and the efficient renewal of legal documents.
Policy should include the application of other international and national legal instruments, for example, in cases requiring the application of International Conventions or national legislation dealing such as the Convention against Torture, Rights of the Child, internal displacement, prevention and reduction of statelessness. Legislation and its implementing rules and regulations should be in line with international standards on the subject.
The UNHCR offered to render expertise on the design of policy on mixed-migration, and to assist government with fine-tuning its existing legislation to incorporate relevant provisions allowing for the effective management of mixed-migration. It further offered assistance in drafting new legislation, hosting regional consultations on the subject and entering into multi-lateral agreements designed to harmonise approaches to mixed-migration in the region. The High Commission was also willing to provide training to government officials.
Emphasis was placed on the importance of involving and coordinating with other international and national stakeholders. This included the International Organisation for Migration (IOM), sister UN Agencies such as UNICEF, UNFPA, UNODC, WHO, UNDP, UN Women, and others; NGOs such as the Lawyers for Human Rights, Consortium for Refugees and Migrants in South Africa (CoRMSA), and others; universities; and finally trade union structures in the country, such as Congress of Allied Trade Unions (COSATU) and in the region, such as Organisation of African Trade Union Unity (OATUU) and the International Trade Union Confederation (ITUC).
Monitoring was emphasised as extremely important, not so that the performance of the government could be judged or criticised by outsiders, but rather to ensure efficiency and effectiveness. The High Commission recommended regular monitoring of detention of asylum-seekers and refugees; of refugee status determination processes; of the access to rights on the part of refugees and migrants; and of the implementation of possible solutions for refugees and others.
Rejected asylum-seekers should be treated humanely and with respect for human rights. All avenues of refugee status determination must be exhausted first, and, after this, asylum-seekers should still be afforded the opportunity of applying through immigration law. Non-refoulement was to apply to persons who, although their asylum-application may have been rejected, still may have concerns under other international instruments such as the Convention against Torture. The possibility of return of rejected asylum-seekers to their countries of origin should be facilitated.
Prevention and response to xenophobia was a paramount concern. UNHCR recommended that training should be provided to the South African Police Service (SAPS) on the appropriate responses to on-going and emerging xenophobia, and training and community-based planning should be provided for the Community Police Forums as a mechanism to promote fostered social integration. There should be support to the communities of peace and security to favour and consolidate positive experiences of local integration. It was also important to project and develop the image of refugees carrying out successful integration, to contribute to the positive image of refugees and migrants, and finally to support and enhance the on-going initiative to develop legislation.
The ultimate goal was to reach a durable solution for each refugee. This included assisting refugees who wished to return to their countries of origin to do so in safety and dignity, and assisting with resettlement of particularly vulnerable cases who had no other viable solution available to them. Governments should attempt to find solutions for rejected asylum-seekers and coordinate with relevant UN Agencies in dealing with migrants who were unable to find solutions in the receiving countries.
Regional cooperation was a key strategy for managing migration flows. South Africa should work closely with SADC and other regional cooperative structures. The UNHCR was willing to assist governments in designing, harmonising and implementing measures that addressed their national security concerns while at the same time maintaining asylum principles. It would also assist SADC and other regional cooperation bodies to harmonise their legislation and policy on mixed-migration in the region.
The prevention of, and protection against, xenophobia, could be further strengthened by the involvement of national, regional and global organs of judiciary or advisory institutions - such as national judicial systems, the Banjul Commission, and international human rights protection institutions - in order to create jurisprudence that would further strengthen prevention of and protection against xenophobia. Public information was also important in this regard, so governments should widely disseminate information relating to mixed-migration and their policies, and conduct information seminars and training addressing a wide variety of audiences such as the media, universities, and others in order to generate a better public understanding on issues of mixed-migration and refugee protection.
Mr A Gaum (ANC) thanked Mr Gupta for his presentation and for the offer to assist the Committee. He agreed that the government needed to find a balance. There was obviously a desire to fulfil international obligations, but on the other hand, there was a desire to tighten up legislation. South Africa had borne the greatest administrative and financial burden in dealing with refugee flows, and had had to deal with large numbers of economic migrants, who were not really refugees. He asked for suggestions as to how legislation could be strengthened, whilst still fulfilling obligations to protect refugees, and where the UNHCR thought South Africa fell short in terms of these obligations.
Mr Gaum asked for the UNHCR’s view on the principle of First Safe Country, which this Committee had considered putting into legislation.
Mr M De Freitas (DA) was particularly interested in the attitude of the Department of Home Affairs (DHA) to xenophobia. There was a perception of burden by refugees, rather than opportunity for skills and job creation. He thanked the UNHCR for its offer of assistance in developing better policies, and asked for more detail on the 10-point plan.
