Refugee situation in Cape Town: stakeholder engagement; Public Protector Report on naturalisation; Permit/visa review; with Ministry

Home Affairs

26 February 2021
Chairperson: Mr M Chabane (ANC)
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Meeting Summary

Video: Portfolio Committee on Home Affairs, 26 February 2021
20 Oct 2020: Refugee situation in Cape Town: stakeholder engagement; with Minister and Deputy Minister
10 Mar 2020: Refugee situation in Cape Town: stakeholder engagement; with the Minister

The Committee met with the United Nations High Commission for Refugees, City of Cape Town, Ministry and Department of Home Affairs to receive a progress report on the integration or repatriation of protesting Cape Town refugees.

Members stated it still seemed as if there was a lack of coordination amongst the stakeholders despite the Committee's previous recommendations to do so. The discussion also included the unpleasant living conditions of the refugees and asylum seekers on the two sites; reintegration and voluntary repatriation of the refugees; and the role of Home Affairs. Members asked about the lessons learned and if there was a better process in place; had a standard procedure plan been instituted to deal with similar matters in future; how many of the 1 580, have been processed, rejected or accepted; if families have come forward for help to be repatriated; budget for housing the refugees in Bellville and Maitland; time taken for finalisation of asylum or refugee status applications for as well as appeal timeframes.

The Minister explained that the Department and UNHCR are close to signing an agreement which will provide 36 legal trained people for a four-year programme to assist Home Affairs to clear its refugee appplication backlog.

A report was given on the Department implementation of remedial actions in the Public Protector Report on Naturalisation. It included disciplinary action against department officials who were involved in the naturalisation of Mr Ajay Gupta and his family for their failure in exercising due diligence in verifying the accuracy of the motivation for early naturalisation. It had also appointed a Ministerial Committee tasked with reviewing the issuance of permanent residence, corporate permits, professional (scarce skills) visas, citizen naturalisation and retired persons visas from May 2004 until December 2020.

The Committee welcomed the efforts put in place by the Department. Members commented about the former Minister not being held liable for the Gupta family early naturalisation.

Meeting report

Mr M Chabane (ANC), Acting Chairperson, welcomed the Minister and Deputy Minister. The meeting would take a brief on the progress made about the Cape Town refugees. The Committee has conducted oversight on this matter and engaged with it in 2020. In that engagement solutions were discussed on how the Department must interact with the matter. This matter resulted due to the conduct that was displayed last year. Providing a way forward must be at the centre of the discussion in dealing with this matter. We need to ensure that our brothers and sisters from the Africa diaspora are assisted.

United Nations High Commissioner for Refugees (UNHCR) briefing
Mr Leonard Zulu, South African UNHCR Representative, spoke to the UNHCR mandate; functions; its principles and how it works with states and then provided feedback on the refugee situation in Cape Town. The Cape Town Field Office (CTFO) held meetings with the representatives of two sites in Cape Town to encourage them to reintegrate into communities on 19 and 23 November and December 1 respectively.  Available support was discussed with both sites for those willing to be assisted with repatriation to their countries. The CTFO is consistently engaging with protest leadership reminding them of the reality of the decommissioning of the protest sites once the National State of Disaster has been lifted. It continually informs protesters at both sites of its support together with UNHCR partners for those who will reintegrate into communities, as well as support for voluntary repatriation.

UNHCR is already strategizing with its partners on how to move fast in providing the necessary support to those opting for reintegration. UNHCR is finalising cases of Burundian families who have approached UNHCR for assistance with repatriation. It is currently assessing the lists received from these sites to determine the necessary intervention/support. To date, 57 families and 123 children have approached the UNHCR legal partner requesting assistance with the enrolment of their children at schools. UNHCR is an active participant in the Provincial Joint Operation Centre meetings to discuss ways of finding a solution to the protest situation.

On voluntary repatriation, since the last week of December 2020, UNHCR has received cases of families requesting assistance with voluntary repatriation. The majority of these cases are women and children, some with their husbands, some not. UNHCR is now in the final stages of finalising these cases with the International Organization for Migration (IOM).

We are expecting more calls from refugees and asylum seekers in the protest sites to approach UNHCR and our partners for intervention. Refugee leaders are also hard at work encouraging those they know in the protest sites to consider returning to communities for the wellbeing of their children.

City of Cape Town (CoCT) briefing
Mr Robbie Roberts, City of Cape Town Director of Law Enforcement , gave a progress update of the refugee camp sites; the lack of coordination by stakeholders; and the role of the CoCT and the Department of Home Affairs (see document).

