Asylum statistics: Department Home Affairs briefing; Immigration Amendment Bill 2016 deliberations

Meeting report

Asylum trends in South Africa: Department of Home Affairs (DHA) briefing
Mr Mandla Madumisa, Acting Chief Director: Asylum Seeker Management, Department of Home Affairs, took the Committee through a presentation in which he provided an overview of 2015 Asylum Trends; considered trends analysis in terms of refugee status determination, which led to refugee status determination in terms of unfounded cases for appeal, manifestly unfounded cases for review and refugee status withdrawal. He talked about the performance of the Refugee Appeal Board (RAB) and the Standing Committee for Refugee Affairs (SCRA); about the local integration through the issuance of refugee identity document (ID) and refugee travel documents and about exiting the asylum regime of finally failed asylum-seekers, in terms of a referral to the Inspectorate for Deportation.

In 2015, there had been a decline in the numbers of new arrival asylum-seekers and applicants. Cumulatively, the figures for registered asylum applicants for the past ten years was 1  082  669. By gender breakdown, for 2015, the asylum applicants were male dominated, with males representing 67.42% whereas females represented 32.58%. More female asylum applicants came from Zimbabwe while more male applicant came from Ethiopia. A strong influx of asylum-seekers was composed by the young asylum-seeker population. Indications were that the young adults category was a mixed basket of various skills, which included highly-skilled, semi-skilled, and low-skilled migrants who knowingly or unwittingly found their way into the asylum regime.

In 2015, the top ten countries that were sending refugees into South Africa were ranked as follows: Zimbabwe, Ethiopia, Nigeria, DRC, Bangladesh, Pakistan, Malawi, Somalia, India and Ghana. A remarkable increase of asylum applicants from these countries was noticed. The top fifteen sending African countries were ranked as follows: Zimbabwe, Ethiopia, Nigeria, DRC, Malawi, Somali, Ghana, Burundi, Mozambique, Uganda, Congo-Brazzaville, Cameroon, Tanzania, Lesotho and Senegal.

Mr Madumisa noted that although a higher number of asylum applicants came from Zimbabwe, Zimbabweans were not giving a credible reasons why they were fleeing their country. For example, they responded to an English journalist who interviewed them, to the effect that they were coming into South Africa for reasons of working and studying. The main reason for seeking asylum as provided by a few Zimbabwean asylum applicants was related to the political conflict between President Mugabe’s ZANU-PF and Morgan Tsvangirai's MDC. Ethiopians referred to political marginalisation of Oromo people. Nigerians had no credible claim in relation to international protection, although a few of Nigerian asylum seekers did refer to Boko Haram’s armed conflict. Asylum applicants from the DRC would refer to sexual violence and forced disappearance. There was armed conflict in the Eastern DRC, although the armed conflict was not affecting DRC’s citizens from other regions. There was difficulty in distinguishing Congolese from the eastern part of DRC and other regions, on the one hand, and Congolese from DRC and Congo-Brazzaville, on the other. Refugee Status Determination Officers were encountering that particular problem.

Mr Madumisa noted that South Africa had concluded a bilateral agreement with the Bangladesh government to allow Bangladesh people to have access to the labour market. Reasons provided by them to seek asylum in South Africa were not provided.

In relation to African countries, Mr Mkhize noted that asylum applicants from Tanzania, Lesotho, Mozambique, Malawi, Ghana, Congo-Brazzaville were merely abusing the asylum system. Actually, most asylum applicants had no valid claim in relation to international protection, because they were only accessing South Africa to seek employment. On this basis, applications were rejected as either abusive, fraudulent, unfounded, or manifestly unfounded. The number of applications approved in terms of section 24(3)(a) of the Refugees Act was 2 499 – meaning that they were recognised as genuine refugees.

By contrast, 14 093 applications were rejected as unfounded in terms of section 24(3)(a) of the Refugees Act. Those applications that were rejected in terms of section 24(3)(b) of the Refugees Act as abusive, fraudulent and manifestly unfounded were 64, 10908 and 33076 respectively. Abusive claims were situations where applicants whose applications were rejected would return home, and again come back to seek asylum on the basis of the same story – simply because there was no change in the political environment of the country of origin.

The 2015 refugee status determination trends showed a considerable decrease in approvals, whereas the number of rejections of asylum cases as fraudulent increased sharply. Since late March 2015, the DHA introduced the monitoring mechanism of RSDO decisions through SCRA. Following the implementation of the monitoring mechanism, most approvals were mainly family-joining. Approvals before then had been informed by a variety of reasons that might be outside the protocols and conventions for international protection.