Mr G McIntosh (COPE) said that what the UNHCR described was the best possible model, but that it came at a cost. South Africa was not a huge economy and yet it was dealing with an influx of the largest number of refugees in the world. He said that the proposals were “pie in the sky” and asked if the cost of implementing them had been calculated.
Mr McIntosh also pointed out that South Africa had seen migration for more than a century because it was an economic hub. Refugees were prepared to take any work, and this undercut South African job seekers. He asked if the UNHCR had had a similar conversation with the United States Government or United States Congress.
Mr McIntosh pointed out that it was sometimes difficult to determine if people had a right to claim political asylum or not. Many countries were borderline cases, which made policy implementation difficult.
Mr M Mnqasela (DA) welcomed the presentation, but said he would have expected the presenter to be honest about some of the challenges that had been reported to the UNHCR and to Parliament. Some Refugee Reception Offices had not been operating for the last year or so. The problems being experienced were not only administrative, as Parliament was “sluggish” in enforcing the regulations. He said the UNHCR should not shy away from discussing these issues. There were many who were in the asylum process who were being subjected to unfair and discriminatory treatment by the state.
The Chairperson said there were had been a case of 19 people from the DRC who had falsely claimed refugee status. He asked how the government was supposed to deal with this, and other similar cases of economic migrants claiming to be refugees.
Ms G Bothman (ANC) asked if the goal was to encourage refugees or reduce their number. That should be the starting point. The presentation seemed to be encouraging more refugees to come. Ms Bothman asked if the presentation meant to suggest that South Africa was failing as a government or to instruct the government on how to act.
Ms P Petersen-Maduna (ANC) said she herself had been a refugee in many countries. She also asked if the UNHCR was implying that the South African government was failing, and why it had shown such a sudden interest in directing the legislation. Crime was a major problem in South Africa, and she claimed that in many cases it was not caused by citizens but by foreigners. Foreigners were taking resources, for example RDP houses were being sold to foreigners.
Mr Mnqasela (DA) protested that Ms Petersen-Maduna’s statement was xenophobic and asked the Chairperson to disallow such comments and the member to withdraw.
Ms Petersen-Maduna withdrew her statement.
The Chairperson asked that members be allowed to discuss their concerns openly without fear of being called xenophobic.
Ms G Bothman said that the Committee had asked the UNHCR not just to point fingers, but to come up with recommendations, and she appreciated that this had been done. However, she was concerned that despite all the work that had been done over the years, it did not seem to get to the root of, nor resolve the problem.
Ms Petersen-Maduna said that the numbers of the migrants that were in South Africa was unknown, and that government could not deal with the problem without adequate information.
Ms H Makhuba (IFP) asked where South Africa’s policy was lacking, noting that Refugee Reception Offices were being closed because of court rulings.
Ms Makhuba asked if the 10-Point Plan of Action had been implemented by other governments and if it had been successful.
Mr Gupta responded that he was happy that these issues had been raised as they were all critical and essential issues to address. The questions required a more in-depth investigation of the root of the problem. He would respond in general to the issues raised.
Mr Gupta said that South Africa had the largest number of not refugees - but of asylum seekers, being more than three times greater than the next “rival” for refugees. This was mainly because of asylum seekers from Zimbabwe. When large numbers of Zimbabweans had begun entering South Africa civil society had recommended that the government utilise section 31 of the Immigration Act, which would have given an alternative immigration status to the migrants, allowing them to reside in South Africa legally until they could return to their home country. However, that status was never applied. Zimbabweans coming into the country had therefore ended up applying for asylum, as it was the only option available.
This spoke to a fundamental point about the differential treatment that was required by mixed migration. A migrant could include a person who wished to come into the country for purposes of economic activity. These people should access the immigration regime. A refugee was a person who had been persecuted or who feared persecution, and was seeking international protection. These people should access the asylum system. When the two were mixed up this led to lack of proper administration of both regimes, as had happened in South Africa.
The need to deal with asylum seekers was nothing new to South Africa, but there were differences in the sheer numbers. The system was inundated, and this in turn placed a burden on the state system. There was good legislation, but there were problems in its implementation. South Africa was not doing anything wrong; on the contrary the legislation was comparable to any good legislation in the world; but management and implementation needed to be watched carefully.
The aim and ideal was to balance South Africa’s obligations with managing the huge volume of applications. That was the international standard on the issue and the obligation which international law places on the government. Efficiency in the system was the goal, and all that was required was fine-tuning in the system to improve this.
The UNHCR had not come to instruct the Committee on what to do, or to suggest it was doing something wrong. It sought to form a partnership to make implementation more effective. The organisation had the expertise, and invited the Committee to be able to call upon it for help.
With regard to the 10 Point Plan of Action, the UNHCR had provided the Committee with the full plan and their handbook for parliamentarians. In the region, the plan was yet to be implemented. In the continent there were countries that were actively looking at , but there was no continental plan overall. The suggestions had been implemented in other contexts, particularly in Europe and it was being looked at in South East Asia.
