Refugees Amendment Bill [B12-2016]: public hearings

Meeting report

The Chairperson noted there had been discussion on the Border Management Authority Bill and there was some sort of consensus between the DHA and National Treasury. He had a letter from the DHA talking about such consensus and he was waiting for a letter from National Treasury to confirm that the content was a true reflection of what they had agreed on. It therefore appeared that there were some developments. Today the Committee would continue to hear submissions on the Refugees Amendment Bill.

Centre for Constitutional Rights (CFRC) submission 
Ms Christine Botha, Legal Officer: CFRC, noted that CFCR welcomed attempts made by the DHA to combat crime and corruption. However certain key provisions were of concern, including disqualification for and cessation of refugee status, lack of procedural safeguards regarding oversight of the RSDO’s discretionary power, functions of the SCRA, application for asylum-seeker visa, and employment assessment test.

Ms Botha pointed out that the constitutional rights which might be adversely affected by the Bill included the right to human dignity. In the case of Minister of Home Affairs v Watchenuka 2004 (4) SA 326 (SCA), she noted that the right to human dignity was not only limited to citizens; hence human dignity had no nationality. It was inherent to citizens and non-citizens alike. The Bill would affect the right to fair administrative action in section 33 of the Constitution, which required a decision to be lawful, reasonable and procedurally fair.

On exclusion from refugee status, the CFCR submitted that clause 2 ought to adhere to Article 1F of the 1951 Convention Relating to the Status of Refugees. Article 1(F) made reference to individuals who were guilty of acts of war crimes, crimes against humanity, serious non-political crimes outside of country, and acts contrary to United Nations principles. The guidance on interpretation of Article 1F was contained in the UNHRC Guidelines on Application of the Exclusion Clauses (4 Sept 2003). The Bill’s reasons for exclusion from refugees status were, first, much wider than the narrow list in terms of Article 1F and, secondly, these extended reasons would be exercised or determined by one individual, the RSDO, who substituted the Refugee Status Determination Committee (RSDC) established by section 4(1) inserted by the Refugees Amendment Act 12 of 2011. The CFRC therefore submitted that section 4(1)(f) to (i) should not be included in the Bill because it regarded grounds/reasons additional to those in Article 1F of the 1951 Convention. On top of that, exclusions from refugee status could be influenced by the subjectivity of RSDO. This also linked up to lack of procedural safeguards in the exercise of discretionary power of the RSDO. Citing an example, the CFRC said that discretionary power of officer can be abused in terms of section 4(1)(f) - (i) because section 4(1)(i) stated that if the RSDO has “reason to believe” that the asylum-seeker “has failed to make an application for asylum within five days of entry into country and in absence of compelling reasons which include hospitalisation, institutionalism or any other compelling reason of similar nature”, the RSDO would disqualify an asylum-seeker from refugee status. The CFRC found this approach to be outside the exhaustive list of Article 1F. It was also concerned that there was no information in the Bill on how the officer would decide what a compelling reason was or how he would apply his mind to it. Subjectivity of RSDO decisions could be worsened by lack of independent oversight of this decision making. The Bill failed to create an obligation imposed on the SCRA to monitor the RSDO exercise of discretionary power.

In clause 18, the manner in which “assessment test” could be conducted was unclear. There was no clarification in the Bill on what would be considered “sufficient means” to sustain an asylum-seeker and his dependent for “at least 4 months.” The pertinent questions were: What could then happen after lapse of four months? Should there be reassessment of ability or what? With regard to provision of shelters and basic necessities, there no indication how it would be determined or how long shelter or basic necessities would be provided. What was needed was clear information on how the above determinations would be made.

Discussion
Mr D Gumede (ANC) welcomed the submission. However, he could not fully engage with the submission and therefore respond to issues raised without legal advice on legal technicalities. Members could not argue without legal advice. Of concern was whether there were some issues that might end up in the court of law so as to resolve constitutional issues. The term ‘refugee’ might have been defined widely or understood in a different context. Clarity was sought on the meaning of the term ‘refugee’. Did not the term refer to those who left their home country because of persecution? If so, how could this group be differentiated from economic migrants? On CFRC’s point that one RSDO could not assess an application for asylum, he sought clarity on what was the proposal of the CFRC and why.

