The United Nations High Commissioner for Refugees (UNHCR) gave a presentation outlining their function and work in South Africa, including their mandate, the people included under their jurisdiction and both the international and South Africa’s national legal framework which governed refugees. Global and continental statistics were given, including numbers of refugees and displaced people, the countries producing refugees, countries to which applications were made and statistics relating solely to South Africa. UNHCR made observations about South African and identified key areas of concern in their refugee and asylum process, including inefficiencies in the Refugee Status Determination (RSD) process. They informed the Committee of their current activities in the country and their role in advocacy, coordination and implementation through various partners. They gave their budget and expenditure on each of their implementation partners, and advised Parliament on what they could do to assist in the protection of refugees.
Members’ questions highlighted the application process. Why do specific countries appear to receive the bulk of asylum applications? What makes them appealing? South Africa’s legislation on refugees may be good, but there is a problem with the backlog of applications. What is the UNHCR’s position on this? Is there sufficient legislation in place? They asked about UNHCR's engagement with DHA on a possible review of the policy on refugee reception offices at the border. Concern was raised about xenophobia, human rights issues, Lindela and abuse of South Africa’s asylum system. What are the social cohesion initiatives? Does UNHCR assist in combating unemployment and poverty also faced by the host population? How can asylum seekers and illegal immigrants be differentiated? How does UNHCR deal with people who come into the country and commit crime? Is it possible to make those coming into the country aware of the issues already faced by South Africa?
UNHCR gave a second presentation on statelessness, outlining their mandate and the existing international and national legal framework relating to it. The definition of a stateless person was given alongside case examples of statelessness and what countries could do to address the problem. UNHCR detailed their role in combating statelessness, including their activities in identification, prevention, reduction and protection. They discussed the 1954 and 1961 Conventions relating to statelessness and the numbers of countries who had acceded to them. South Africa had not acceded to either. UNHCR encouraged them to do so, amongst several observations and recommendations about statelessness in South Africa made to the Committee and summarising their ‘I Belong’ campaign to end statelessness in 10 years.
Concern was expressed by members about the lack of statistics referring to statelessness within South Africa. How serious is the problem? Could UNHCR provide campaign material that South Africans could identify with? How many stateless persons are in the country? Regarding the Conventions, does the UNHCR know why South Africa has not yet acceded to either of them yet? Are there gaps in legislation? Could they be reviewed or rectified?
United Nations High Commissioner for Refugees (UNCHR) on its refugee work in South Africa
Ms Clementine Nkweta-Salami, UNHCR High Commissioner for Refugees Representative for South Africa, introduced the presentation with a video demonstrating the problems that caused people to be displaced and statistics relating to refugees. It contained footage of conflict zones and refugee camps and highlighted the on-going problems faced by people in Syria, where a third of the country has been internally displaced. At present, there are 1.1 million asylum applications lodged with governments or the UNHCR and 51.1 million people displaced globally, thousands of whom die in sea crossings.
Ms Nkweta-Salami continued by outlining the UNHCR’s role in international protection. They have helped 33.9 million people and are governed by the Executive Committee of the High Commissioner’s Programme (ExCom), approving their programmes and budgets and providing guidance on international protection. UNHCR has responsibility for the protection of uprooted people and finding permanent solutions to resolve their displacement. State signatories to the convention are primarily responsible for the provision of international refugee protections. UNHCR’s mandate extends beyond refugees to asylum seekers, stateless persons, internally displaced persons (IDPs) and returnees. Asylum seekers are those awaiting a resolution to their case that determines their refugee status, IDPs are obliged to flee as a result of public disorder, violence, combat, within country of origin and returnees are those who are back in their country of origin.
The legal framework for UNHCR’s work was made up of both international and national legislation. Highlighted was the 1951 Geneva Convention on the Status of Refugees, the 1967 Protocol on the Status of Refugees and the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa. The definition of a refugee is given in the 1951 Convention and was extended by the OAU. Global trends in displacement were outlined alongside Africa, with 16.7 million refugees worldwide and 2.3 million in Africa. There are 33.3 million people internally displaced and 16.8 million of those are on the African continent. Of the top 10 refugee producing countries, Afghanistan and Syria were the highest at 2 556 600 and 2 468 400 people respectively.