The best model did come at a cost. It was not easy, straightforward, or cost effective, and there was no easy solution, but it was necessary to seek the optimal approach. In his view, the most efficient way was optimal. The shorter it took to determine status, for people to become independent and for them to find a durable solution, the less costly it was from all perspectives.
The UNHCR did not mean to instruct the Committee on training. There needed to be within the government structures an in-house capacity to train its own officials. Officials needed to know how to do a background check, what to look for, and where to refer people on. This was standard operating process. Officials needed to be aware and constantly updated and trained in operating procedures.
The UNHCR held regular bilateral discussions with the United States, which had its own burden in managing its refugees. The USA had been under the microscope for human rights issues, and requested input from the UNHCR regularly. That also happened in Australia on an annual basis.
The question whether the goal was to encourage or reduce the number of refugees was a fundamental one. The UNHCR did not seek to encourage refugees, but to protect them. Refugees came to South Africa not because they wanted to, but because they were seeking international protection, and had no other alternative. That was what defined a refugee. Economic migrants were a separate category. The fundamental definition of a refugee was a person fleeing from a well-founded fear of persecution. That person would desire a good place to stay ,where certain freedoms were possible, and that was understandable. The aim was to reduce the number, but not through preventing refugees from getting that status, if they wanted it, but rather through finding solutions as quickly as possible and reducing the time period by which they should remain a refugee.
The criminality issue warranted comment. South Africa experienced high crime rates, but it was hard to say that it was all committed by foreigners, as there were no statistics on that. In any case, if a person was guilty of crime, his or her status was irrelevant. Any foreigner was obliged to obey the laws of the land, and must be sanctioned if found guilty. It may have appeared that foreigners were adding to the crime levels, leading to people questioning if immigration should not be controlled. Law enforcement should deal with that question, but it was quite distinct from protecting a refugee fleeing persecution.
Consortium for Refugees and Migrants in South Africa (CoRMSA): Briefing on the Primary Issues to Consider for South Africa’s Migration Policy
Ms Sicelmpilo Shange Buthane, Executive Director, CoRMSA, began her presentation by explaining that CoRMSA was a national network of twenty four organisations working with asylum seekers, refugees, international migrants and broader human rights issues. The primary focus was non-nationals, but more broadly the organisation was concerned with human rights issues for everyone in the country.
South Africa was a constitutional democracy and all policy and legislation needed to conform to constitutional provisions. Therefore migration policy needed to be guided by the constitutional provisions. The migration policy needed to be informed by accurate numbers. This was important to ensure that the country was responding to realities on the ground. Immigration was characterised by mixed migration flows and the policy needed to understand this complexity, and the difference between asylum seekers and immigrants, both in regular and irregular situations.
Internationally, migration was recognised as a key aspect to development. The UN had set up the High Level Committee to look into the issue of international migration in 2006. This had been followed by the High Level Dialogues, one of which was scheduled for 2013. There was international recognition that migration could not be stopped, and therefore needed to instead be managed. South Africa, as a regional and global player, could not treat migration any differently.
International migration was important for the development of a country. Both sending and receiving countries benefitted from migration. South Africa should take into account that it was receiving skilled, semi-skilled and other categories of migrants. At the time, the focus was on skilled migration and no provision was made for low and semi-skilled migration. Yet this was also an important element of migration. This was particularly important because these areas were sometimes seen as areas of concern with potential to create tensions between citizens and non-citizens. The issue of decent jobs had already been raised, and the perception that immigrants short-changed South Africans by taking any job was widespread. However, research had shown that in general, the jobs that non-nationals took were those that were not wanted by nationals.
In terms of refugee protection, South Africa was a signatory to the UN and OAU Conventions on the protection of refugees. It was important to note that there was no way of reversing these commitments but for the country to improve on these. In this regard, some of the proposals of the ANC in the Peace and Stability Document proposing reduced rights for asylum seekers were of concern, and needed to be in line with the international relations sections which recognised the value South Africa played in regional, continental and global stages.
One critical aspect that CoRMSA would like to see included in the policy was integration at municipal and provincial levels. It was important to support the integrations, or mainstreaming, of migration into municipal and provincial planning processes, for service delivery purposes. A migration policy was needed that would clearly articulate the roles and responsibilities of the various government departments and institutions in relation to promoting the integration of migrants in the country. Current practice was such that various government departments often shifted any responsibility for migrants and refugees to the Department of Home Affairs. Including municipal and provincial levels of government on migration related issues would assist in addressing not only service delivery but also issues like the safety and security of non-nationals including xenophobia.