Ms T Mnisi (ANC) welcomed the submission and agreed with Mr Gumede that the legal advice was definitely needed to respond to certain issues. She sought clarity on what would constitute an institutional bias.

Mr A Figlan (DA) said that the submission raised concern about procedural safeguards regarding oversight of RSDO’s discretionary power and thus he asked whether an oversight should always be independent.

The Chairperson remarked that in South Africa if anyone was aggrieved of any matter he or she could resort to approaching the court. The same applied to refugees and asylum-seekers. They could take government to court and even up to the Constitutional Court. Civil society organisations should be wary of fragmenting the institution all over the place as this would create uncertainties. The issue of institutional bias as DHA’s bias could not rise in this instance. Why could one officer who was well-trained not take a decision? Are you saying that South Africa should copy the Refugee Convention as it is or do you recognise that a nation-state is sovereign, and experiences its own political and economic circumstances? South Africa was a sovereign country and should ensure that its citizens were protected. There was no point in allowing all tourists – without excluding from them those bad tourists who would endanger lives. When these lives were endangered, South Africa has to take the responsibility, otherwise citizens had to pay the price. That was why the DHA was a security department and ought to take measures that were conscious of security.

Ms Botha responded that note was taken of the fact that the Committee would need legal advice to respond to the issues she had raised and of the fact that South Africa was a sovereignty in terms of international law. However, the state was bound by a treaty that it acceded to unless it had made certain reservations. There was no reservation made on the 1951 Geneva Convention. In addition, customary international law was a binding law in terms of the Constitution. Section 39 of the Constitution stipulated that international law ought to be considered in the interpretation of law. On the question of unfettered discretion, Ms Botha submitted that even courts had minor discretion because they are bound by higher court judgements. Courts adhered to the principle of checks and balances. The Committee should be wary of the fact that refugees and asylum-seekers are the most vulnerable people, when regulating refugee matters. Those asylum-seekers who were excluded from refugee status on account of reasons listed under clause 2 of the Bill should not be regarded as prohibited persons. The clause must conform to international refugee law. Although criminals (i.e. fugitives) should not simply qualify for refugee status but each case ought to be determined on its own merits. When she made a reference to an institutional bias, she was implying that a departmental policy was influenced by the subjectivity of policy makers. Accordingly, an oversight should be conducted by an independent body.

The Chairperson sought clarity on whether an elaboration on an asylum-seeker’s assessment for employment should be contained in the principal Act or in the regulations to it.

Ms Botha responded that she would be happy if the assessment was included in the principal Act. It did matter less whether they were reflected in the principal Act or regulations.

Amnesty International South Africa (AISA) submission
Ms Sicel’Mpilo Shange-Buthane, AISA Executive Director, said at the global level, Amnesty International had more than 7 millions members, supporters and activists who advocated for the protection and realisation of human rights. Many of them were migrants, refugees and asylum-seekers; some of whom were in South Africa. The comments submitted to the Committee were made after consulting refugee communities. Submissions were made on the Bill and the Green Paper. Her main concern was about the relationship between the Bill and the Green Paper. The DHA was, at the time, undertaking a review of the country’s migration policy under the Green Paper and has called for comments from interested stakeholders to make inputs into the proposed International Migration Policy with the closing date having been the 30 September 2016. AISA had submitted its inputs. As was understood, the International Migration Policy was meant to provide guidelines on which migrant and refugee protection ought to be based. It was AISA’s belief that the Bill should be put on hold pending the finalisation of the proposed International Migration Policy, which would provide clear direction on how the Refugees Act should be holistically amended. It could not make sense to amend the Refugees Act which would also be amended by the new position of the DHA elaborated on in the Green Paper under review. How would the amendments proposed by the Bill and by the Green Paper be aligned?

On the definition of ‘dependent’, AISA said the definition was defined narrowly and therefore it precluded children above the age of majority, those children who were under guardianship and whose parents had passed away, but were in the care of their relative. AISA was aware of the consensus on human trafficking; which involved other departments like Social Development. Therefore, the Department of Social Development could assist in defining 'dependant’. AISA recommended that the definition be defined widely to include the informal care-giving relationships that often happen in some cultures.

