In a virtual meeting, Lawyers for Human Rights (LHR) briefed the Portfolio Committee on Home Affairs on migrant issues, including opening refugee offices, statelessness and the application backlog project.
The LHR briefed the Committee on refugee and migrant rights, covering the digitisation of the asylum seeker and refugee system, the documentation of children, systematic xenophobia and immigration detention in South Africa, legislation, detention practices, and increased arrests and detention. This was followed by a series of questions directed to the Department of Home Affairs (DHA) which focused on the way in which the Department was addressing challenges in the areas of documentation, xenophobia and detention.
In a second presentation, the LHR provided a snapshot of statelessness in South Africa, and dealt with access to birth registration, access to citizenship, pathways to durable documentation for unaccompanied and separated migrant children, and the DHA’s identity document (ID) blocking/marking practice.
Committee Members raised questions and concerns over the birth registrations of children of illegal or undocumented persons in South Africa, how ID blocks were being processed by the DHA, and the bigger picture of statelessness in South Africa. The issue of whether DNA testing to prove paternity was, or was not, discriminatory was raised by several Members, who pointed out that South Africans who were not documented also had to submit DNA tests. However, the unaffordability of DNA tests for indigent families was also highlighted.
The Committee agreed that it would have been preferable to have had the DHA present to answer these questions in person. The Chairperson said that a meeting would be scheduled to discuss what the LHR had raised, with both the Department and the LHR present.
Refugee and migrant rights
Mr Lindokuhle Mdabe, Head: Migrant Rights, LHR, briefed the Committee on refugee and migrant rights, during which he covered the digitisation of the asylum seeker and refugee system, the documentation of children, systematic xenophobia and immigration detention in South Africa, including legislation, detention practices, and increased arrest and detention.
The LHR posed questions on these topics to the Department of Home Affairs (DHA) during their presentation:
What challenges was the DHA facing in documenting children of asylum seekers and refugees? What was the plan to ensure that these children were timeously documented?
On systematic xenophobia, how often did the DHA update government departments on the current asylum seeker and refugee documents? How many requests for verification has it received since introducing the online renewal system?
The LHR asked the DHA to make data available for the past three years on immigration detention in South Africa. Was the South African Human Rights Commission (SAHRC) still active in monitoring conditions in Lindela? What was the basis and rationale for the 48-hour rule regarding Lindela consultations?
What was the purpose of this extended detention? How was this a justifiable limitation of the constitutional rights under sections 12 and 35? What was the process of disseminating information to security clusters regarding new rules and practices? How was the implementation monitored? What safeguards were implemented against abuse by security clusters?
How were the security clusters and immigration services trained on the application of laws and rules? Did this training occur regularly? How were abuses of power in the immigration detention system monitored and dealt with? How many minors (under 18) had been in immigration detention over the past three years? What was the current process if a minor was found to be in detention?
(See attached presentation for further details)
Ms Thandeka Chauke, Head: Statelessness Project, LHR, gave a presentation that provided a snapshot of statelessness in South Africa, and dealt with access to birth registration, access to citizenship, pathways to durable documentation for unaccompanied and separated migrant children, and the DHA’s identity document (ID) blocking/marking practice.
Regarding access to birth registration, she said the LHR currently had 451 clients and 1 213 clients in the past five years.
It submitted 57 applications between February and July 2022 on documentation for unaccompanied and separated migrant children, and received only three decisions.
On the DHA’s ID blocking/marking practice -- which was equivalent to citizenship stripping or arbitrary deprivation of nationality, the LHR currently had 114 clients and 584 clients in the past five years. It identified 813 343 cases in December 2021.
(See attached presentation for further details).
The Chairperson recalled that the Committee had received the Human Rights Commission's report in the previous meeting, which had covered some of the topics the LHR had raised during its presentations.
Mr K Pillay (ANC) recommended that the Committee note the report and hold a further discussion with the DHA on the LHR’s recommendations.