As a key regional player, South Africa could not create a migration policy that did not take into account regional dynamics, such as development, skills gain and brain drain, economic and social factors, and infrastructural development. There was a need to promote easy movement within the region, and therefore migration policy, to include aspects specifically addressing dispensations or regimes that would ensure ease of movement for residents of SADC. Clear policy would ensure that there was something against which to hold the government accountable. In the absence of clear policy, it had been difficult to hold the Department of Home Affairs to account for its commitments in this regard.
Externalisation of migration policy in the region, as seen in the European experience, was not always the answer, particularly for the protection of asylum seekers and refugees.
Development was a human right issue and therefore rights that would promote the self-determination of non-nationals should be clearly articulated in the migration policy. CoRMSA had noted the recommendations from the ANC and welcomed them. However, there was concern about the ambiguity of the first recommendation under Home Affairs: “the government should reconsider its policy relating to centres for asylum seekers during consideration of their status”. CoRMSA rather wanted the migration policy to clearly articulate, in all the issues it covered, that policy should not reverse the gains that had been made thus far. These included retaining rights that asylum seekers, refugees and migrants already enjoyed in the country. Freedom of movement was important for the survival of asylum seekers, refugees and international migrants, and as a result they were not dependent on government to provide for them.
Ms Shange Buthane concluded by saying that CoRMSA appreciated the opportunity to make the presentation and was available to further engage on the issues raised with the Portfolio Committee, DHA and other stakeholders.
Ms Roshan Dadoo, Regional Advocacy Officer, CoRMSA, added that CoRMSA had already noted some very creative ways that the South African government had addressed issues of migration. Current policy was in line with international standards and South Africa’s own domestic human rights standards.
Regional integration in SADC was being fast-tracked by South Africa, and it would have to address what that meant for movement in the area. This applied, as well, to South Africans taking up opportunities within the sub-region. She wished to remind policy makers of the SADC protocol that South Africa had signed and ratified. The regime allowed for a three month visa to be freely available for citizens of countries in SADC. Exactly the same principle was already being used in ECOWAS. Ms Dadoo argued that this would stop illegal immigration and false applications for asylum.
The Zimbabwean Documentation Process (ZDP) had been a very creative way to manage asylum-seekers without clogging up the system. The government could be proud of that sort of initiative and should consider extending it to other SADC nationals. In conjunction with the SADC protocol, this would be a good way to creatively manage migration. South Africa was not doing things wrong but was experimenting and taking the lead.
Mr Mnqasela asked about the continual closure of Refugee Reception Centres in the city centre by courts, and asked for suggested alternatives to the proposed movement of these centres to the borders.
Ms Shange Buthane explained that the closure of the Refugee Reception Offices (RROs or Offices) was not done by the courts. The decision was taken within the Department of Home Affairs, for various reasons that were quoted but that had not been adequately explained to the stakeholders or beneficiaries of the offices. The courts had taken a decision that one of the Offices should be relocated, but had not said it should be closed in totality. Civil society had since engaged to try to keep the Offices open and all the court decisions had said that they should remain open and not be moved.
Based on experiences on the ground and the challenges that refugees and asylum seekers were experiencing in putting forward applications, CoRMSA believed that the RROs should remain open, and where they were already situated. If the DHA and the government felt that there was a need to close them then stakeholders would be negatively affected. CoRMSA’s recommendation was that they should not be closed or be put under restricted operations until a full plan had been drawn, and had gone through extensive consultation with the Portfolio Committee, UNHCR, stakeholders and beneficiaries. In unilaterally making the decision, the DHA might have lost out on critical support which could have been offered had a more open consultation process taken place.
CoRMSA was not turning a blind eye to the challenges that DHA was experiencing, but if there were organisations and institutions who were willing to support the DHA it did not make sense to take a negative decision without engaging with them. This kind of support had been offered very successfully in the past. The DHA needed to recognise that although it had the authority to make decisions it could be supported to ensure that service delivery was not affected. There was a need to move away from the “cat and dog relationship” between civil society and government departments because they shared the same goals. Civil society was often forced to go through the litigation route because it was given no opportunity to try more constructive routes.
Ms Bothman said that CoRMSA had come to the Committee the previous year and said that the courts were closing the RROs, and questioned why it now appeared to give another view.
Mr Mnqasela noted that CoRMSA had close connections with refugees and the communities they lived in. He asked what their experiences were in these communities and how refugees could be socially integrated.
Ms Shange Buthane noted that CoRMSA had a strategy of integrating refugees through working towards broader human rights issues. For example, when looking at education, CoRMSA could not address the challenge only by advocating for access to education for refugees, but also for access by other disadvantaged children in the area. Its programming was very comprehensive and sought the wellbeing of all in South Africa. It also had a programme that trained religious leaders in peace-building and identifying potential outbreaks of violence, to ensure peace and stability of the entire community.