On excluding an asylum-seeker from refugee status on the basis of commission of crime in South Africa was in violation of the principles of international refugee law. AISA argued that an asylum-seeker who committed a crime in the Republic should be punished in accordance with the law and the precautionary principle of innocent until proven guilty should apply to those who were suspects. AISA was not condoning criminality; rather it was stating that criminal law should apply and that each case be determined on its own merits.

On the five-day period to report to the authority, AISA submitted that the period was unreasonable given that the length of stay of asylum-seekers in a host country was often unknown depending on the circumstances surrounding the individual’s grounds for applying for refugee status. In light of this, the term asylum seeker permit should be retained and not replaced with asylum-seeker visa as proposed in the Bill. Yet, the original time period to report to the nearest RRO should be retained as per the Refugees Act of 1998. Failure to do so would prejudice the asylum-seeker. On exclusion of an asylum-seeker from refugee status on the commission of crime in South Africa, AISA submitted that such an asylum-seeker should be prosecuted in accordance of law as if he/she was a South African. Refusing such person asylum would result in a violation of the non-refoulement principle.

On the refusal of granting refugee status on account of being fugitive, AISA said that a distinction should be made between those who were fleeing fair and unfair criminal justice systems. Account should be given to those fugitives of unjust, repressive and draconian laws. For example, those fugitives who would be subject to death penalty if convicted or those who are criminally condemned on account of LGBTIQ reasons.

On the cessation clause in terms of section 5(f) and (g) of the Refugees Act as amended, AISA submitted that the decision to withdraw a refugee status should be taken after an asylum-seeker or a refugee had been given opportunity to exhaust all legal recourse available.

On the asylum-seekers’ right to work, AISA submitted that asylum-seekers as per Watchenuka case should be allowed to work. Sections 22(6)-(8) of the Refugees Act as amended infringed and restricted the right of asylum-seekers to work.

In AISA’s view, there was no need to amend the Refugees Act because the refugee crisis lay at the heart of implementation of the Act. The DHA should therefore focus on the realisation of adequate and comprehensive protection of asylum-seekers and refugees through establishment of an adequately resourced DHA, with efficiently functioning systems, qualified personnel and a well-resourced and adequately constituted Refugee Appeal Board (or Refugee Appeal Authority) and SCRA.

Discussion
Mr Gumede thanked Amnesty International for its contribution to South African freedom and democracy. He remarked that after democracy, South Africa allowed refugees to come into South Africa and the Committee was solely saying that the borders were porous and as a government, it had a duty to make people understand that SA would open doors to genuine refugees. It could not be understood that refugees should be given special treatment insofar as administrative services were concerned because the same administrative hurdles that refugees were experiencing were similar to that citizens were experiencing. There was a tendency of an individual who came into the country, if they were not employed within six months, to seek asylum. He sought clarity from Amnesty International on how the state should deal with such a person. There was a duty on the state to manage and control non-citizens and central to that management and control was adoption of a piece of legislation that would minimise or respond to these types of problems.

Mr Mnisi welcomed the submission and sought clarity on the definition of ‘dependent’ and its unintended consequences that might be flowing from other laws. He sought clarity on whether these laws were consulted for expansion of the definition.

The Chairperson remarked that civil society organisations (CSOs) were ignoring the impact that non-citizens had on employment as well as South Africa’s economy. There was a need to ensure that non-citizens seeking asylum reported to the RROs within the specified time, given that there were thousands of them, who were between the border and the RROs. These were thousands of undocumented people who were roaming the streets, who were in shopping mall parking areas, and who were on the farms. They spent years in South Africa without reporting to authorities. They were impacting on the economy of the country. They were using national resources such as water and clinics. The legal demand to report within a specified period empowered certain authorities to deal with them. There should be a system of tracing these (undocumented) people and to know how many people were in South Africa. South Africa could not be in the situation of not knowing those non-citizens who were within its boundaries. While CSOs were fighting for rights that could be accorded to these categories of people, they should also consider the consequences that would follow. The Committee did not want to hear those stories it was hearing from Europe. Stories about non-citizens raping women who were celebrating New Year or stories about trucks being driven into a marketplace with intent to kill people.

