Legal entities and non-governmental organisations with an interest in the rights of asylum-seekers and refugees in South Africa made representations to the Committee as part of the public hearings on the Refugees Amendment Bill.
An immigration lawyer who provides legal advice on immigration and refugee law in South Africa, presented his views on the exclusion from refugee status of those who failed to apply for refugee status within five days of entering South Africa, on the cessation of refugee status, on vetting investigation, on the powers of the Department of Home Affairs (DHA) and the Standing Committee for Refugee Affairs (SCRA), on automatic rejections and on the right to work and study.
The Scalabrini Centre of Cape Town (SCCT), which offers development and welfare programmes to the migrant and local communities of Cape Town, focussed on the Green Paper process and the Bill’s significant shift from the principle of urban refugee protection, the historic and ongoing challenges with the implementation of the Refugees Act, and concerns regarding capacity for implementation.
The Somali Association of SA (SASA) was concerned with the definition of dependent, which was given a narrow definition, rendering members of the extended family unprotected. Five days to report to the Refugee Reception Office (RRO) would marginalise a high number of asylum-seekers and was thus unreasonable. The Bill did not take into consideration vulnerable groups, such as pregnant women and people with disabilities. It was adding a workload to the existing one, which the DHA had no capacity to deal with, and was ineffective in the promotion of self-reliance because it deprived asylum-seekers of the right to work and study, and sought to place them in the holding centres.
The International Network of Congolese Lawyers (INCL) suggested that the DHA should make sure that it issued dignified, secure and recognisable identity and travel documents; that it reviewed existing bilateral labour agreements; and that it introduced regional special work. The DHA should not tamper with the right to work and to study, which had been acquired in South Africa’s courts of law..
The Legal Resources Centre (LRC) submitted that the apartheid regime had rejected international standards, and the post-apartheid regime should strive to work within the international standards in order to do what was right for the people – citizens and non-citizens alike. It said that a refugee could not be returned if his/her life would be threatened. It urged the DHA to retain the definition of dependent as it was, because within new definition’s parameters, old people could not be assisted by their relatives, for example. If a refugee committed a crime in South Africa, he/she should be punished, but there was no way he or she should be deprived of his or her refugee status. Assessment of whether a person should be allowed to work or study would bring the refugee law into disrepute.
Members sought clarity on whether the five-day deadline to report to the RRO was practical, what international standards entailed, and on the use of polygraphs in the vetting process. They felt that taking new measures to regulate refugees was necessary in order to avoid reducing South Africa to a state of anarchy if it was flooded by illegal migrants and bogus asylum-seekers. The laws, however, ought to be in line with the Constitution.
The Acting Chairperson said the Committee would be hearing public comments on the Refugees Amendment Bill. He stressed that it was the duty of each and every South African, through Parliament, to regulate refugees effectively. Failure to do so might bring the country into the state of anarchy.
Presentation by Immigration Lawyer
Mr Martin J Bauwens, an immigration lawyer who provides legal advice on immigration and refugee law in South Africa, took the Committee through presentation. He commented on the exclusion from refugee status of those who failed to apply for refugee status within five days of entering South Africa, on the cessation of refugee status, on vetting investigation, on the powers of the Department of Home Affairs (DHA) and the Standing Committee for Refugee Affairs (SCRA), on automatic rejections and on the right to work and study.
On the application period of five days, he commented that the obligation to apply for refugee status within such a short period of time would appear unnecessarily harsh and procedurally unfair if the DHA did not have sufficient resources to adequately deal with the influx of applicants.
On the question of refugee status ceasing if a refugee returned to visit, he argued that this issue should be judged on the individual merits or circumstances. The re-availment ought to be voluntary, not constrained, with no automaticity. The power conferred on the Minister to withdraw the refugee status of a category of refugees was viewed as being inconsistent with the 1951 Refugee Convention. The mass revocation could not be supported, and the revocation should be individual process.
He also noted that the withdrawal of refugee status on the basis of committing a serious crime in South Africa or on the fraudulent use of a South African visa, permit or travel document, was also inconsistent with the 1951 Convention. Once a person’s refugee status had been determined, it should be maintained unless he/she came within the terms of one of the cessation clauses.
The Chairperson sought clarity on international standards and on how these standards were determined and on how they come about.