Following the SCRA process of monitoring the quality of RSDO’s adjudication and decisions, RSD figures shifted drastically from approvals and unfounded decisions, towards manifestly unfounded decisions, thus, confirming the DHA’s assertion that most new asylum applications were not genuine asylum-seekers but rather persons seeking employment or other socio-economic opportunities in the country. However, this intervention had since been discontinued, given capacity challenges at SCRA to monitor this area of work. For the last four years (2011-2015), rejected applications for asylum amounted to 311 795. In 2015, the top five nationalities that were recognised as refugees were from Ethiopia (1 001), Somali (619), DRC (190) and Eritrea (44).

Mr Madumisa said that it was possible for applicants to appeal against a rejection decision. He noted that 1  732 cases were finalised by the RAB. Out of 1   32 finalised cases, 1  407 were confirmed unfounded and only 118 cases were upheld. The RAB was facing a backlog of 12  361 cases. This deficit added to the previous years’ backlog.

By 2015, the number of cases to be reviewed by SCRA stood at 44 048. Only 20  815 cases were reviewed in 2015. 16  884 cases were upheld. 1  777 cases were set aside and 2  154 were referred back to RRO.

Mr Madumisa provided a breakdown of applications for refugee certification in terms of section 27(c) of the Refugees Act. In 2015, there were  2  104 new applications filed and 2 237 applications were considered, of which 684 applications were granted, and 681 were not granted. Some applications resulted in the withdrawal of refugee status. 802 applications were not approved and in some refugee statuses were withdrawn. Granting refugee certification spoke to refugee durable solutions and provided for a mechanism to apply for permanent residence.

Mr Madumisa noted that out of 16 681 applications for refugee ID received by the DHA between January and December 2015, 8 614 refugee IDs were issued. In the same period, out of 7 030 applications, 2 078 refugee travel documents were issued.

Mr Madumisa concluded that the RROs were overwhelmed by the high number of appeal and review cases that were not finalised timeously at the level of both RAB and SCRA. The Pretoria RRO remained the preferred destination for new asylum applicants, despite all the challenges that they encountered, which included long queues and waiting periods. He expressed his concern that young people continued to dominate the asylum registration. Overall, the rejection rates stood at 96%.

Discussion
Mr B Nesi (ANC) sought clarity on the issue of corruption and whether the RAB officials were corrupt. He asked why the DHA focussed on brothers and sisters from the African continent and the presentation spoke little or nothing to Europeans. He also noted that nothing had been said about whether or not there was a refugee camp, on why refugees should be granted refugee IDs and refugee travel documents if they stayed in the refugee camp. He was of the view that refugees should not travel, simply because they had come into South Africa for protection. They should not be allowed to go out of the country.

Ms O Hlophe (EFF) seconded Mr Nesi and noted that an inference that could be drawn from the refugee statistics that Europeans were not seeking asylum in the country. The manner in which Africans were portrayed was that they were coming into this country, but South Africans were not going to their countries. Indeed, some asylum-seekers were in the country – not seeking asylum – but to seek socio-economic opportunities. This begged the question what would happen if their applications for asylum were rejected. Why was the government not approaching the sending countries to find a solution to this migration? She sought clarity on whether a refugee who was granted a permanent residence permit would be entitled to vote. She asked why the Government was apparently adopting more strict requirements in relation to fellow Africans. She stressed that she was against Operation Fiela, simply because it was discriminatory as it targeted only fellow Africans.

Mr A Figlan (DA) sought clarity on the reasons for a drop in registration of asylum applicants from 2013 to 2015. He asked for clarity on the types of skills that they had - general skills or professional skills? He also asked if asylum-seekers were monitored in accordance with their age classification? With regards to adjudication of cases at appeal or review level, he expressed his concern about the slow pace of considering reviews and appeal applications, and sought clarity on the reasons behind the delays.

Ms D Raphuti (ANC) was convinced that Africans were pouring in to South Africa just for adventure and said that, other than for South Africans, there was a norm amongst Africans to go around the world and explore opportunities. In African traditions, men were classified as warriors who should not stay at home. In their adventures, young Africans tended to come into the country and marry South African daughters. Many Nigerians were said to be married through marriages of convenience. She wondered where they would get fake documents to use to get married, and what happened if they were caught using fake documentation; in particular, was the DHA arresting any people found with forged documents? Could male asylum applicants claim that they were raped, too? She asked what was the basis of granting asylum to Congolese men?

Mr D Gumede (ANC) expressed his concern about the asylum system being used by rebels, fugitives and terrorists and sought clarity on whether the DHA had a risk management assessment to assess the risk that asylum applicants could pose to South Africa, including the potential for the government to be embarrassed or face criticism from the international community. He would have thought that refugees ought to stay in camps and should not be allowed to compete with locals, so he questioned why South Africa was allowing refugees to work and study, and what kind of assessment was being done to determine whether the person was not a threat to society? He felt that the asylum system was being used as a tool to abuse South Africa’s culture of human rights. The DHA should bear in mind that human rights had limitations. 