In her response, Ms Shange-Buthane stated that an argument of porous border was based on perception. She noted that refugees and asylum-seekers who were admitted in South Africa would have to compete with South Africans in the economic sphere for their survival. The Committee should be mindful of social vulnerabilities of refugees whose well-being would depend on the Bill that they were discussing. This category of people needed to subsist as others. Advocating for their plight could not be interpreted as disregarding neither the sovereignty of South Africa nor its social and economic experiences. There were social issues affecting South Africans but these issues could not be invoked to deviate from obligations flowing from the 1951 Convention. AISA was aware of problems of human trafficking and that children were victims of human trafficking but this could not be used to disregard other societies’ traditions and customs. South Africa had a higher number of undocumented migrants but this problem could not be responded to by taking measures that would affect the rights of prospective bona fide asylum-seekers. The issues of legality were of administrative nature and not a policy nature.

Rwandan Refugee Community Association (RRCA) submission
Mr Neels Coertse, Attorney, point out the relevancies of the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and 1967 Protocol Relating to the Status of Refugees. He noted that the proposed amendments should not distance themselves from any of the practical guidance contained in the Handbook.

Mr Coertse noted that the requirement for an asylum-seeker to apply for asylum within five days upon entry in the Republic was unreasonable, especially for those who entered the country during a weekend or on a holiday in a traumatic situation in a foreign land without information. He suggested that the duration should exclude weekends and public holidays and be extended to a minimum of 21 working days.

Mr Coertze noted that certain terms such as “re-avail yourself” and “re-establish yourself” were unclear and sought clarity on what could be the criteria to ascertain when and if a person has re-availed, re-established, or such person could no longer continue to refuse to avail him- or herself of the protection afforded by the host country. On the question of disqualification for refugee status on the basis of criminal acts, he noted that criminal acts were adjudicated in a court of law and after credible evidence were produced, such person was found guilty of the crime. This duty of pronouncing guilty and innocence was vested in the court of law and could not be vested in an official sitting in an office acting as for instance a RSDO. Extension of reasons to disqualify an asylum-seeker for refugee status was viewed as introducing more punishments to their already traumatised state in life. The introduction would have effect of depriving of the notion of asylum of its humanitarian character as was enshrined in the Handbook. Accordingly, the suggested amendment was discriminatory in nature and contrary to the Constitution.

Mr Coertze noted that the Act 130 of 1998 was amended twice: in 2008 and 2011. However, these two amendments were not in force. Act 130 of 1998 remained in force and was used to regulate the day to day operation of refugee matters. With the third amendment, the DHA was seeking to introduce new ideas and to re-introduce “repealed ideas.” In order to do so, it had to repeal the previous two amendments that never become operative and then scramble back to re-introduce certain repealed ideas. The question arose whether the third amendment would be operative. Although there was the refugee management crisis, the problem was not the asylum system. The RRCA emphatically insisted that new asylum system would not actually improve the workflow of managing refugees and asylum-seekers. In supporting that argument, RRCA submitted that it was not a system that got people working. It was not a system that stopped people from being corrupt. It was not a system that improved service delivery. It was not a system that struck at the heart of a work ethic. It was not a system that improved integrity. It was not a system that tidied up DHA Head Office filing system. It was not a system that cleaned toilets. It was not a system that stopped officials from having breakfast at 08h30 in the morning. It was often heard that people lashed out against parliament stating that it was a farce; that it was a circus; and that the parliamentary system was outdated and not working. It was been reiterated that the South African legal system was corrupt and not working. And then people would start compiling lists of how all three spheres of government were.