It was important to note that while there was an online system, refugees and asylum seekers were also able to walk-in. Refugee centres had been opened. This dealt with the challenges mentioned by the LHR on digitalisation and the online system.
He said stakeholder engagement was an ongoing process for the Department. Within the relevant structures which were in place, there needed to be a space for refugee engagement.
On the registration of children and documents, there was a process and a request for DNA tests even for South Africans who had not been documented. This was not discriminatory, but it was important to verify parentage. The Committee could deliberate further and discuss the matter with the DHA.
Ms M Molekwa (ANC) referred to illegal migrants, and said this also affected children. She had noted the backlog encountered by the panel of interviewers when processing applications. She encouraged the panel to deal with this backlog, verify the parentage of these children, and investigate whether the children were orphans, or if their parents were not married, to make the approval process more efficient. Children should “not suffer for their parents’ sins.”
What was the extent of the Department’s involvement in ensuring these challenges were dealt with? Was there any programme to deal with this?
Ms A Khanyile (DA) said she had assisted many people with registering their children. In most instances, where the father was making an application for their child outside the 30-day period, even if the father was South African, they were required to submit a DNA test to confirm paternity.
She suggested that the DHA would be better suited to answer some of the LHR’s questions. The Department would be better positioned to respond to the court judgments made in 2018 and 2021, and on blocked IDs. The Chairperson should recommend how to proceed. There needed to be time for the DHA to assist and discuss these challenges.
She had had a case in Mpumalanga, where more than 3 000 people had had their IDs blocked. They had got a court order for the DHA to unblock their IDs. She had approached the Department, served the court order, and was then told what steps the Department would take to attend to this. Three years later, nothing had been done. Many people had lost their jobs. People owned guns which were no longer licenced, as they had no ID. She would appreciate it if the DHA was involved in the Committee's discussions.
Ms Khanyile had read online that there had been a judgment that if a child was born in South Africa, then the child should be given a South African birth certificate, regardless of the parents’ nationalities, but she had received a different answer from the DHA. Having the DHA with the Committee would clarify this and allow Members to be better informed when dealing with members of the public.
Lastly, she noticed that many children born to non-South African citizens were being used at traffic lights when parents were looking for donations or extra cash. How could it be ensured that these children’s rights were protected and they were in school during school hours?
Mr T Mogale (EFF) said that the DHA’s DNA testing costs were unfair and unaffordable. How could the DHA ensure that people did not have to pay exorbitant costs just to register their children? Clarity from the DHA on dealing with this would be welcome.
Mr A Roos (DA) said compliance with court orders and judgments was a big challenge at the DHA. He asked whether a list of the court orders and judgments that were not being implemented could be provided by the Department. The Committee needed to understand the DHA’s procedure in processing the court orders. It had been illustrated in the media that permits were not being processed.
He asked the LHR what its source for the number of 10 000 stateless people in SA had been. What was the source of the15 million people statistic?
During the Phakamisa High School case, the Department of Education indicated that there were 1.19 million undocumented learners -- 830 000 South Africans and 167 000 of foreign origin. It was a massive problem, but it was difficult to understand the exact size of the problem. What was the source of these figures?
The delinking of dependent migrants from their parents/guardians had initially been done to prevent children from being stateless and dependent on their parents’ applications. He asked why it was being pushed to be reversed.
The refugee appeals process was criminally slow, but many asylum seekers did not answer their phones, as their numbers may have changed. How did the DHA process applications in this situation? How could this be resolved?
Child-friendly processes were an important recommendation by the LHR, and was also a recommendation in the budgetary review and recommendations report (BRRR) which would be debated today. It had looked at the mobile units, and the need for unidentified children -- particularly undocumented South African children -- to be linked to a Home Affairs office and to have some interaction with a social worker to ensure the case was not dropped when the mobile unit left.
One of the recommendations had been a DNA test for indigents. That was being followed up, and was something the Committee needed to follow up on.