The Chairperson agreed with Mr Gumede, and noted that South Africa was a sovereign country, which respected sovereignty of other countries. He drew attention to the situation of the M23 rebel group that were driven away from the Eastern DRC, and the failed coup d’état in Burundi, and asked if some of the people involved in these events were amongst asylum applicants in South Africa. He wondered if there was any mechanism to determine whether an individual was a terrorist or a member of a rebel group? He also wondered if there was any committee or group of experts that were sent into the sending countries, specifically, into the conflict regions – such as Kivu – to determine their language, culture, and reasons for conflict, to avoid the situation where individuals coming into South Africa might be pretending to be from those regions. Taking into consideration the high number of rejections, he sought clarity on whether rejected applications were an underlying factor for having a higher number of undocumented or illegal immigrants in the country.

Mr Thulani Mavuso, Deputy Director General: Institutional Planning & Support, DHA, responded that Members should understand the clear distinction between asylum-seekers and refugees. An asylum-seeker was defined as a person who was seeking international protection but whose request was not yet determined. A refugee was defined as a person whose application for asylum had already been approved and who was therefore recognised as a genuine refugee. Rights that were accorded to asylum-seekers were different to that accorded to refugees.

Mr Mavuso noted that corruption was rampant at the Refugee Reception Centres.

He explained that the presentation figures were dominated by references to refugees and asylum-seekers from African countries, because South Africa – in relation to EU countries, had a provision of waiver of visa for 90 days. For that reason alone, Europeans were regarded as coming in South Africa legally, even if they were actually in the country for reasons of seeking asylum. There were about 22 cases of asylum applicants who came from Ukraine.

South Africa had decided to integrate refugees in local societies, so that there was no refugee camp in South Africa. If an asylum seeker or applicant was recognised as a refugee, he or she had the right to be issued with the refugee ID and refugee travel documents. A Refugee ID could allow the holder to have access to socio-economic rights and benefits. It was imperative to have a certain form of identification to use to access the socio-economic services. He explained that the mere fact of being a refugee could not be used to deprive an individual of his or her right to free movement using a travel document. The refugee regime made it clear that a refugee could not go back to his or her home country.

In 2004, the Supreme Court of Appeal ruled in favour of asylum-applicants who at that stage could not be authorised to work or study. Since then, asylum-seekers had been allowed to access the labour market, although this was currently being reviewed and the DHA was consulting with other stakeholders to see what could be done within three months of the asylum-seeker’s arrival. The DHA wanted to avoid a situation where all asylum seekers could be working, including undesirable asylum-seekers.

Mr Mavuso said that he was not in a position to answer the question of where refugees go when travelling. Somalis usually took flight to Kenya and could access their country using another passport. Although they were in theory required to hand in their passport upon application for asylum, asylum applicants were in fact not handing in their passports.

In relation to the issue of skills, Mr Mavuso stated that asylum-seekers had various skills. Many of these people would be abusing the asylum system to regularise their stay. The DHA was intending to produce a Green Paper on the International Migration Policy, which would address the issue of admitting those individuals with skills.

On the issue of marrying local women, Mr Mavuso stated that the DHA could not involve itself with love-related issues. If one partner in a relationships claimed to be in love with the other and wanted to get married, the DHA could not question them but would have to allow them to solemnise their marriage. One lady had used biometrics in order to avoid any future claims that she did not get married to foreign nationals. 

Mr Mavuso accepted the argument that some people simply wanted to travel and said that this was also illustrated by the number of people being admitted on the basis of a tourist visa, and who, before the three months on that had expired, would request the DHA to change the visa from a tourist to working visa. On this issue, the DHA remained firm to its decision that whoever entered the country on the basis of a tourist visa, and now had got a job must first return home and apply for a work permit from their home country.

Mr Mavuso noted the point about international embarrassment, and conceded that there were some fugitives who were in the country, but the Court had made rulings that some would not be deported: for example the Constitutional Court had ruled that an individual who might have committed murder in their home country could not be deported if there was a reason to believe that this person might be subject to death penalty, so that deportation would only take place with a prior assurance that the person would not be subject to capital punishment.

Mr Mavuso agreed that members of rebel groups were mainly between 19 and 35 years of age and might be seeking asylum in South Africa. This raised a serious concern. Rebels and terrorists were among people who were running away. The DHA was engaging with other security departments – especially the Department of State Security - to look into the shortcomings of the system. The Department of State Security should share some information with the DHA so that it could be able to filter good people from bad ones. When an application was rejected, it was assumed that the rejected applicant ought to leave South Africa, and if not, then the person would be arrested and deported. The issue of deportation was complex because in most cases, those threatened with deportation would take the DHA to court.