In light of the above, he submitted by stressing the point that it was not the refugee system that was lacking; rather, it was the people implementing asylum law. Inadequacy and ineffectiveness could be traced to the workforce comprising people who were answering telephones, who were doing the filing of the documents; who were guarding the gates at Refugee Reception Offices (RRO); and who were sitting behind their desks and interviewing people. It was people who paid the bribes and it was people who accepted bribes. It was officials who were not attending to their clients. For example, Mrs Rosette Niyongere, a Rwandan – who was referred to in her section 22 temporary asylum-seeker permit as a Congolese – applied for asylum in 1999. After 18 years, she was still operating under that section 22 permit, hence adjudication of her case was still pending. This surely had nothing to do with the Refugees Act (the existing system). It had something to do with people administering and applying it. For that reason, there was no need to tamper with the Refugees Act. The Act was fine and, in the RRCA’s view, seemed to be very progressive and drafted to reflect the essence of both the 1951 Convention and its 1967 Protocol.
 
Mr Coertze stated that Rwandan refugees that he represented had horror stories to tell about the treatment meted out to them when they go to the RROs. There were stories of corruption and bribery; stories about unanswered calls and emails; stories about their files that could not be found because those files were claimed to be lost; stories about waiting years and years for the matters to be finalised. These matters included applications either for asylum or for certification to be recognised as a permanent refugee.

Mr Coertze concluded by stating that the DHA should rather focus on improving its services through training its RRO’s officials, instead of spending money in on amending the Refugees Act. In the conclusion, he argued that asylum-seekers’ rights to work and to education – which was recognised by the Supreme Court of Appeal to be essential in their lives – should be left undisturbed. The DHA should take cognisance of the vulnerabilities of asylum-seekers. Those were people who arrived in South Africa without their families that were, in many instances, exterminated by forces they had no control over. Those were people who had the trauma of travelling down various countries to South Africa under extreme circumstances just to arrive in South Africa to be confronted with the uncalled for and unexpected repeal of their rights. There was a need to differentiate between asylum-seekers and economic migrants simply because economic migrants were falling under the immigration framework and not refugee framework.

Discussion
The Chairperson sought clarity on whether Mr Coertse was implying that the Refugees Act was fine and should not be amended at all, whether he was implying that the 2016 Bill should not be retrospective and whether Mr Coertse was wondering why the 2008 and 2011 Amendment Bills were not in force.

Mr Gumede remarked that there were issues submitted by Mr Coertse which he agreed with and a few that he disagreed with. For example, improving human resources capacity should be left to administrators to consider because it was not a policy matter. On the question of the inoperative amendments, he noted that there was no doubt that the 2016 Bill was needed to improve them. On the question of employment, he stated that he was not against employment of both asylum-seekers and economic migrants for making a living. However, the legal distinction between the two categories of non-citizens was essential. On the definition of the concept of traditional marriage, he agreed that the concept presented difficulties in terms of joining family members. He proceeded to suggest that the Home Affairs should engage with other stakeholders (in particular, the National House of Traditional Leaders) so as to inform the Committee about what traditional marriage should entail.

Mr Gumede agreed with the statement that some leaders of the country had been refugees. However, unlike refugees who are allowed to stay in South African communities, South African refugees had stayed in refugee camps; they were regulated by asylum laws of the host country; they adhered to those asylum regulations; and, on top of this, they did not enjoy the same rights enjoyed by citizens. He took the opportunity to remind all non-citizens that they had a duty to respect the laws of South Africa. In many instances, he had problems only with those refugees who ran their spaza shops without adhering to the laws of the country or those who had no willingness to regularise their stay.

The Chairperson asked Mr Coertse to answer the following question: How would you treat a person who come from, for instance, the DRC and who arrived in the Republic either with a child or an old person and claimed to be responsible for them, but had nothing to prove their relationship. In addition, the individual seeking asylum had no documents to identify him- or herself and their dependants. Having regard to the increasing problem of human trafficking, how would Mr Coertse deal with the situation?