South Africa had the third highest number of asylum applications in 2013, following Germany and the United States with 70 010. There are an estimated 200 000 asylum seekers in the country and 65 881 recognised refugees. The legal framework within the country was made up of the Constitution, South Africa’s Refugees Act of 1998 and its Amendment Acts of 2008 and 2011, in addition to some provisions in the Immigration Act. It has a commendable asylum policy due to its provisions of basic rights. However, it faces challenges with unemployment, poverty and inequality that fuels xenophobia. The high number of applications and abuse of the system affect its efficiency. These are areas of concern for UNHCR, alongside the ongoing policy review regarding immigration legislation.
UNHCR was the first human rights agency back in South Africa at the end of apartheid to assist with the return of those in exile. It has a role in coordination with government and civil society, advocacy, technical support and capacity building. It offers advice on asylum law, regional refugee law training, workshops and seminars on International Refugee Protection for various target groups such as immigration officers. They support government efforts and work through implementing partners, offering legal advice and counselling in five major cities, social assistance, language training and income generating activities to refugees. They support their integration, promote self-reliance and social cohesion, assist in finding durable solutions to their situation and advocate for the ratification of the Convention on Statelessness.
UNHCR’s budget for South Africa is $35 322 437 and covers all regional activities. The budgets and activities of UNHCR’s several implementing partners were listed in the presentation, including Refugee Social Services (RSS), Future Families, StudieTrust and the UCT Refugee Rights Unit.
Observations and recommendations made by the UNHCR included praise for the guaranteed access to asylum, steps to look at the issues affecting asylum claims and the implementation of the special project allowing Zimbabwean nationals to renew their work permits. Suggested improvements were:
• Assessment of the Refugee Status Determination (RSD) process and implementation of a quality control initiative
• The development of an RSD learning programme
• Finalization of the regulations to the Refugee Amendment Acts of 2008 and 2011
• A review of standards at refugee reception offices
• The implementation of a national plan of action to combat xenophobia.
Parliament could contribute to the protection of refugees by promoting respect for refugees amongst their constituents, ensuring adequate funding to national refugee protection structures, overseeing actions of government with regard to RSD, seeking UNHCR’s comments on proposed legislation affecting refugees and inviting them to assist in the establishment of a national legal framework for refugee protection.
The Chairperson said that UNHCR did not refer to the state of the countries from which individuals are coming from. There are specific countries that appear to receive the majority of applications. Has UNHCR done analysis on why it is preferred? Why are, for example, the United States and South Africa preferable to an individual that feels vulnerable?
Ms Nkweta-Salami responded that there are many countries which have had political and security related problems that are well known. UNHCR have a presence in those countries to analyse the flows out of the country as well as looking at whether there are opportunities for people who have left to return. They have an obligation to work with those countries to ensure the conditions are right for encouraging refugees to return. They are continually trying to identify solutions and voluntary repatriation is key. UNHCR tries to ensure refugees can make themselves heard in on-going peace process, but often refugees return before they ready for them so they must continual monitoring the situation. As to the reason why are some countries preferred, sometimes it is based on proximity – they come from neighbouring countries because many are fleeing for their lives. Those that border a country in conflict, for example, are generally the largest recipients. In countries where refugees come from further afield, it can often be attributed to law. South Africa is globally very progressive in the area of refugee law in that they allow freedom of movement and access to employment. The reservations of other countries mean they do not offer this, restricting basic liberties. South Africa is a model amongst nations, embodying basic human rights principles where rights can be enjoyed. The ability to seek and obtain employment and fulfil aspirations is key, as many people have skills which are wasted in refugee camps and often have to make perilous journeys to be free from persecution.
The Chairperson said it was evident that the Department of Home Affairs (DHA) was expected to play a security role as well. Is UNHCR aware of that?
Mr Nkweta-Salami replied that the UNHCR tries to ensure refugee issues are not looked at through the lens of security, it is a humanitarian crisis and this is maintained across the board.