Presentation by Scalabrini Centre of Cape Town
Mr Corey Johnson, Advocacy Officer: Scalabrini Centre Cape Town (SCCT), which offers development and welfare programmes to the migrant and local communities of Cape Town, and Mr Abdikadir Mohamed, Director: Western Cape, Somali Association of South Africa (SASA), an community non-governmental organisation (NGO), took the Committee through the presentation. It focussed on the Green Paper process and the Bill’s significant shift from the principle of urban refugee protection; the historic and ongoing challenges with the implementation of the Refugees Act; and concerns regarding capacity for implementation.
Mr Johnson said that the SCCT was concerned that many of the proposed amendments to the Refugees Act represented a significant shift away from the urban refugee protection framework, as established by the Refugees Act. Most concerning was the move towards providing shelter and support to asylum seekers through the United Nations High Commission for Refugees (UNHCR) and friends and family, as opposed to asylum seekers supporting themselves. This proposal had not been fully elaborated on, despite its significant implications for the refugee protection system and society more generally.
In the SCCT’s view, the primary challenge of the refugee protection system since it had gone into force, had been one of implementation. South Africa's urban refugee protection system, championed for its progressive provisions, allowed for asylum seekers and refugees to lead meaningful lives and contribute to society and just as importantly did not rely heavily on the South African state for the provision of shelter and support.
SCCT was concerned that many of the Bill's proposed amendments added further administrative requirements for both the reception of asylum seekers, as well as during the adjudication process. This included a number of layers that did not relate to refugee protection, but would instead divert resources away from this goal. For example, the proposed amendment regarding the five-day requirement to apply for asylum, and the provisions for irregular entry, would add unnecessary determination processes to the system that did not relate to refugee protection, despite the great risk these posed to genuine refugees. Perhaps most important proposed amendment, and most difficult to implement, was the 'sustainability determination process,' which was envisioned to determine if an asylum seeker should be able to work or receive assistance from friends and family, or the UNHCR, pending final determination of their asylum claims.
Mr Mohamed said that SASA was concerned with the definition of dependent, which was given a narrow definition, rendering members of the extended family unprotected. If the father-in-law passed away, an individual could look after the children of the father-in-law. The definition of dependent referred to members of the immediate or nuclear family.
Five days to report to the Refugees Reception Office (RRO) would marginalise a high number of asylum-seekers and was thus unreasonable. The Bill did not take into consideration vulnerable groups such as pregnant women and people with disabilities. The Bill was adding a workload to the existing one, which the DHA had no capacity to deal with. For example, refugees and asylum-seekers were spending a day in queues without being assisted. Some refugees or asylum-seekers were holders of expired documents because it was difficult to access RROs. The Bill was not catering for asylum-seekers who were living inside the country, for example, Cape Town. Finally, he said that the Bill was ineffective in the promotion of self-reliance, because it deprived asylum-seekers of the right to work and study, and sought to place them in the holding centres.
The Chairperson said that South Africa sympathised with refugees and asylum-seekers, but it was the duty of the Committee to hear and respond to the voices of the people of South Africa.
Mr M Hoosen (DA) said that South African should indeed be heard, but all South African voices could not be heard. The majority of South Africans did not like foreigners and this ill-sentiment towards them gave rise to xenophobic attacks. It was also the duty of the Committee to ensure that all people were protected in terms of law. He sought clarity from Mr Bauwens on whether the five-day period to apply for asylum was compatible with international law.
A Member commented that no presenter had said that asylum-seekers were mistreated. It was necessary to note that the world was changing, and the law should change as well. He felt that five days was a reasonable time to report to the RROs. Members were not implying that asylum-seekers should stay in a refugee camp forever. They were full aware of what was happening in France’s Calais refugee camp and elsewhere. Refugee camps were not workable and feasible. South Africa was committed to welcoming refugees, but measure should be taken to ensure that genuine refugees were admitted in the country and that they were complying with the law. He sought clarity on what the international standards entailed.
Ms C Ndaba (ANC) sought clarity on the meaning of ‘international standards’ and ‘vetting investigation.’ Why had Mr Bauwens said that the use of a polygraph was inconsistent with international standards? Was he implying that it was right for the asylum-seekers to come into the country and lie, or misrepresent themselves?