Mr Coerste responded that although the question of human trafficking was sensitive, but it could not be said that asylum-seekers were trafficking humans. An argument holding that asylum-seekers could engage themselves in human trafficking was out of touch with the reality of extreme conditions asylum-seekers lived in. Was it possible – for a bogus asylum-seeker to spend days (which could turn into weeks) sleeping on the veranda of the RRO with children that were depending on him or her to survive and who had barely nothing to feed them – to have human-trafficked those children? Could a needy asylum-seeker accept responsibility to look after a child or/and an old person with whom he/she had no relation? These were questions that the Committee should ask itself before it could conclude that asylum-seekers could be engaged in human trafficking. A needy asylum-seeker could not claim to be related to a child or an old person for the purpose of the human trafficking. On the question of documents, he responded that it could not be expected for those people who flee for their life as their parents and their siblings were killed before their very eyes to bring documents and, due to imminent threat, fled without their country of birth with just the clothes on their body without money or other provisions to keep them alive in their desperate journey to the country of asylum.

On the question of amending the Refugees Act, Mr Coertse was of the view that the proposal to amend the Refugees Act was not given adequate thought. The DHA tabled two amendments bills before Parliament and these were approved by it. However, they remain inoperative for unknown reasons. There was always room of improvement. The Refugees Act could be adjusted. The question was why should the DHA focus on adjusting the Refugees Act instead of focussing on redressing the backlog through improving its human resources capacity as well as its infrastructure?

Mr Coertse reiterated that non-citizens were regulated by two pieces of legislation: Immigration Act and Refugees Act. Economic migrants were regulated by immigration law whereas asylum-seekers fall under the refugee regime. Economic migrants could not be used as ground to trump refugee rights. He reiterated that the concept of traditional marriage was difficult to define and that he brought the issue before Parliament to be considered. Attached to the notion of marriage was children born out of marriage or adoption thereof. Adoption was problematic within the refugee sphere. Parliament should consider how refugees should adopt those children to whom they were related.

The Chairperson remarked that there were indeed those who come with and without documents. You would find that those who come with documents also came with their possessions because they did prepare themselves to flee the country. This was in situations where they had problems with the state but the problems were not immediate. There were those where the danger of losing their lives was imminent and they had to flee without a second thought. This latter category of asylum-seekers did not plan to flee. Nonetheless, civil society organisations should bear in mind that, although they were determined to fight for the rights of refugees, the asylum system was being abused by those bogus asylum-seekers and by those who were claiming that they were related to individuals who were formally recognised as refugees. The Chairperson found it difficult to understand how an asylum-seeker or a refugee child could be adopted by a refugee or an asylum-seeker. On the question of human trafficking, he was convinced that some refugees and asylum-seekers were going back and forth to their home countries. The question arose how the DHA would know that a refugee did not go back to come along with the child of a surviving relative. It was good to fight for the rights of the people but certain practical gaps could not be ignored.

Ms Mnisi sought clarity on why refugees could flee Rwanda to South Africa but did not seek asylum in the neighbouring countries? Why refugees in South Africa were coming from countries as far afield as Egypt and Pakistan.

Mr Coertse responded that this was a difficult question to answer. Only refugees could provide the right answer. Drawing on Rwandan stories, he would try his best to answer the question. Often refugees are persecuted in their home countries. Some of refugees, due to political reasons, escaped assassination organised and perpetrated by their own governments. They were seriously wounded and flee the country; they were pursued in their host countries and they were returned home to face their persecutor again. They again escaped death narrowly and fled again. Due to the fact that Rwandan refugees were hunted down by their own government; they wanted to go to a country as far afield as possible when they ran away. It was commonly known that President Kagame was killing Rwandan refugees in host countries. President Kagame was quoted as saying that he regretted not having killed enough people fleeing from him. The question of killing Rwandan refugees could be attested to by the fact that Col Patrick Karegeya, a Rwandan refugee, was assassinated in South Africa. Another notable example was several attempts to kill Gen Kayumba Nyamwasa, a Rwandan refugee, here in South Africa. The pursuing of refugees to kill them was a compelling reason why refugees would do everything in their power and seek asylum in the countries that were far afield from their home countries.

Lawyers for Human Rights (LHR) submission

Ms Sharon Ekambaram, LHR Refugee and Migrant Rights Programme Manager, noted that there were at least 30 000 people per day worldwide that were forced to flee and that the world had to share the refugee burden. People were fleeing conflict, violence and persecution. However, the world had witnessed President Trump’s reaction to refugees and migrants irrespective of the fact that the United States’ rapid economic growth had depended heavily on the contribution of migrants and refugees.