Mr M Hoosen (DA) said he had had interactions with organisations working with asylum seekers in South Africa and, whilst there had been a reduction in numbers, some asylum seekers had been waiting for a long time to get any kind of status. Their children could not attend school, they were unable to open a bank account and it was not just for three months but often many years. There is a lack of employment, homelessness and poverty in the meantime simply because the DHA cannot issue their IDs on time. Looking at the Lindela human rights violations would suggest there are restrictions on liberty. Many asylum seekers have to keep renewing their permits and consequently must live near centres. What is UNHCR’s position with regard to Lindela? Have they been working with the government to rectify the situation? Is there sufficient legislation on refugee rights? It appears they are not being implemented in a manner that respects human rights.
Ms N Mnisi (ANC) said it was eye opening for members to understand the dynamics of asylum seekers. The statistics for 2013 indicate over 200 000 asylum seekers in South Africa. Unlike many other countries South Africa saw a decline, but this still makes up two-thirds of Africa’s refugees. How have UNHCR assisted in combating the smuggling of people into South Africa? Regarding xenophobia, what is included as part of the social cohesion initiatives that are funded by UNHCR?
Ms T Kenye (ANC) asked about UNHCR's engagement with DHA on the possible review of the policy on reception offices for refugees and their processing at South Africa's borders. What is UNHCR's positioning? With regard to xenophobia, can UNHCR assist in fighting xenophobia? The presentation mentions skills training, but there is poverty and unemployment in the host population. Does UNHCR have a part in educating those in the host population too? There may be instances where refugees are equipped with skills that the host population do not have. Both parties need assistance in order to effectively interact with one another. The legal framework refers to other human rights issues. How are those specifically relating to refugees monitored? How are the challenges of the conventions combated? On the Cessation Clauses, what is the cause of these?
Ms D Raphuti (ANC) commented that she was proud that South Africa had a progressive refugee policy. The lady who does her hair is not South African, but she is leading a better life than her South African counterpart which illustrates their progressive refugee policies. Two weeks ago the Committee was discussing the AU Agenda 2063 and it would be proper that the UNHCR also revisits this. As a woman, she recognises a need for radical development and women's role in preventing man-made calamities that lead to their displacement.
Mr A Figlan (DA) referred to the statistics indicating the 16.7 million refugees around the globe, with 2.3 million of them in Africa. Is this an estimate or is there a database? To what extent does UNHCR assist the South African government in dealing with stateless claims in order to help those who are stateless to return to their country?
Mr D Gumede (ANC) said there were practicalities of democratic dynamics. In a democracy agents do what their voters want them to do, and are guided by principles of human rights conventions and the Constitution. Regarding funding, the proposal is that there should be adequate funding for refugee centres. What does UNHCR need that is underfunded? What if improvements are beyond South Africa’s capacity? There is already a problem with unemployment and some foreigners are abusing the VAT system. What have been UNHCR’s findings? The problem is in differentiating between asylum seekers and illegal immigrants. How can this be done? Some people come to commit crime; others come under UNHCR’s given definition. Some people abuse their status in various ways. What should be done about those who come and commit crime but have refugee status? The proposals are fine but there should be a limit, and that should be within South Africa's Constitution and conventions. Beyond that they should not go further.
The Chairperson asked how UNHCR dealt with people who were a risk to the country. How can South Africa effectively deal with illegal immigrants? What advice can UNHCR offer South Africa with regard to the risks involved in assisting people who are genuinely fleeing their country? Are the estimated 200 000 asylum seekers unrecognised? Does it mean they are still in the country? UNHCR recognises the challenges South Africa faces and they are indicators of civil unrest. People may be attracted to South Africa by its friendly laws, but are there any interventions that can be made with prospective applicants to ensure they are aware about these issues within the country? There is a situation in Lindela where some people lie about their countries of origin. When the countries are contacted, they say that they do not know them. Is there any intervention that can prevent this situation? The issue that arises is people staying at Lindela beyond the time limit because there is nowhere else to put him or her. What can UNHCR do to help? People coming into the country must comply with its laws. The incorrect information leads the government to break its own laws.