Mr McIntosh commented that the recognition that migration was something that needed to be managed was very important. He pointed out that South Africa had a fingerprint database, with a capacity for 80 million fingerprints, of which 30 million was being used. There was thus spare capacity to fingerprint immigrants. He asked what the attitude of the UNHCR and CoRMSA was to fingerprinting, and the desirability of keeping a strong database of every person in South Africa, whether national or non-national.
Dr Male responded that the UNHCR had no problem at all with refugees’ fingerprints being taken. The only potential problem was the confidentiality of asylum details. Interviews and fingerprints would have to be de-linked.
Ms Shange Buthane agreed.
Ms Bothman asked CoRMSA to explain why the ANC resolution seemed ambiguous.
Ms Bothman said that CoRMSA spoke about retaining and securing the rights of refugees, but was silent in terms of the responsibilities of the same refugees. The Constitution said that people had rights, but as soon as those rights had a bearing on another person then they had a different status. She asked what was meant by development as a right and wondered if CoRMSA was saying that policy should be corrected so that people did not abuse their rights, or that people had been excluded in this process.
Ms Bothman asked for an explanation of why there was no way to reverse signature to conventions.
Ms Bothman said that CoRMSA emphasised and protected the rights of refugees but was apparently prepared to overstep and run over the rights of business. Refugees were making it impossible for people to operate businesses. She believed that there should be a focus on better rights for those people that MPs represented, not those who were foreigners. CoRMSA ran over the rights of the Department and trampled on everybody’s rights, except for their own. She asked how to ensure the focus was shifted from purely considering rights, but how to avoid adding any more problems.
CoRMSA responded that its intention was not to fight the South African government or the Department of Home Affairs, its intention was to support the government in upholding the commitment that it had made as a country. That could only be achieved by maintaining open communication. The reason CoRMSA was critical was that decisions were taken behind closed doors, to the exclusion of everyone else. Instead, it believed that open lines of communication should be maintained so that common ground could be found.
All the material that CoRMSA produced emphasised that refugees had rights but also responsibilities, such as renewing permits on time. CoRMSA did not support law breaking.
Mr Gaum asked if CoRMSA was opposed to the decision to move the Refugee Reception Offices and if it was going to frustrate the process or not.
Ms Shange Buthane responded that CoRMSA was opposed to the closure of the offices currently based in metropolitan areas as it would affect the livelihood and protection of those refugees in those areas.
The Chairperson said that new applications should be made at the borders, as people came into the country. Those who had been in the country should continue using Offices that were assigned to renewing visas in the metropolitan area.
Ms Shange Buthane responded that this proposal covered land borders, but not points of entry at the airports or harbours, and said that a debate was still needed on where people could apply for asylum, if the Offices in the metropolitan areas refused to consider any new applications.
Ms Dadoo added that it did not make sense to close existing offices before new ones were opened. This pushed people into a situation where they were not able to keep their documentation updated.
Ms Shange Buthane added that CoRMSA was not saying South Africa should promote refugees and migrants at the expense of South Africans. Development was a right, and people had a right to move. If other countries were accepting South Africans, then this should be reciprocal. She stressed that the organisation was not championing one set of rights over another.
Law Society of South Africa submissions
Mr Chris Watters, Representative: Immigration and Refugee Law Committee, Law Society of South Africa explained that this Committee was comprised principally of specialists in the fields of immigration, nationality and refugee law. The Committee looked to protect the interest of the public and the development of this area of law generally. It represented primarily business interests.
South Africa stood at a crossroads, being sorely tested by the challenges of unemployment, faltering development and failing service delivery. Cabinet had identified various initiatives to address these massive obstacles to the stability of the democracy. The LSSA asked where immigration policy was positioned within this theme, and suggested that it should be organised to look forward to a period where these problems were not so acute, and the country had moved on to a fresh of set challenges. The challenge was to see how national immigration policy could help the country address current and future obstacles, rather than being a silent witness watching from the sidelines.
Mr Watters said that he would address the Immigration Act No 13 of 2002 and the Refugees Act No 130 of 1998 separately, as, although it was recognised that there were important areas of overlap between the two pieces of legislation, the law and policy regimes underpinning the two Acts were quite distinct.
The Immigration Act, the Act was divided conceptually into three distinct components: policy, permits and policing. On the policy side, LSSA submitted that there was a need to resist adopting an approach that assumed – as was often heard – that for every foreign national allowed into the country there was one less job for a South African citizen. It was not the reality, internationally or in South Africa. International patterns could be vouched for by research conducted by organisations such as the International Labour Organisation (ILO). Part of the problem faced by Parliament was the very dearth or shortage of good empirical research about migration patterns in South- and Southern Africa.
Certain other countries knew that in 20 years, a certain percentage of nurses or teachers would reach retirement age, and would plan for this incrementally, using both internal programmes and migration initiatives to fill in the gaps. The alternative was that market forces would manage the process, which was risky and poor management. There was a need to take into account medium and long term visions when developing immigration policy, based on the current and future socio-economic reality.