Ms H Hlope (EFF) said that the EFF agreed with all points that had been raised by the presenters. The EFF was not supporting the Bill. She sought clarity from Mr Bauwens on how many days was viable for reporting to an RRO if an asylum-seeker entered the country illegally.
Ms D Raphuti (ANC) commented that those who visited South Africa were applauding it for upholding human rights. She also asked why Mr Bauwens was of the view that the use of a polygraph was inconsistent with international standards. In her view, the use of a polygraph was necessary because refugees or asylum-seekers were untrustworthy and a group of liars. Why should South Africa accommodate a group of liars? Was that not going to affect South Africa’s economy?
Ms N Mnisi (ANC) sought clarity from Mr Bauwens on whether the 1951 Geneva Convention should be revisited, since it was not assisting South Africa as a country. She said that refugee status was granted on the grounds of having a fear to return home, and so why should a refugee or asylum-seeker who went back to visit their countries still be called refugees? If they returned to visit, this would imply that they were not persecuted at home, and that their home countries were safe and welcoming.
Mr A Figlan (DA) sought clarity on the integrity test, and remarked that there was a lot of corruption taking place in the DHA. He asked whether the DHA had the capacity to ensure that asylum-seekers were registered if they had to report to it before five days elapsed. What were the consequences that an asylum-seeker could face if the five days elapsed without reporting to the DHA? Did the DHA take into consideration that asylum-seekers came into the country with nothing, and the first thing to do in those circumstances was to find basic necessities of life, like food and accommodation?
Adv Deon Erasmus, Chief Director: Legal Services, DHA responded that ‘vetting investigation’ was all about the staff of the SCRA and Refugees Appeal Board (RAB). The DHA might impose a vetting investigation on them and that included the use of a polygraph to determine the reliability of information gathered during the investigation. The use of a polygraph could not be used with asylum-seekers.
Mr Baumens responded that provision of five days to report to an RRO after entry into the country was problematic, and did not meet international standards. This approach would render many asylum-seekers to being excluded because, it was highly likely that asylum-seekers might not be able to comply with the five days rule. He recommended that the state ought to be more generous towards the admission of asylum-seekers.
On the question of the use of a polygraph, he responded that it was not meant to be used with asylum-seekers, but he was of the view that the use of polygraph on members of SCRA and RAB was illustrative that these administrative and jurisdictional bodies were not independent, as was envisaged in the Refugees Act. In order to function without any bias, these bodies should not be subject to the DHA’s disciplinary measures. On the question of revisiting the 1951 Geneva Convention, he responded that he was not in a position to respond on that question hence it should be dealt with in political forums. South Africa had ratified a number of international instruments and might withdraw from them if it felt that those instruments were not helping as it did with the Rome Statute establishing the International Criminal Court.
On the question of refugees returning to visit, he said that in most cases, refugees could return home, for instance, for a funeral or to seek a document that might be needed by the host countries. Under these circumstances, refugees could not be deprived their refugee status. In the event a refugee visited his or her country of origin, the cessation of his or her refugee status could not be automatic. Cases of this kind should rather be judged on their individual merits.
Mr Johnson commented that in his view, a five-day period was not enough for a person who first arrived in the country to report to the RRO. It was also impractical for the DHA to deal with the flow of applicants, because of its ineffectiveness. It was ill-staffed and ill-equipped. The period should be extended to three months. He cited the example of a Burundian asylum-seeker who had come to South Africa through Namibia. He came to Cape Town. Since there was no RRO in Cape Town, he had had to go to report in Durban. This had required him to have a certain amount of finance in order to get to Durban. First thing an asylum seeker did was to find a place to stay and work. This could not be done in five days. On the question of capacity, he said that Members were best positioned to know the capacity of DHA, and thus decide on whether they would increase the number of days or not.
Mr Jackie McKay, Deputy Director General: Immigration Services, DHA said that he could not see how the five days’ period was linked to the DHA capacity, and said that five days were enough to report to the RRO. All refugees were coming from the north. That was the reason why the RROs had been established in the northern part of the country. This was to facilitate asylum seekers’ access to the RROs. They should therefore go straight to an RRO. He said that many of them used the ports of entry at the Zimbabwean and Mozambique border with South Africa. A few others could use other ports of entry. On the DHA’s capacity to consider applications within a reasonable time, he said that the DHA was faced with the challenge of a backlog in terms of the adjudication of applications for asylum or appeals thereof, but not for documenting new asylum-seekers.