Ms Nkweta-Salami said the UNHCR was fully aware of the challenges in the implementation of the asylum system in South Africa, but its legal framework was still the best. There is a considerable backlog and there are challenges in renewing permits - new legislation could further complicate issues. UNHCR will continue to engage with the government on how some of these issues can be addressed and in the past brought in judges to assist in clearing the backlog. However, it is has been recreated and there are still challenges in clearing it again. The reality is that when the numbers are far higher and it needs to be addressed to allow individuals to be given a status. The challenges in South Africa are considerable, but there has never been an extensive number of options for people who want to work. People in search of a better life are drawn towards South Africa’s job market and they therefore present themselves as refugees. Those who want to work should be able to present themselves to the opportunities available and have several avenues to do so. UNHCR’s aim was not to whitewash the problem or pretend it did not exist, and they have submitted a number of opinions, documents and suggested courses of action to support the government in addressing the issues.
Regarding the decline in the number of asylum seekers, the inflated numbers were due to arriving Zimbabweans. UNHCR is monitoring countries to predict where the outflows are most likely to be. They adjust and advise government accordingly. Mixed migration flows are made up of those in search of a better life, those who are trafficked, smuggled and those fleeing persecution or conflict. States need to put in place measures and procedures to identify these groups to come up with a clear decision on their status or continued stay within the territory, engaging SADC member states and assessing the way in which they address the problem. This is carried out alongside UNICEF, child protection organisations and NGOs supporting woman who are victims of trafficking or smuggling amongst others. Before the first quarter of 2015 UNHCR will be able to share this strategy, but part of the challenge is in building capacity. Those at the front line need the ability to distinguish the profiles and needs of those arriving and where to direct them. Anti-xenophobia initiatives are necessary – xenophobia can lead to loss of life and it is an issue the government needs to grapple with. It is their role to ensure that where refugees are present, there is peaceful coexistence with the community. Such issues are often linked to poor service delivery and demonstrations that lead to attacks on foreigners, in addition to targeted attacks purely because someone is not South African. They have commissioned a study on looking at their involvement with xenophobia and the outcome will hopefully further inform their outlook and where to improve. There will be a workshop to discuss the findings and comments will be invited from all sectors, including the DHA. It is important that when incidents take place the relevant authorities play a role and such crimes are not characterised by impunity. Sometimes victims do not speak up and those that do, get caught up in processes that result in the abandonment of their claims. UNHCR work to ensure asylum seekers and refugees are safe in their country of residence. Some South Africans believe that all foreigners in the country are there in search of a better life.
On the establishment of reception centres at South Africa’s borders, UNHCR's view is that they should not be used, but recognise they exist in a number of states. They have shared advice with government on what are considered to be minimum standards, but UNHCR does not fund reception centres so government will have to pay for them. They nevertheless monitor them to make sure human rights violations do not take place and empower refugees to speak for themselves, although resources are limited. There are a number of school and grassroots programmes, and work within communities to encourage people to speak up if the rights of those under UNHCR’s jurisdiction have not been respected.
The Africa Peer Review Mechanism looks at states’ compliance with various conventions regarding refugees. In as much as the convention defines when a person should be recognised as a refugee, it also identifies when it ends. Peace has been restored to Angola, so its people cannot be applicable for refugee status. They were given options – those who wanted to return, those who felt they could not and those who could access opportunities in the countries they were in. Women have a key role in the peace process as they, and children, are the primary victims of displacement. In terms of funding, they do not have the figures for refugee centres, what needs to be funded and how much is required. In discussions with government, however, they have made it clear that reception centres will not receive any funds. UNHCR makes a strong recommendation for the government to address the problem in a manner which would not force asylum seekers to stay in one location.
As for the challenges faced by South Africa due to high unemployment figures and refugees flouting regulations, they are expected to comply with the law. UNHCR remind them that they have duties and obligations to the country they are in. However, they cannot be returned to a country where they will face persecution. In distinguishing criminals from genuine asylum seekers, a well-capacitated border agency who will ensure cases are dealt with, is important so that those who are found not to need protection are immediately dealt with. It is a problem which needs addressing in a comprehensive manner. A strengthened and more efficient asylum process would allow government to deal with these cases. Refugees are not above the law and cannot conduct themselves in an illegal manner, but all states are expected to uphold the principle of not returning anyone to a country in which they could face persecution.