It was important to recognise that South Africa was not an A-list destination for A-list migrant populations, so in order to encourage migration of these people, there would need to be a collective effort by both the private sector and government. The economy’s needs did not stop with A-list jobs, but straddled the entire employment spectrum, through artisans and actuaries, and mine- and agricultural workers. It had been acknowledged by Cabinet that small business created jobs, and that it did so more efficiently than large corporations. There was a need to create a permit environment that would encourage entrepreneurs, whether South African or foreign, and the establishment of small business. At this time, however, it was virtually impossible for a one-person business to get a business permit, no matter how viable the business.
In designing the current Immigration Act, Parliament opted for a fundamental shift from the permit regime that applied under the Aliens Control Act of 1991. Under the current Act, there was a very structured system whereby certain requirements must be produced in order to get a certain permit.
The rationale was that it introduced considerably more certainty into the application and the adjudication processes, reduced the opportunities for corruption, and affirmed the reality that policy was a matter for Parliament, Cabinet and Ministers, whilst execution lay with civil servants. However, leaving a wide discretion in the hands of lower-level, sometimes poorly trained and poorly paid civil servants often resulted in ‘the tail wagging the dog’. Officials tended to develop “policy” under the guide of “official practice” and there was the risk that they may extort or take bribes.
The LSSA believed that the current permit system should not be completely revised, as there was nothing fundamentally wrong with it, although it did need fine tuning in terms of closing loopholes and tightening up definitions. For example, the exceptional skills work permit, soon to be discontinued, was not in itself flawed. The problem lay in defining its requirements and the discretion that was allowed officials to decide whether a person had “exceptional skills”, which had led to some quite remarkable, although lawful, decisions.
The LSSA proposed a need to create a gradation of permit processes, recognising that in some cases South Africa needed to be made more attractive than Mauritius or the Seychelles, for example. Some countries had done a SWOT analysis and had taken measures to ensure that the importation of needed skills would not be hindered by permit difficulties. Some countries ensured that they could take in applications electronically and would process the application within days rather than weeks. This would make a huge difference to the marketability of South Africa as a business destination, as currently a tortuous process was needed for permitting an offshore company to set up in South Africa and locate its senior staff to start running operations. Mauritius, for example, had not made that mistake and was marketing itself as an alternative to South Africa’s red tape difficulties.
LSSA was not in favour of vesting wide discretion in civil servants, but nonetheless urged that the permit system should be designed to address or respond to grey areas. Thanks to the never ending evolution of the world economy and the ingenuity of humanity, there could be an entirely bona fide situation for which there was not an appropriate permit. Currently, such cases needed a Ministerial waiver in terms of section 31(2)(c) of the Act. A more appropriate solution could be incorporated into legislation, allowing concessions for a period of time, although not going so far as discretions that were open to abuse.
The treatment of foreign spouses and children, and their rights once the marriage or spousal relationship had ended, also needed attention. A problem often arose when the foreign spouse needed to remain in South Africa and find employment to support her- or himself and their minor children, but had no specific skills qualifying that person for a work permit. Another situation was that a South African could use his or her residence status to pressurise the foreign former spouse on maintenance or custody arrangements, to prevent being forced out of the country.
Mr Watters said that consideration must also be given to developing a system of permits for under or under-skilled persons. This principle had already been acknowledged and given statutory acknowledgment in making provision for the importation of agricultural and mine workers from neighbouring states, who remained under-developed largely because of the fact that South Africa’s economy dwarfed its neighbours. This arrangement needed to be expanded upon. There was anecdotal evidence that many foreign nationals were working illegally in the Republic, with many employees ignoring the issue because they could not find South Africans with the same work ethic or enthusiasm. LSSA called upon Parliament to consider the idea of expanding or rolling out the Zimbabwean amnesty to other neighbouring states, although it also cautioned that the flaws in that system would need to be carefully reviewed and addressed.
LSSA fully recognised the Portfolio Committee’s request for forward-looking submissions, but said that it was still necessary also to learn from the mistakes and the successes of the past. The language of South Africa’s enforcement model in the Act was 100 years old, and some provisions were taken verbatim from the 1913 Act, so more creativity and responsiveness was needed.
LSSA said that any policing and enforcement models must accept, without shame, that South Africa, like other countries, had porous borders, work with that reality and design a response that was within the country’s means and that worked to its advantage.
One approach was to start from the premise which was identified in the original Green Paper, that the object of illegal migration was to secure jobs and that therefore, the enforcement focus should be on employers. For the most part, employers could not hide under the radar screen, and there were far fewer employers than there were illegal or undocumented and economic migrants. Employers were required to register with all manner of authorities in South Africa. Time was needed to get across the message to get across to the sending countries that opportunities within the South African economy were very limited if one did not have the correct permit.