Presentation by International Network of Congolese Lawyers (INCL)
Mr Jean Claude Kazaku, Lawyer: INCL, submitted that in parliamentary procedure, a motion was a proposal to do something. The wording of such a proposal could be changed, using the motion to amend. Amendments could remove words, add words, or change words in motions. All main motions and some secondary motions could be amended. An amendment could be amended. However, an amendment to an amendment of an amendment was not allowed.
Mr Kazaku recommended that the DHA should make sure that it issued dignified, secure and recognisable documents, that is, identity and travel documents; that it reviewed existing bilateral labour agreements; and that it introduced regional special work. The DHA should not tamper with the rights to work and to study which had been acquired in South Africa’s courts of law. The issue of integration should be accompanied by education of South Africa’s heritage, language, and labour for development and national priorities. Refugees and asylum-seekers should be educated about their civic rights. There was also a need to capacitate the DHA in terms of its workforce and expertise.
Presentation by Legal Resources Centre (LRC)
Mr William Kerfort, Attorney: LRC said that the apartheid regime had rejected international standards, and the post-apartheid regime should strive to work with the international standards in order to do what was right for the people – citizens and non-citizens alike. He said that a refugee could not be returned if his or her life would be threatened. In line with the principle of non-refoulement, a refugee could not be given a time to report to local authorities. It would be inconsistent with the principle of non-refoulement if a person was returned on the ground that he had not reported to the RRO. The Supreme Court of Appeal (SCA), in the case of Bula, had stated that a person should report within 14 days.
With regard to definitions, Mr Kerfort urged the DHA to retain the definition of ‘dependent,’ because with the new definitions old people would not be assisted by their relatives.
With regard to the cessation of refugee status, he said that when a refugee committed a crime in South Africa, he should be punished, but there was no way he or she could be deprived of his or her refugee status.
On the right to work and study, an assessment of whether a person should work or study would bring the refugee law into disrepute. It was not clear how this would work in practice.
On the vetting investigation, Mr Kerfort said that the use of polygraph was wrong, simply because it was very dangerous.
Mr Hoosen thanked the LRC for its detailed submission and, referring to the LRC’s experiences in dealing with asylum-seekers who accessed the RRO, sought clarity on whether five days was a viable period. He appreciated the LRC’s information regarding exclusion from refugee status, and remarked that they had not talked about the constitutionality of exclusion.
Dr P Maesela (ANC) said that he understood the question of dependency, and was concerned with those children who came with their relatives (not their parents) and who did not know how to express themselves. He said that South Africa had a constitutional court that could review Acts of Parliament to ascertain whether they were unconstitutional. He said that laws might be good, might not suit everyone or might not be implemented well. However, they were enforceable by the courts. If someone came to the Republic and stated that he/she needed asylum, they would be helped and protected. Some people would be sent back to danger if they did not state their cases in a convincing manner. No one would be sent back if they stated their case. Should an asylum-seeker not report within five days, he or she would become illegal foreigner who ought to be arrested and deported on the basis of illegality. The LRC was saying that an asylum-seeker needed 14 days to report: For what? What would an asylum-seeker be doing within those 14 days?
Ms T Kenye (ANC) sought clarity on why refugees could be allowed to visit their homes, based on the argument made by Mr Kazaku that refugees were insecure because their IDs were not dignified and recognisable. What had he meant when he stated that the DHA ought to be capacitated when he referred to studying culture and language,
Ms Hlope said that she had hoped to hear from the Congolese about controversial issues, like racism, xenophobia and detention, but it seemed like they had changed their tune. Why? She said that international standards ought to be adhered to. She asked the DHA why its clients (refugees), queuing at its offices, were being harassed or chased away by security officers.
Mr MacKay said the DHA had tabled the amendment to the Refugees Act in order to deal with the challenges that it was facing. Challenges included protracted appeals, delays in the reviews and corruption issues. The DHA believed that the amendment would help it to respond to those challenges. Both the SCRA and RAB were composed of a group of staff led by the chairperson, and could deal with a case before them as a committee. It did not matter whether the committee was composed of ten or 100 members, they could deal with one case as a committee. This approach had no efficacy. In order to expedite work, the amendment would state that one member of the Committee could deal with a case to determine its merits. The amendment would introduce efficacy to the adjudication of applications for asylum.