Looking at statistics it was reported that there are 200 000 asylum seekers, of which 65 000 have recognised status leading to the conclusion that the remainder are unaccounted for, or are in the country illegally. RSD is an ongoing process and the government’s capacity is limited. There will be challenges in addressing the full caseload in a given period. Some of these people may no longer be present in the country; some are only transiting in South Africa and move on to other countries. UNHCR recognise these challenges and DHA could respond to question about the figure of 200 000. In relation to the percentage of people returning, most Angolans have return as with most on the African continent. Those who have been refugees for a long period of time are beginning to be integrated, but generally people return home voluntarily. Often hundreds of thousands are assisted to return.
In terms of unemployment, the correct consciousness to allow people to integrate is needed. They are working to better articulate needs and rights of refugees. Refugees often compete for jobs but the solution is not to deny them access and instead lies in addressing unemployment challenges across the board for the entire population. UNHCR are working with COSATU to see the extent to which their presence can be recognised, and they are paid and treated according to the law which governs that particular sector. They cannot become an underbelly of those who receive below the minimum wage.
Mr Arvind Gupta, UNHCR Regional Protection Officer, referred to the issue of people not giving their true nationality. The figures of asylum applications in 2013 are not annual, but rather the culmination of those applications that are pending. It is not possible to subtract one from the other because the asylum applications recorded in 2013 is a standalone figure. Lindela is not a prison, it is a holding centre for people the government wants to deport. People end up staying for an extensive length of time, making it a detention centre with a mix of migrants, refugees and asylum seekers. Those who have broken immigration laws must be dealt with differently to genuine asylum seekers, and the distinction made very carefully. Being an asylum seeker with an expired certificate should not by itself be a reason for deportation. Those with rejected applications fall within the same framework of other immigrants. Recognised refugees should not be held in Lindela, and UNHCR are working with authorities there to try and prevent this, ensure individuals are looked after and those who should not be detained are released. People who give the wrong information about their country of origin is an important question but a is difficult one for UNHCR to respond to. They verify with local offices on the ground, and if they do not have the correct identity or their story is not credible, that is as far as they are involved, and it becomes a police matter.
The Chairperson said there was a need to separate economic migrants from asylum seekers. The system for asylum seekers is currently clogged by people who utilise it when they do not deserve to be recognised, delaying genuine applications from being considered and processed in time. If there are 50 applicants and only 2 are genuine it creates a problem for the DHA and causes backlogs. Those who are in the country lawfully should not be discriminated against and treated accordingly, but they should adhere to the laws of the country.
Statelessness: presentation by UNHCR
Ms Nkweta-Salami outlined the legislation from which the UNHCR derives its mandate on statelessness, including the 1995 UN General Assembly Resolution 50/152 and the 2006 UNHCR ExCom conclusion on identification, prevention and reduction of statelessness and protection of stateless persons. The international legal framework included 1954 Convention relating to the Status of Stateless Persons, the 1961 Convention on the Reduction of Statelessness and various human rights legislation. Nationally, the South African Citizenship Act and Amendment Acts provide some guidance on statelessness.
A stateless person is defined in the 1954 Convention as a person who is not considered as a national by any State under the operation of its law. Case examples include members of ethnic minority groups who are not eligible to claim citizenship in their country, undocumented descendants of illegal economic migrants and children born to foreigners who do not have nationality in their country of residence. A video was played to the Committee illustrating a the case of a stateless person in Lebanon and the subsequent challenges she faced on a daily basis.
To address the problem UNHCR encouraged states to accede to the Statelessness Conventions, institute safeguards against it, review multilateral and bi-lateral agreements with other states and undertake population profiling to establish nationality gaps, amongst other suggestions. UNHCR are undertaking various activities, including promoting accessions to the Statelessness Conventions, mobilizing international support, examining statelessness claims and reporting on the implementation of legislative provisions. They are analysing gaps in nationality law, promoting awareness on the importance of civil registration at birth and advocating for legislative reforms to prevent the problem. In terms of reducing statelessness, UNHCR assists in capacity building of state procedures, information campaigns and the provision of legal assistance and technical advice. They are in the process of developing protective systems for stateless persons.