This strategy had been looked at closely in a number of countries, although there was no completely right and watertight model, South Africa could usefully look to learn from a mix of economies which had tried to better manage illegal immigration. This was not to suggest that the country should slavishly copy one model over another, but rather that it should be choosy and eclectic, in order to ultimately achieve a South African solution to a South African challenge. LSSA submitted that the same consideration should apply to undocumented self-employment.
Finally, there was a desperately urgent need to address xenophobia. This was one issue which could cause untold harm and damage to the country, unless brought under control. The obligation fell on all involved, but the Department of Home Affairs, together with other Departments in the security cluster, should lead the way. It helped no one if rampantly xenophobic comments were uttered by Home Affairs officials.
The Refugees Act
Mr William Kerfoot, Lawyers for Human Rights and representative for LSSA, then gave the presentation on the Refugees Act, noting that much of the submission had drawn heavily from the excellent analysis by Lawyers for Human Rights, entitled “Policy Shifts in South Africa”, which was to be launched shortly.
Mr Kerfoot also stressed that whilst he was conscious that little purpose would be served by focusing on current administrative failures, he did note that some reference to the current problems might help the Committee to suggest an improved policy. The LSSA wished to stress that the Refugees Act, No 130 of 1998, was a fine piece of legislation and that not all the amendments passed in the Amendment Act (yet to be implemented) were desirable. LSSA strongly recommend a Green Paper / White Paper process, since premature implementation of anticipated policies had caused unnecessary, and in some instances inhumane difficulties for asylum seekers in particular. It was essential to formulate, communicate and allow meaningful engagement on policies and practices before they were implemented.
The LSSA submitted that any new policy should address at least a coherent and acceptable exposition of the so-called “first / third country of safety principle”, and should also make proper protection for persons who may not qualify as conventional refugees, to ensure they were not repatriated, contrary to the provisions of the Convention Against Torture and other international instruments, or the Constitution.
LSSA submitted that Refugee Reception Offices in urban areas should be reinstated and ideally expanded. Most staff who were well trained with years of experience were unlikely to want to relocate to work at the borders, so that if the offices were moved, new staff would have to be trained. Even at present, the standard of refugee status determination was “appalling” and Home Affairs staff were often xenophobic. Freedom of movement and freedom of economic viability should be retained for refugees.
Provision should be made for the independent monitoring of border crossing processes for asylum seekers at land borders. The imposition of discriminatory conditions regarding shops and businesses owned by asylum seekers, refugees and other such migrants should be stopped. There was no legislation saying that refugees were not allowed to own businesses or manage businesses, but it had been found that policy nonetheless sought to impose fines, either due to misunderstanding of the law, or urging from other jealous business owners. Asylum seekers and refugees were assisting the economy and assisting poor South Africans by providing them with cheap milk, cooking oil and bread, and were able to get good discounts by banding together. Many communities were deeply reliant on them.
The right to work and study, and freedom of movement for asylum seekers should be retained. Any restriction of such rights would impose a heavy consequential financial burden on the state. Most importantly, provision should be made for permanent residence to be automatically granted to migrants who had been in South Africa uninterruptedly for 8 years or more, unless there was good cause not to, such as criminal convictions within South Africa. He reminded the Committee that the law had been settled, both in South Africa and other countries, that refugee status started to run from the date the person first crossed the South African border. LSSA also submitted that it would be inhumane if Angolan refugees who had lived in South Africa for up to 16 years were forced to return to Angola this year, as well as being extraordinarily expensive. The majority of recognised refugees from Angola had integrated into South African society, were contributing to the economy and no longer had meaningful links with their home country.
Many NGOs and members of government had accepted that for years that the ability of status determination officers was not very high. They applied the wrong burden of proof and relied on prejudicial information that was not confirmed with or communicated to applicants.
There was a backlog in appeals of tens of thousands of applications, as was reported to the Portfolio Committee last year. Many of these appeals dated back five years or more. Rehearing these appeals would pose an enormous expense to the State, quite apart from all other undesirable consequences. LSSA instead suggested that all the appellants identified for an appeal re-hearing, because of the termination of the contracts of the previous Appeal Board, should be granted residence in South Africa.
It would be most undesirable if the present functions of the Standing Committee for Refugee Affairs were to devolve upon the Director-General. It was of crucial importance that the Standing Committee for Refugee Affairs retain its independence as presently provided for under the Refugees Act, whatever form the Committee was to take under new legislation.
It was of vital importance that any new policy recognised refugee status once and for all, until cessation. The inconsistent allocation of validity for a status certificate, ranging from two to four years, was incompatible with the right to refugee status as provided for in the international instruments to which South Africa was a signatory, and the present Refugees Act.