Ms Ekambaram called for scrapping of the Bill and for focusing on the Green Paper on the International Migration Policy, released in June 2016, whose public comments were due on 30 September 2016. The Green Paper would make sweeping changes to the refugee system, including detention centres at border “processing centres”; removal of any ability of refugees to apply for permanent residence; and removal of the right to work for asylum seekers. Why should the DHA introduce new legislation before the White Paper? Although the asylum system was in crisis, the policy change was not a solution. She pointed out that the RAB was non-functional; the SCRA was desperately under-staffed and under-resourced; the RROs had been closed (even in violation of court orders) and corruption remained a principal barrier to South Africa fulfilling its obligations under international law. Had there been a costing of the Bill especially against the backdrop of drastic budget cuts for 2016/17? There was a serious issue of costs to take into account.

Ms Ekambaram submitted that the provisions of the Bill which dealt with immediate capacity problems, particularly the massive backlog of approximately 200 000 appeals before the RAB did not need a policy change to be addressed. This number was given by the Deputy Minister of Home Affairs, Fatima Chohan, during a submission at the Conference of the African Chapter of the International Association of Refugee Law Judges co-hosted by LHR at the University of Pretoria on 27 October 2016. This would include the changes contemplated in section 8C(2) of the principal Act permitting appeals to be heard by one member as determined by the Chairperson of the Board, and continued efforts to address corruption.

Ms Ekambaram stated that the rejection of applications for asylum was constitutionally problematic. The rate of rejection was 96%. The figure had been used by the DHA to demonstrate that economic migrants were abusing the asylum process. This had been called into question by leading research institutions in South Africa, including research done by the African Centre for Migration and Society (ACMS) at the University of the Witwatersrand. In a 2012 Report, ACMS found that the poor quality of the refugee status determination proceedings was a violation of the constitutional right to just administrative action. In another ACMS report in the same year, hundreds of RSDO decisions were analysed and specific problems relating to the determination procedure were found to violate both domestic constitutional law regarding just administrative action and good decision-making as well as international standards for refugee status determination. The fact was that many asylum-seekers were rejected on unjustified grounds.

Ms Ekambaram submitted that the state (i.e. DHA) ought to stop the re-traumatisation of asylum seekers through poor service and abusive treatment at the RROs. The DHA ought to remember the right to dignity and the role of the state in protecting the most vulnerable in society. Crucial to note was the fact that South Africans had been refugees in exile and were helped by others in the liberation struggle, now it was South Africa’s time to help those seeking asylum in South Africa. Asylum-seekers should be treated with dignity as dignity resides in everyone. She agreed that if people were here illegally, the law should be applied. She was concerned about those asylum-seekers who wished to regularise their stay but the RRO had no capacity to accommodate them. The DHA should bear in mind that South Africans fought against a system that had contempt for black people and the post-apartheid system could not do the same thing. These refugee policies did not, for example, take into account health issues. Followed by the 2008 Zimbabwe outbreak, we saw people suffering from cholera and other communicable diseases pouring into the country. The asylum system was in crisis and nothing could be done to conduct health screening for treatment of those diseases. The truth was that the revision of the Refugees Act could not ensure that the system functioned well.

Discussion
The Chairperson sought clarity on how the term ‘dependant’ should be defined if LHR had a problem with the definition and how human trafficking could be dealt in that context. The question was asked of Mr Coertse but he did not give clear answer – if the person runs from DRC on the grounds of economic reasons how should he be treated.

Mr Gumede said that presenters should refrain from mixing up issues of migration and asylum-seeking and thus noted that the government should would together with civil society organisations to find solutions. He sought clarity on how combatting fraud and corruption in the RRO should be conducted; on the assessment of asylum-seekers for work; and on the legal capacity of officials; on the withdrawal of refugee status; and on the provision of additional offences and penalties. He remarked that the Committee would be informed by experiences of the civil society organisations who understood the pain of refugees.

The Chairperson said that she was not the first presenter who said that the Bill should be scrapped in order to focus on the Green Paper on International Migration. Those who knew the process could understand that it would take too long for the Green Paper to become a law.