Mr Roos said he was dealing with a case with South African persons in Tshwane. His team had assisted in getting access to DNA tests. At 30 years of age, one person was finally getting citizenship. They had not been able to attend school from Grade 8 onwards due to a lack of identification. Proof of indigents’ identity was critical. People were left for decades, not able to get citizenship, simply because they had been unable to afford the R1 750 for a DNA test.
The BRRR recommendations had been good, and the Committee also needed to follow up on them.
Ms T Legwase (ANC) said she would be interested in hearing the DHA’s responses, especially on the non-implementation of the outcomes.
Referring to the LHR, she asked how Ms Chauke handled the queries. Was there a way the LHR had resolved this with the DHA? What was the extent of the engagement between the LHR and the DHA?
It was important for the DHA to answer the questions raised today, as it was more relevant to pose these questions while the Department was present. As Mr Pillay had mentioned, the Committee needed to have a conversation with the DHA on the issues that LHR had raised.
Ms L van der Merwe (IFP) asked for more information on the 15 million stateless persons mentioned.
She asked the LHR about birth certificates versus birth records -- was there an international best practice on this? In the US, UK, Nigeria, and India, if babies were born to illegal migrants, were they given legal documents, or issued a record of birth, as the DHA did? Was this asking too much of the DHA , asking it to comply with what was done in other countries?
Could the Committee be provided insight as to how to contact asylum seekers if they were not contactable?
What could be done to avert the risk of easier access to documents, which could result in children being abandoned in South Africa when born to illegal migrants? During the public hearings on the Children’s Amendment Bill, it was shocking to learn that most of the communities involved in the public hearings had cases of children born to illegal migrants being abandoned.
Ms van der Merwe said she sat on the Social Development Committee, and it was true that paternity tests were also done on South African fathers. It was not meant to be discriminatory, but to prevent children from being vulnerable to trafficking. Were there other mentioned proofs of paternity? Was a DNA test more reliable in preventing child trafficking and smuggling?
What was the reason for the high number of stateless persons? The LHR had highlighted challenges faced by the DHA, so the Committee would also need to hear from the Department.
Looking at LHR’s slides on the statistics of countries of origin of stateless persons, she had thought that international law dictated that when someone applied for refugee/asylum seeker status, it had to be done in the closest country that was safe. Many of the listed people were from the Democratic Republic of the Congo (DRC), Nigeria, and Burundi. Why did so many people come to South Africa to acquire documents?
The Chairperson thanked Members for their questions directed to the DHA. The Committee would compile a report that would be referred to the DHA to deal with the issues raised. DHA had done positive work. A meeting would be scheduled for the Department to deliberate with the Committee.
He said that LHR needed to highlight the nature of its relationship with the DHA and the history of its work. Was there progress on this or not? And what were the reasons?
Mr Mdabe responded that the LHR had had conversations with the DHA in different offices in different provinces. These conversations had taken place through the relevant LHR clinic heads, while addressing issues at the micro-level. They had had successful interventions in certain instances, but some were structural and systematic and not suitable for the offices that LHR had interfaced with at the local level. The LHR needed assistance from the DG or Minister to address these interventions.
On paternity tests, LHR was not saying it was discriminatory as much as it was a challenge of affordability and cost for indigent parents. Who should be responsible for the costs? This was the challenge.
On Mr Roos’ question on delinking, the LHR had noticed that this was related to dependants applying to join the main refugee/asylum seeker status holder, as a child/dependent relied on their parent’s claim. The claim was what formed the basis for receiving refugee status. When the children came of age, they were stripped of the claim, leaving them to rehash their parent’s claim. It was more efficient to keep the claims in one file and ensure that it did not prejudice someone who had come of age.
Ms Chauke said that on statistics, the figure of 15 million referred to people without a legal identity, not necessarily just people who were stateless or migrants. It had been drawn from the World Bank dataset on people without legal identity. It was a rough statistic for people in South Africa without legal identity -- both South Africans and non-South Africans. These figures allowed the LHR to see an estimated population of those at risk of statelessness in the country.