The significant attempt by the previous Deputy Minister to make the period of validity of a status certificate be four years was most praiseworthy, but it appeared that this was not being implemented. LSSA said there should be synchronicity between status certificates and refugee identity documents, or the one document should replace the other. The failure by DHA to provide refugee identity documents had caused untold inconvenience, more acutely recently because of FICA regulations, hospital admissions and schooling requirements. Finally, provision should be made for properly qualified and trained refugee status determination officials.
LSSA summarised that in South Africa and globally, immigration and refugee laws, policy and management were all a means to an end, and should not be seen as an end in themselves. LSSA saw the main challenge facing Parliament as identification of the ideal outcomes. LSSA was grateful for the opportunity to present, would be pleased to have further engagements on the issues and offered its expertise to the Committee where it was felt that LSSA could assist.
Ms Petersen-Maduna commented that spaza shops were not disliked because people were jealous, but because of the way the owners treated people. She had seen spaza shops deny the South African older people the chance to vote, by withholding their IDs.
Mr Kerfoot responded that he would like to see South Africa improve for South Africans, asylum seekers and refugees. Confiscating of documents had been a problem for many refugees too, but the bottom line was that everyone in the country must all obey the laws.
Mr Mnqasela expressed concern that Angolans were being asked to go back to Angola.
Mr Mnqasela said it was a serious allegation that home affairs officials were xenophobic and objected to such a general remark, saying that this could not be claimed without pointing out specific instances of xenophobia.
Ms Bothman asked what the objectives were and if they would continue to destabilise the DHA’s plans. If poor communities were relying on these asylum seekers, this posed the question whether they were genuinely asylum seekers or were entering the country to do business. She questioned also the impact of possible political action against such people for the security of South Africans. She asked if LSSA was more concerned with refugee or South African interests.
Mr Kerfoot responded that LSSA was making proposals to achieve a fair and balanced system. Swift, fair and efficient adjudication would eliminate the problems. It was ludicrous that there were high numbers of asylum seekers from countries that appeared to be safe, such as Malawi. If the system was efficient they would not come to South Africa, because they would understand that in six weeks their application would be adjudicated and refused. However, at the moment they were able to stay for five or six years until the decision was made. Mr Kerfoot also answered the question on asylum seekers operating businesses by saying that their success in doing so was irrelevant to the fact of their seeking asylum.
Ms Bothman wondered if DHA had had enough time to make provision for opening new offices. Processes would have to be followed, although CoRMSA clearly wanted instantaneous results. Responsibility also lay with NGOs, who would need to provide for people in the case of overflows, and it was not fair simply to point fingers at DHA.
Mr Kerfoot responded that many NGOs had offered assistance to DHA in many ways over the years. The University of Cape Town had assisted with training. CoRMSA and other NGOs had offered training but this offer was not taken up.
Ms D Mathebe (ANC) said that she had been a refugee, had lived in a camp and had never had freedom of movement or freedom of economic viability. There were restrictions and rules. She questioned why South Africa should provide more than other countries in this regard.
Mr Kerfoot responded that he understood that in camps freedom of movement was restricted. That did not mean that South Africa had to follow the same example, as this was contrary to the Constitution and the Act.
Ms Mathebe asked if the LSSA could offer any suggestions on closing the current loopholes in the Refugee Act.
Mr Kerfoot responded that there were few loopholes in the Act, and if officials did their work more promptly, the problems could disappear.
Mr McIntosh was encouraged to hear of the LSSA committee, said that the legal training and positive attitude of presenters was appreciated and their presentation was interesting. Migration and immigration had benefited South Africa hugely. Studies of people who had come into the country were astonishing. There was a need to manage this influx, and also to manage skilled and semi-skilled workers.
Ms Makhuba asked what measures could ensure that the permit regime was more efficient and effective, and wondered if it could be viable to follow the model of outsourcing as had been done in some developed countries.
Mr Watters responded that it was viable to follow other international models, but a South African model should ideally be found, by learning from other countries.
Ms Gaum said that important suggestions were coming from the presentation on migration. The country needed to attract skills. He asked if it was doing enough to attract these skills. It was important to make it clear that the rights of refugees would be preserved, but that South Africa had no intention of becoming a haven for refugees, or a country that would continue to attracted refugees as in the past, and called for assistance in tightening the legislation.
Mr Kerfoot said LSSA agreed that regional integration was key, and endorsed the UNHCR position that SADC was a very important vehicle. The issue of the legality of a safe third country was raised in court in 2001/2002, when it was held that this was not legal under the current Refugees Act. Taken to its logical conclusion, this would create a cordon around South Africa where no one would be able to enter other than by ship or by plane. There must be a greater, serious engagement with SADC and other neighbouring countries. South Africa did bear a large burden, but this could be mitigated by proper agreements with neighbouring countries.
Mr Watters had many ideas around permits and requested permission to submit further thoughts in writing to save time.
The Chairperson thanked all the presenters for their contributions and adjourned the meeting.
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