Department of Home Affairs (DHA) briefing
Mr Jackson Mackay, DHA Deputy Director-General: Immigration Services, gave a briefing on the findings on the 1 580 cases; including a progress update on the Refugee Appeals Authority of South Africa (RAASA); Standing Committee for Refugee Affairs (SCRA) and Cape Town Refugee Reception Office (CTRRO).

RAASA conducts appeals against asylum applications rejected as unfounded by the Refugee Status Determination Officer.  RAASA attended the verification processes to issue hearing notices to finalize the appeals; 583 – individuals were identified and verified as on appeal. 151 appeal hearing notices were issued during the verification process - 103 appeals have been finalized and 48 appeal cases were pending. 432 are awaiting finalization of appeal. Out of 103 appeal cases finalized, 89 were finally rejected and these cases will be handed to the inspectorate for final processing and 14 were granted refugee status.

SCRA functions include review of refugee status determination officer (RSDO) decisions which were rejected as manifestly unfounded, abusive and fraudulent.  SCRA also attends to certification and withdrawal of refugee status. 381 cases were referred to SCRA for processing and SCRA attended to 112 cases.

The Department provided feedback on the protest leaders. The case against Ms Aline Bukuru was heard on 11 February and on 25 February 2021 when the case was postponed to 2 March 2021 due to no interpreter. She remained in custody. The final rejection notice by Refugee Appeals Authority of South Africa (RAASA) was ready to serve on Papy Sakumi; however, he was currently in hiding and security cluster departments were assisting in tracing him. JP Balus withdrew his appeal application. He was in court for his criminal case on 10 February and 19 February 2021. The case was postponed to 25 February 2021. He was still in custody at Pollsmoor.

In conclusion, the UNHCR has engaged in various consultations at both these sites to address those who have indicated their intention to participate in a voluntary repatriation programme or reintegration. On 15 February 2021, Mr Leonard Zulu, UNHCR representative for South Africa, was also in Cape Town and personally held consultation sessions with both groups at Paint City and Wingfield military base and offering financial assistance of three months rental payments by UNHCR for those who want to reintegrate and also assistance for those who want to repatriate to their countries of origin.

Ms M Molekwa (ANC) appreciated all the briefings as they were detailed and comprehensive. She noted that all stakeholders are involved in this matter and committed to address the challenges. However, it seems that the stakeholders are working in silos – they should be dealing with this as a collective.

She proposed that the stakeholders met to develop a comprehensive process plan that involves all of them to resolve this matter. When one looks at the Cape Town presentation, there are issues that need to be attended to by all stakeholders.

Mr A Roos (DA) agreed and said that it is a mess that was created by lack of leadership to begin with. In October 2019, the Committee called a joint meeting with the Portfolio Committee on Cooperative Governance and Traditional Affairs to look at this matter and recommendations were made, especially that the stakeholders needed to work together and monitor and coordinate at a national level.

We need to ask about what lessons have been learned and if there is a better process now. There must be progress because we have arranged a lot of meetings to encourage the stakeholders to work together. We need to look at what has been learned out of this situation and use that to apply in future similar situations.

Based on the October 2019 meeting recommendations for stakeholders to work together, he asked Home Affairs if it has come up with a standard working procedure on how to deal with this matter in future.

Mr M Tshwaku (EFF) said that to avoid what happened at Beitbridge, where no one is certain about who does what, we need to know who is responsible for what. There is no coordination amongst the stakeholders and this is the same issue observed at Beitbridge.

He advised that Mr Mackay take the lead and take care of those people and ensure that their asylum applications are ready to avoid having to restart the application process when things go back to normal in the country. We have seen what happens – the police brutality in the Western Cape – if they are not taken care of, they will be exposed to that.

This matter must be treated exactly the same way the Beitbridge matter was treated. We need to impose an implementation plan with timelines.

The Committee must get a report from DHA on the asylum applications, out of 1580, how many have been processed, rejected and accepted as well as details substantiating these outcomes. Members would also appreciate a more detailed report on the asylum criteria.

We need details on each stakeholder's role as well as the humanitarian conditions in the camps these people are living in. Covid-19 regulations are not even adhered to at those sites. Children must go to school.

Ms T Legwase (ANC) agreed with the previous speakers. Since last year, what has the CoCT done while it was waiting for the reports from the other stakeholders. How is DHA assisting those who are undocumented in those camps? This becomes a backlog issue. We cannot talk as if refugee applications are only in Cape Town when they are all over the country. We need to identify the weaknesses and loopholes and where the mistakes were made. We need to add a section in the Constitution that deals with refugees, because currently it is really difficult to deal with refugee and asylum matters.