The Refugees Act allowed the RAB officials to be appointed for five years, but this was not helping if account was given to the increase in numbers of asylum-seekers. The amendment would give to the DHA the possibility of extending the term of five years and to employ more staff for those two entities.
Mr McKay acknowledged that the DHA was faced with a serious problem of corruption. The integrity testing had been introduced as a mechanism to deal with corruption adequately. With regard to the right to work and study, the Watchenuka case was decided in 2003. It was clear that the DHA should determine individual circumstances to determine whether such an individual could work and study, and it was not intended to give a blanket authorisation. All asylum-seekers –some of whom were economic migrants who could not qualify for refugee status – could not be allowed to work and study. The right to work and study could not be automatic. It should be subject to assessment.
With regard to the five-day period to report, he said that there were people who had been arrested after staying in the country for 12 months or more and once they had arrived at the Lindela Holding Centre, they had expressed their intention to seek asylum. South Africa was saying that people should express their intention to apply for asylum within five days of their arrival in the country. The Green Paper dealt with international migration, and was not restricted to refugees. It looked at migration in a comprehensive manner. It would take long to be able to table it, hence it had to accommodate all the views of the public.
The serious crimes referred to in the Bill which, if committed, could result in the refugee status being withdrawn, were crimes committed in South Africa without the option of a fine. With regard to interpreters, Mr McKay pointed out that interpreters were also used as a channel of corruption, as they could be bribed by asylum-seekers, inventing their own stories to assist him or her.
Mr Bauwens said that the refugee issues that South Africa was confronted with were similar to those facing other countries. There was a substantial increase in the number of refugees around the world, and such an increase was of concern. The DHA should therefore find a way of managing refugees instead of working to curb the flow of asylum-seekers. The flow could not be stopped. They should be allowed to enter the country and be given an opportunity to work and study. The DHA should adopt a holistic approach with regard to the immigration policy and refugee policy, so as to prevent the infringement of refugee rights. The immigration policy should be relaxed to allow African immigrants to have access to South Africa’s labour market. The immigration policy should be reconciled with the refugee policy by way of relaxing restrictions imposed to employment, in order to retain low-skilled people.
Mr Johnson said that there was a need for a holistic approach to consider the dynamics of migration in order to respond to it in fair manner. The move to extend the period of five years to ten years for applications for certification was not fair.
He said that the integrity test should reduce corruption. On the right to study and work, the key in the Watchuneka case was a paragraph that stated that asylum-seekers should not be deprived the right to work, whereby they would be compelled to resort to crime, or to begging or foraging. He sought clarity on whether the new approach would live up to the Watchenuka decision.
Mr Kazaku thanked the DHA for its efforts to cater for refugees and asylum, and commented that its work should be consistent with the law, including court decisions or the Public Protector’s recommendations.
Mr Mohamed thanked Members for the hospitality extended to refugees. He said that the Refugee Status Determination Officers (RSDOs) had little information about countries of origin. The RSDOs were not knowledgeable, and could state that a Somali was a Zimbabwean and reject his/her application. This was worrying, as it was happening often. Interpreters were not a source of corruption, and a refusal to make use of interpreters would not reduce corruption. Corruption could be reduced if the DHA employed honest staff with integrity. It should be noted that there were asylum-seekers coming from non-English speaking countries, who needed interpreters to assist them to state their cases.
Mr Kerfort said that the New York Declaration for refugees and migrants had been endorsed by the Minister, and should be complied with. In this light, if an asylum-seeker committed a crime and was found guilty, he or she should be punished and not be deprived of refugee status. The qualifications of the RSDOs should be defined, because those with only Matric, and with no legal knowledge, were being employed. This had implications for the adjudication of asylum-seekers’ applications, which were rejected without a clear reason. He also commented that the DHA officials were out of reach, which was a major problem. There was no interaction between refugees and officials, or effective engagements between the NGO and officials. Service was insufficient to such an extent, that it would be difficult even to correct a name that had been captured wrongly on an asylum permit.
The Chairperson said that interaction between stakeholders and the DHA was essential.
The meeting was adjourned.