The 10 000 stateless people was a statistic from the United Nations High Commission for Refugees (UNHCR) in 2016. She did not know the complete source. This was not a conclusive number, but rather used as an estimation. This was supplemented by LHR law clinics’ statistics on birth registrations and blocked ID clients, among other cases.
On data collection, she said that qualitative and quantitative data on statelessness was required to deal with statelessness in the long term in South Africa. The UNHCR had guidance documents for collecting data on stateless persons. The DHA would have a critical role to play in a national study on statelessness, along with civil society organisations and national human rights institutions.
On DNA testing, there was discrimination, which had to do with “reasonable suspicion” as mentioned in the circular, which allowed officers to apply unfettered discretion. This was usually where the mother was a migrant or undocumented, or the father was viewed with unjustified suspicion. Discrimination and cost were both relevant in DNA testing.
Mitigating the risk of trafficking, and children being registered for unscrupulous purposes, had been dealt with in a Constitutional Court judgment. It had been noted that alternative forms of proof of a biological link, such as proof of birth issued by hospitals, an affidavit from the mother or family, or confirmation of paternity from the Children’s Court, could be used as an alternative to DNA testing, which should be applied only as a last resort. Indigent families who could not afford DNA testing needed to be considered. It should not be the case that a child was blocked from accessing their citizenship or documentation because their family could not afford R750 for DNA testing.
Ms Chauke referred to birth registration for children born to irregular or undocumented migrants, and said there were documents that provided best practice at the regional and international level. One of these documents was a guidance document to best practice issued by the UNHCR that dealt with birth registration to prevent statelessness. There was a suggestion for civil registration authorities to accept alternative forms of identity where the parents did not hold identity documentation themselves.
For example, in Lebanon, the government accepted the Syrian family booklet as proof of parental identity and marital status to register births. In other African countries, governments accepted witness affidavits, or testimonials from people who may have witnessed the birth of the child, as alternative forms of confirmation of parental identity.
In the regional system, the African Committee on the Rights and Welfare of a Child also published a general comment on birth registration, and issued examples of best practice on how to navigate documentary requirements. The emphasis was on ensuring the best interests of the child, and that children did not have to inherit the documentary challenges of their parents.
Ms Chauke noted that even for South Africans born outside of South Africa, one of the foreign birth registration requirements was a birth certificate from the country of origin. It was not asking the DHA for too much to say that the DHA should issue birth certificates to all children born in South Africa, as children would not be able to claim citizenship in their country of origin.
On compliance with court orders and judgments, the LHR welcomed the Committee’s suggestion for a list of court orders and judgments that could assist the DHA and those with an interest in advancing the rule of law and protecting human rights, to monitor the implementation of court judgments and to ensure people had a sense of relief after going through the court system. The LHR could commit to providing this to the Committee.
She acknowledged that the LHR needed to find a way forward to work efficiently with the DHA on queries, progress, and obstacles. Engagement was difficult at a local level. It needed to be a top-down approach. Scheduling was difficult with senior management. Lower-level staff were non-responsive to the LHR’s queries and concerns. The LHR needed to meet periodically with the DHA to discuss complicated cases. This could be a way forward to resolve hundreds of clients’ cases.
Dialogue and capacity-building were also important. Civil society was always available for dialogue and capacity-building with the DHA, particularly with the local offices.
The LHR’s last resort was the courts when it received no response, as clients needed assistance with their cases.
The Chairperson thanked Mr Mdabe and Ms Chauke for their presentations, comments and responses, and Members for their questions and comments. They had identified obstacles in engaging with DHA.
The Committee would note the recommendations and issues raised by both the LHR and the Committee. He would schedule a meeting to discuss them with the DHA, and the Department should liaise with the LHR before this meeting. He appreciated that the LHR had interacted with all the relevant offices.
He affirmed that the law of the country needed to guide the immigration process and in the interactions with the public of SA.
The Acting DDG would send a spreadsheet which would be circulated to the Committee.
The meeting was adjourned.
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