The Acting Chairperson said that everyone was familiar with the plan drawn up to deal with this matter. The Committee has conducted oversight and there was an appreciation during oversight about the backlog due to human resource constraints. We need to hear the DHA plan on the matters that have been raised.

Ms L Van Der Merwe (IFP) said that it has been more than a year and it was sad to see little to no progress. When Members visited the sites it was sad to see the living conditions of the people – no PPE, no proper ablution system, no cooking facilities, living on top of one another. This speaks to an immigration system that is broken and the abuse of the system that is rife. The lack of action and leadership has led to a report that is not indicating much progress. Hopefully, out of this meeting there will be solutions and progress.

The UNHCR offer of transport for people to be repatriated back to their countries is laudable.  How many families have come forward for help to be taken back to their countries?

She asked CoCT how much budget has been spent so far on housing the refugees in Bellville and Maitland.

How long does it take DHA under normal circumstances to finalise applications. How many employees are available at the DHA refugee units? We heard that there were only four units available across the country which is why the Auditor-General calculated that it would take 68 years to finalise the backlogs. How long does it take for an application if there is an appeal? She asked for the number of staff members in each unit.

She noted the engagements with the DRC and Burundi ambassadors and asked if there were engagements with other ambassadors. Has there been any progress to find Papy Sakumi?

The Committee needs to have clarity on the way forward as well as who is doing what and when.

UNHCR response
Mr Zulu replied that we have to understand the roles and responsibilities that each stakeholder has to play in order to carry out certain action. The humanitarian situation at the two sites is appalling and it is likely to get worse. The shelter and ablution at the sites is appalling and we are unable to continue supporting government with that because of the costs involved. On 4 March that assistance will be discontinued, unless the CoCT takes over or government.

Going forward, we need concrete lists to work off and the Department has these lists which will be shared with the rest of the stakeholders after the procedural work is completed. From the lists we need the name, nationality and legal status of the person. Voluntary repatriation is not open for asylum seekers and refugees. People who want to go back to their countries cannot be assisted without that list.

We are here to support the government but government must also help us by providing the information required to provide support.

For this year there are 122 individuals that have come forward for voluntary repatriation, and 65 of those are individuals from Cape Town. We are helping these individuals with this process. When we go on site, it would assist if Home Affairs also joined us on site. In that way, the process is able to move more quickly. We think there are more people and we are ready to move on site and establish a mobile office; hopefully the Department can also establish a mobile office on site.

CoCT response
Mr Roberts replied that the CoCT presentation had responded about working in silos and the coordination of these interventions. When it comes to the City of Cape Town, we have a specific role to play that is governed by the Constitution. Local government does not have a role to play in repatriation and reintegration of refugees. In the spirit of trying to find a solution, the City has worked closely with other stakeholders to assist with the various resources available.

There was an effort by the Department of Public Work to hand over the refugees to the City of Cape Town but that is not in line with the mandate of the City. It was made clear that the City has no responsibility in this matter; otherwise, the City may expose itself to other risks. With that said, the City has offered limited services such as ablution facilities and other basic services required by the refugees. Necessary assessments and verifications have been by the environmental scientists of the City and relayed to the Department and other relevant stakeholders to act swiftly to assist.

Minister of Home Affairs response
Minister Aaron Motsoaledi said that lack of coordination would be a false report because ever since the Committee insisted that the stakeholders must work together, he was getting reports that there was coordination and stakeholders were indeed working together.

He was indeed worried about the standard of living in the camps. DDG Mackay had given him the letter from Treasury in response to asking for more money. That letter reminded Home Affairs that in our policies and laws, there is no law about camps for refugees or asylum seekers. That letter stated that even if Home Affairs had spent the money for that purpose it would be declared irregular expenditure. According to the law, it is the responsibility of local government to provide water and ablution facilities. It is the City that must ask for that funding for any human being, whether it is from this country or not.

Immunisation is carried out by the Department of Health and Home Affairs can provide the documentation for that to happen. The Department of Basic Education must facilitate that kids go to school; it cannot be the Department of Home Affairs. The unfortunate part is that everyone thinks that Home Affairs must be responsible for everything that has to do with refugees and asylum seekers, but it is not the case. The laws of this country make that very clear. There was a court ruling that the R350 unemployment grant during lockdown is to be facilitated by the Department of Social Development for all persons, whether foreigners or not.