The presentation illustrated the number of states having acceded to the 1954 or 1961 Conventions since their establishment, standing at 83 parties in total. In Southern Africa, Mozambique, Lesotho and Swaziland have acceded to both Conventions, and Botswana, Malawi, Zambia and Zimbabwe to only the 1954 Convention. South Africa had not acceded to either and UNHRC consequently recommended their signing of both. They pledged to consider them in 2011 and are already a party to the African Charter on the Rights and Welfare of the Child. There is a campaign to end statelessness in 10 years called I Belong which calls on government to ratify the Statelessness Conventions, supported by an open letter signed by Archbishop Desmond Tutu and the UN High Commissioner for Refugees.
The Chairperson had to leave and Mr Gumede was made the Acting Chairperson.
Ms Mnisi asked whether the commission had any data on the numbers of stateless people likely to be in South Africa. As South Africa has not signed yet, what does the commission understand is the historic reasoning for its not acceding to the conventions?
Ms S Nkomo (IFP) referred to the statistic of 10 million stateless persons. Specifically, how many of these are in South Africa? Members need a picture of how serious it is. As for the matter of ethnic minorities, is there a similar situation in South Africa? Is there a problem members are unaware of? Research showed problems with the children of mine and farm workers. How serious is it? The lady in the video was from Lebanon, but it would be useful to see South Africans facing such problems because it is something they can identify more closely with, such as a woman from the vineyards or mines informing them of the challenges they are faced with in a local language. The I Belong campaign could be a programme that would help to achieve the 10-year target. If UNHRC were to give me the information to market this campaign, what would they use? What were the reasons South Africa did not sign up?
Ms Kenye asked about the case of marriage between a stateless person and a national that is not registered. Whose side do the children take? What can be done about the death certificate for a stateless person? What is the solution with regard to the children? The statistics for South Africa are needed so members can take such documents into their communities. More information is needed on the African Charter on the Rights and Welfare of Children. Is there is a gap in the Conventions? Stateless people still exist. Could some of the issues could be rectified or reviewed? They were adopted a long time ago, what can be done now using the same resolutions that they contained?
Ms Nkweta-Salami said the key challenge with statelessness was the absence of data. There was very little in relation to stateless people or people at risk of it. UNHCR need to address the issue of identification by carrying out a mapping exercise to evaluate who those at risk in the territory are. The data is not readily available, so part of their campaign is mapping. They do not have a government-sponsored campaign. She did not know the historical reasons for South Africa not acceding. By making the pledge to consider it, it was thought there would be no impediments. UNHRC had not received anything officially but would rather have it sooner rather than later, so if South Africa shares the impediments to ratification with UNHCR, they can assist in addressing the problem.
Regarding discrimination, the example was discrimination based on ethnicity which they are not aware of in the South African context. In terms of mineworkers and farm workers, there is a problem that needs to be stopped so it does not perpetuate from generation to generation. UNHRC have various videos that depend on the target group, but they felt it would be good to give the global mandate through the lady in Lebanon. They are still waiting for documents from their headquarters with information regarding South Africa that can be used to promote the campaign. When they are received, they will be made available to members so they can use them in their communities. The need for relevant information and clips in local languages has been taken note of and is something which UNHRC will do their best to address. The Conventions stood the test of time and if there are gaps they will rise to the top as they are acceded to. It is hard to open debate on existing conventions because many requests to revise the Refugee Convention, for example, were actually attempts to diminish the restrictions and protections in them.
The UNHCR offices in Cape Town and Pretoria are willing to address any further questions, if members feel they do not have a complete response. She wanted to highlight that UNHCR’s role in addressing xenophobia was not a primary concern of the organisation, it only related to the populations with which they were concerned. It is a responsibility of government and communities to intervene and create an environment that reflects its constitutional, national and international obligations.
The meeting was adjourned.
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