Ms Ekambaran said the notion that asylum-seekers should be granted a temporary protection was an old notion because conflicts were dragging on. There should be engagement between civil society organisations and the state to find a way of responding to the refugee situation. Sharing information was a key.

Consortium for Refugees and Migrants in South Africa (CoRMSA) submission
Ms Roshan Dadoo, CorMSA Director, said migration was a global phenomenon which was not only affecting South Africa but other nations too. Stopping asylum-seekers coming to South Africa would not create jobs. Building walls would not stop refugees and economic migrants from entering those countries that built them.

The submission focused on the amendments which would limit the rights of asylum seekers in South Africa. There is no evidence that the proposed limitations would address the current challenges within the asylum management system. Indeed the amendments that limited the right to work add on additional administrative functions to the system. Rather, many of the amendments would make it harder for asylum seekers to access the asylum system and remain legally documented within it. As has been repeatedly shown around the world (one has only to look at the desperate measures asylum seekers are currently resorting to at European borders) limiting access to protection did not reduce the numbers of people seeking asylum. It ought to be re-iterated that prohibiting asylum seekers from self-employment would not create jobs for South Africans. Policies and legislation should not be based on misconceptions around the numbers and function of asylum-seekers in the economy but should be considered on empirical evidence and the humanitarian principles enshrined in the 1951 Convention and existing domestic legislation.

CoRMSA submitted that the definition of ‘dependant’ in the Bill precluded children above the age of majority, children that were under guardianship of the asylum seeker, common law partners and elderly family members other than parents. The exclusion from refugee status in terms of exclusions in clause 4(1)(f)-(h) created confusion around irregularities under the Immigration Act and the humanitarian principles of the Act 130 of 1998 and obligations under the 1951 Convention. These provisions were open to subjective interpretation by the RSDO. For instance, arriving without documentation or entering the country other than through a designated port of entry should not be impediments to seeking asylum.

On the withdrawal of refugee status, CoRMSA said that section 5(1)(g)-(f) opened up the possibility of deporting refugees. The deportation could violate the principle of non-refoulement which should be upheld even if the person was convicted or had been deemed to have committed an offence under the relevant Immigration, Identification, Passports and Travel Documents Acts. CoRMSA found the intention of section 5(1)(h) to be unclear. It sought clarity on why an applicant for asylum, or indeed a “category of applicants”, who had been deemed to be a refugee(s) by an RSDO, should be further contingent on the subjectivity of the Minister and Cabinet colleagues. It said that section 22 which spoke about the right to work and study was formulated with intent to violate those rights. Section 22(6)-(8) meant that asylum-seekers were effectively prohibited from legally undertaking piecework, work in the informal sector or have self-employment of any kind as they would not be able to comply with requirements under section 22(9).

Discussion
The Chairperson remarked that the submission disregarded the principle of sovereignty. Worth noting was that sovereignty did not stop people from moving from one country to another. In the history of the world, it could not be accepted that one country should receive a mass influx of refugees. Why, in the modern time, some countries were not receiving refugees whereas others were bearing the burden of admitting refugees. This ought to be explored and explained in the African, Asian, European and American perspective. The fundamental question was: why one country or some countries on a continent could be refugees’ destination? This question should be responded to by those civil organisations that have research capacity and then share with the Committee and the DHA their findings. He sought clarity on whether five days is adequate and what informs the position of maintaining 10 days to reported within? Was there empirical evidence to support 10 days?

Ms Dadoo responded that five days was inadequate because, at the RRO, each and every nationality had a day to report on. There should be more formal engagement with the DHA to see how this matter could be dealt with.

The Chairperson agreed and said the question of a round table discussion could be arranged. A need to request asylum-seekers to register as soon as they arrived in the Republic was supported by the fact that the asylum system was a quick and easy route to get in South Africa. The immigration policy required a visa from an applicant to meet certain conditions whereas an asylum-seeker who arrived in South Africa without anything was granted a section 22 temporary asylum-seeker permit upon reporting to the RRO. He/she was required just to fill in a form. This approach was not right.