UNHCR is offering people integration, they are doing something that has never happened – reintegration into communities. They are offering people three months’ rent to reintegrate into the communities they were in. These people came from communities and some had jobs and some of them still have jobs. With all the efforts made by UNHCR, there are those rejecting that on the basis that they want to go overseas. Some are saying they want to go to Canada. It has been explained over and over again that this will not happen. Some people at those sites are not going back to their communities because they have been told that if they are found to have gone back to their communities and the time to go to Canada comes, they will be left behind. This is what is being said. The tents were installed through the disaster regulations and when the disaster regulations come to an end, those tents will have to be removed. It will be desirable if people accept the UNHCR offer to reintegrate, failing which they must take the offer to be repatriated to their country. The Department is ready and willing to move in and assist with repatriation.

On the Auditor-General saying that it will take 68 years to clear the backlog, it is true it will be so if no capacity is provided. Resources will be made available to establish a four-year programme to deal with the backlog of refugee applications. People will no longer need to travel long distances. Next week he is meeting with Mr Zulu to finally sign an agreement with UNHCR. This process took long due to protocols that have to be observed by stakeholders before financial support is transferred. The agreement will be signed next week and 36 people with legal background will be injected into that four-year programme to increase capacity across the country until the backlog is cleared. The AG said it would take 68 years under the existing conditions which will be addressed through this four-year programme.

Mr Mackay added that Department has not been able to trace Papy Sakumzi yet but the police and intelligence agencies are assisting in trying to find him. He wanted to point out that asylum seekers still have the right to take the Department on judicial review in challenging the outcome of the application.

The Acting Chairperson thanked the stakeholders and asked them to look into enhancing coordination and setting up clear roles for each stakeholder. Coordination is important otherwise we will be failing the people on the ground. There are areas where there is no synergy and clarification of coordination amongst the stakeholders and this needs to be addressed.

Gupta Naturalisation Public Protector Report: remedial action
The Minister summarised the recommendations and remedial instructions given to the Minister and the Director General. He divided the findings and remedial action into three categories:
1. For naturalisation a person must spend a certain time in the Republic. However, there is naturalisation which depends on the Minister’s discretion, perhaps the individual is a big investor or might contribute to the country one way or the other. In the case of the Guptas, the Minister used discretion but the Public Protector found it was wide and not described – anyone can point to anything. So, the PP ruled that guidelines must be developed that will be provided to officials to establish a uniform approach of what might be classified as exceptional circumstances.

The Department is drafting these guidelines and they will be finalised on 15 March 2021.

2. The Public Protector said that the person asking for naturalisation must provide a motivation, which outlines the reasons to be considered for early naturalisation. DHA will develop a form in which a person is obliged to give all that required information and motivation to avoid discretion.

The draft amendment regulations are being developed by DHA Legal Services in consultation with the Chief Directorate of Citizenship and Travel Documents. The final draft will be presented to the Minister before 31 March 2021 for approval. After approval it will be published in the gazette for public consultation. We believe that by June 2021 this process will be concluded.

3. When a person is naturalised early through special circumstances and discretion by the Minister; the Minister is required to report to Parliament how the decision was reached and must attach in the submission all relevant information and documentation to support the application.

The Department’s plan to address this has already been sent to the Public Protector.

Mr Livhuwani Makhode, DHA Director-General, said that the second category in the implementation plan involves the Director General. The remedial action for the Director General is to take cognisance of the findings and ensure that such conduct is not repeated and appropriate corrective action is taken. Once the regulations are amended, we will ensure that officials are trained on the process. We hope to complete this process by June 2021.

The second part of the remedial action is to take action against departmental officials involved in the naturalisation application of Mr Ajay Gupta and his family for failing to exercise due diligence. The officials did not verify the accuracy of the information contained in the motivation. The officials who are still within the Department have been referred for disciplinary measures. There were 16 officials identified in the Public Protector’s report. Of the 16, three have already retired and others have sought employment elsewhere. There are now only 10 employees left within the Department at various levels and human resources is dealing with this matter.

Minister Motsoaledi said that as part of this process he would put together a team to review permits. The Department has taken a decision that certain permits need to be reviewed. The reason this decision was taken was that during the course of investigation by the DHA Anti-Corruption Unit, disturbing issues were discovered. One of these was that close to 66% of all investigations are about permits and immigration. During the course of investigation, the permitting unit lodged a grievance against the anti-corruption unit saying that it was harassment. Now, a petition signed by 14 permitting unit staff states that the anti-corruption unit must stop investigating their errors. This is extremely disturbing. We also realised that South Africans get very angry when they see people crossing the border illegally to come and work on a farm and earn a living and go back to feed their children. However, there is another group of people who wear suits and have money who come to South Africa and ask favours in the permitting unit. This second group is not monitored because they come on planes and in suits and expensive clothing. We have discovered that there are many of them. We want to pay attention to them. Surely Members are aware of the story of Omotoso who is now charged with rape; he has South African documents that were acquired irregularly.