The DHA dealt with people in possession of fake document on daily basis. If they were caught, they were handed to law enforcement agencies, but the DHA was feeling frustrated because there was no tangible outcome, and there were many cases in litigation at the moment.

Mr Nesi sought clarity on what might happen on Mr Janusz Walus (convicted of killing SACP Leader, Chris Hani) if was released from prison.

Mr Figlan sought clarity on who paid the deportation costs. He was also concerned about people from Lesotho who were forming drug dealing gangs in his constituency. 

The Chairperson remarked that permanent residents had all rights except political rights, more notably the right to vote. There were also various bilateral agreements concluded with neighbouring countries. A number of interesting things came out of these bilateral agreements. There was discussion with Kenya and Lesotho respectively. Indeed, the question of deporting Mr Janusz Walus ought to be approached with caution. Normally, deportations of illegal migrants were conducted by working hand in hand with their embassies.

Immigration Amendment Bill [B-2016]: Deliberations
The Chairperson stated that section 30(1)(h) of the Immigration Amendment Act No 13 of 2011 had created many challenges as it had been interpreted by some to mean that foreigners that had overstayed on more than one occasion should be declared undesirable. The Committee had generally understood that it had always been the intention of the Act to allow for a foreigner to be declared undesirable, even upon one instance of overstaying. This was one of the issues that required clarity.

The intention to amend the section was communicated to the DHA. The Committee was not comfortable with how the paragraph was worded at the outset, and he commented that it was “not readable”. The term “illegal foreigner” was totally different from the term “overstaying” and could be dealt with differently. To avoid confusion, these two terms should be defined. A foreigner who overstayed without a valid reason could only be declared to be an illegal foreigner. Not every over-stayer could automatically be classified illegal without hearing them out.

Ms Daksha Kassan, Parliamentary Legal Advisor, stated that the original intention was that there should be an amendment to section 30(1)(h), but that after discussions with the DHA, it was agreed that section 32 should instead be amended, in order to provide more clearly that a foreigner who had overstayed, beyond the expiry date of his or her visa, could not qualify for a port of entry visa, a visa, admission in the Republic or a permanent residence permit during the prescribed period.

According to the DHA, section 30(1)(h) was intended to deal  with repeat offenders, whereas section 32 dealt with a first offender. Section 33 defined “illegal foreigners” on the basis of overstaying upon one instance, or more than one occasion. A foreigner could also be illegal simply because he or she had contravened one or more conditions of his or her stay. It was not clear to the DHA why the terms “overstaying” and “illegal foreigner” should be defined, and she said that there was a concern that the attempts to define could open a can of worms. A foreigner who might have overstayed through no fault of their own could explain reasons, and be exempted if those reasons were compelling. In that regard, section 8 did not apply, but section 32(1) was applicable. It was possible for a foreigner to regularise their stay, if good cause had been shown.

The Chairperson said that the intention to amend section 30(1)(h) was based on constitutional grounds, because foreigners’ basic rights to freedom of movement should not be restricted arbitrarily. According to the DHA, section 30 when read as a whole was constitutionally sound, because a  foreigner could have some legal recourse in terms of section 32(1).

Ms Kassan raised her concern that the term ”illegal foreigner” would lead to ambiguous interpretations.

The Chairperson stated that the main concern was the fact that a foreigner could be classed as an “illegal foreigner” simply by virtue of overstaying, because section 30(1)(h) listed overstaying as one of the reasons why a foreigner could be declared an illegal foreigner. Members were seeking to clear up the different interpretations. There was no recourse to appeal against such declaration or to request a review of such declaration.

An official from the DHA responded that there was in practice no declaration. If a foreigner overstayed beyond his or her period, they could automatically be classified as an illegal foreigner. Persons who overstayed could be picked up electronically. Once a person was picked up by the system, they would be asked to show a good cause why they had overstayed. If a person had overstayed for the second time, he or she was the a repeat offenders. First-time offenders could not be punished, if they had a good reason to overstay their time.

It was noted that thus the declaration of undesirable was a technical matter. Overstaying was not being declared on the basis of any adjudication on the issue, but simply on the basis of having stayed stayed beyond the expiry date. Because there was no physical declaration as such, there was nothing to review or appeal.

Mr Nesi opined that the discussion was based on technical problem. Such matters would have to be resolved by people with a deep understanding of the law. The duty of Members was to check whether the wording would not result in numerous interpretations. He requested the DHA legal drafters and Ms Kassan to sit down together and find a middle ground.

The Chairperson agreed, and suggested that after these discussions, the legal advisors should submit a note on the outcome of their discussions, and a new draft that incorporated the inputs, by 11 March at the latest.

The meeting was adjourned.