For this reason the Department has taken this decision – certain categories of permits dating from May 2004 need to be reviewed by a team of experts. May 2004 is when the Immigration Act came into operation. Before that, the Act being applied was the Aliens Act and it was very difficult to come to South Africa under that Act. When the Immigration Act came into effect, people started being permitted to come to the country.

Terms of reference have been developed and the team will investigate all permanent resident permits issued from May 2004 until December 2020. Secondly, all corporate visas, especially in the mining sector, will be reviewed on how each one was done. Thirdly, with study visas – a number of them have become permanent residents. Fourthly, work permits for professionals except for people working in the farms – this will be left to the Inspectorate for Corruption Unit. Lastly, retirement visas – people with a lot of money wanting to retire in South Africa.

In November 2020, he asked the retired DG in the Presidency to develop a policy document about this matter, which he did and he has now been appointed as the person who will chair this Committee. The team has been given three months to produce the first draft report of its findings to ascertain if the terms of reference can be expanded.

Ms Molekwa appreciated the manner in which the Department was attending to the PP remedial action. The Minister and the Department should be allowed to attend to the matter and report back to the Committee.

Mr Roos said that the Democratic Alliance welcomed the moves presented today but the prevailing concern was the non-reporting to Parliament. It is a shame that it seems as if Mr Gigaba is going to get away with it.

Mr Tshwaku said the PP Report is binding and all these actions must be followed through. However, on the investigation of all the other permits, Home Affairs must share the terms of reference with the Committee. This process must not be a witch-hunt.

There are a number of people that have approached his office about naturalisation. He noted the treaty signed in 1994 on behalf of the people that came into South Africa running away from the wars in Mozambique. Those people have been here for over 26 years – he has a list of about 800 people and the parents passed on. The majority of them do not have an ID. Perhaps the Minister can advise on what can be done in this case.

He also has a number of people he is expecting a memorandum from and he would like to submit that. Some of these children are now in matric and cannot write because they have not been naturalised. What is the process that can be followed and is the Minister aware of this matter?

Ms Van Der Merwe asked for the timeframes to conclude this review because reviewing visas that had been issued 16 years ago will be a massive task.

Ms Van Der Merwe did not agree with the PP findings that former Minister Gigaba did not abuse his powers and all responsibility rest with the officials in the Department. There will be disciplinary hearings for 10 Department officials whereas former Minister Gigaba will not be facing any sanctions. These officials could have been put under duress to process the Gupta naturalisation applications. It has since been established that there is a close relationship between the former Minister and the Guptas.

Ms Van Der Merwe said it is deeply concerning that there were no guidelines on issuing of visas before – the visas were being issued willy nilly. Last year, the Public Servants Association lashed out at DHA for suspending a senior official, Ms Amanda Ledwaba, who was apparently suspending for investigating foreign nationals who had allegedly obtained citizenship fraudulently. It was alleged that she was suspended because she abused her powers when she investigated the citizenship status of certain high profile foreign nationals associated with politicians. She asked what the current situation is with Ms Ledwaba seeing that the Department will be embarking on a similar process now.

The Acting Chairperson asked about the logic of starting from 2004. Since 1994 up to 2004, were there no such matters?

Director-General Makhode replied that the terms of reference were shared together with the letter that was sent by the Minister. In the next three months there should be an interim report, it is a huge task but if there is a need to extend then the Minister will advise on that.

Deputy Minister Njabulo Nzuza said that the belief is that the investigation will help understand system deficiencies for the future.

The Minister said that there must be a process to review the previous Acts with the view of integrating them into the current one. The terms of reference have already been sent to the Committee.

On the Mozambique matter, those people have been in South Africa for a long time. Those people were naturalised, that process was done. This was a separate matter. Their names will be taken to the Cabinet and asked for a special dispensation as there is no way they can go back to Mozambique. He said the names can be submitted to the Ministry.

The categories of permits mentioned have numbers – we will put those numbers to the team and determine how long it would take for the investigation.

As for the matter of Ms Amanda Ledwaba, this is a big story; it needs a special press conference of its own. We have been on this matter for the past six months; the Hawks are involved and in a few weeks we will make an announcement.

The Acting Chairperson, in his concluding remarks, said that the Committee welcomed the process initiated by the Department to implement the remedial actions of the Public Protector Report No: 18 of 2020/21.

He welcomed the commitment by the Minister to annually within 14 days after the commencement of Parliament, table the names of persons who are granted naturalisation certificates.

Members also welcome the appointment of a Ministerial Committee to review the issuance of permanent residence, corporate permits, professional visas, citizen naturalisation and retired persons visas.

The meeting was adjourned.

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