Introduction:

Mr Chauke, the Chairperson of the Parliamentary Portfolio Committee, invited me here today to highlight some of broader issues affecting Refugees and Asylum seekers, as the introduction of this Bill provides an opportunity to do so. I have selected four broad issues viz local integration, DHA’s failure to implement the existing law or more specifically – the monitoring of the refugee reception offices, the increasing number of unlawful arrests and deportations and lastly xenophobia. He also left me with a challenge – To take these very broad issues and to link it to the specifics of the Refugees Act and or the Refugees Amendment Bill.

Before I take on that challenge I would like to comment on the process of consultation as well as the institutions consulted for the Refugees Amendment Bill before us today.

Process of Consultation and institutions consulted:

We are all aware that an Amendment to an Act is an acknowledgment that there are shortcomings that need to be addressed and clearly after eight years of the Refugees Act having been in operation practitioners like ourselves, the DHA and the recipients of this Act ( refugees and asylum seekers) have established that problems that have arisen.  

It was this realisation by the Department of Home Affairs that the UCT Law Clinic and several other organisations referred to in the memorandum on page 15 of the Amendment Bill were consulted by the Department of Home Affairs. UCT LAW Clinic’s Refugee Rights Project have been extensively consulted by the DHA  on the Amendment to the Refugees Act – not only were we given the opportunity to engage them in debate, we have also  made written submissions on more than one occasion in this regard. 

I am however troubled by the fact that the State Law advisors are of the opinion that it is not necessary to refer the Bill to the National House of Traditional Leaders. The State Law Advisor provides a reason for this – and the reason being that the Bill does not contain provisions relating to customary law or customs of Traditional communities.  That may be the case but in my opinion it was a huge oversight not to invite traditional leaders to the initial discussions – we know from history that many people from neighbouring countries who fled for refugee related or other reasons were granted protection by traditional leaders, especially those refugees that the traditional leaders categorised as kin, eg the Shangaan from Mocambique. Not only were these refugees granted protection but they were also used by the Traditional leaders to expand their power base. This pattern probably continues today with many Ndebele –speaking from Zimbabwe entering South Africa. Not so long ago a special assignment programme highlighted the involvement of traditional leaders in assisting migrants apply for status in South Africa. --------------

Legislation is normally top down but when government consults it should do so widely and in this case it did not do so widely enough. I think all of us would have been just a little wiser had we had input from Traditional leaders.

Also, while refugees and migrants are the objects of national law, of this law in particular, they are excluded from the formal mechanisms of influencing that law, such as voting representatives into the national legislature. – Therefore possibly consultations with refugee communities as well would have been useful.

1. Local Integration

The first of the broad issues that I wish to focus on is Local Integration. We are all aware that in South Africa there are no refugee camps and as a result the refugee communities live amongst the local population. We know from our interaction with refugees that they are faced with many obstacles because their presence in the South African society is in many ways a new and strange phenomenon to the locals. UNHCR has identified local integration as the preferred durable solution for refugees in SA. However, local integration means different things to different people – for some it means that refugees must learn to speak a local language, must live amongst the community, that they must dress like us, etc . That to me sounds more like assimilation rather than integration – Let us not do what the Europeans and the French in particular are doing – “Become like us or go home” . Assimilation should be identified as a crime against humanity – Everyone in this country should be safeguarded by the Constitution that refers to a right to culture and a right to language amongst other.

Let me share with you my definition of Local Integration. In my opinion it is a course of action which allows the refugee or the asylum seeker to lead a meaningful existence within the host state: it therefore must be a process which allows for the development of the human potential. This is clearly not happening in South Africa and one of the biggest obstacles to local integration is of course that of their documentation. Whether it is the lack of documentation or too many different types of documents or documents that are simply not recognised by South Africans, not even other government service providers. 

DHA’s failure to implement the law (in terms of the access problems that newcomers face in attempting to lodge applications and obtain asylum seeker documents) has left many asylum seekers undocumented and vulnerable to arrests but let me for now focus on the existing documents for a recognized refugee in terms of the Act and what I propose is a shortcoming in the Amendment Bill.

In the consultative process that led up to the Bill, it was constantly repeated by DHA that one of the purposes of the Bill was to streamline the refugee process. I personally would have, from a local integration perspective, would have liked to see a streamlining of the type of documentation that refugees receive. According to the Act, documentation for refugees is issued in terms of s24 of the refugees Act and a further identity document in terms of section 30 of the Refugees Act. This is unchanged – Leaving it as is, is not stream-lining the process.  More significantly, it is only the identity document that contains the thirteen – digit identity number (the all-powerful).

Why not issue a recognized refugee with a 13-digit identity number immediately and then an ID book that is valid for five years as opposed to the current two year period. [LHR and the format of the ID doc]

It is our experience that refugees who do not have this thirteen –digit refugee identity number are failing to lead a meaningful existence in South Africa. They cannot obtain a learner’s licence, a driver’s licence – they cannot even register their cars or even claim their UIF that they have diligently paid for. Certain banks - even though they initially allowed refugees to open bank accounts later due to Fica Legislation refused to release refugee’s monies because they did not have the thirteen-digit identity number or because the identity documents had expired. Refugees are thus clearly prejudiced because of this lack of streamlined documentation, the lack of provision of their documentation in a timely manner, in addition to such documentation being so dissimilar to that of South Africans. As a result, Refugees are not able to bank their money, for example making them obvious targets for robberies. They are struggling to find employment because South Africans do not recognize their documents. Health care officials are often unaware that refugees are here for protection and therefore they are often treated the same as other foreigners. One can go on and on here.

2. Failure to implement the Refugees Act - Monitoring of the Reception Office .

As South African Lawyers we are always proudly announcing to the world that our Refugees Act even without the Amendments is a very progressive law   and we are aware that there are problems but that it is with DHA’s failure to implement this law rather than the law itself. The biggest culprits are of course the Refugee Reception Offices – whether it is the management , the refugee reception officers – they always have an excuse – we don’t have enough computers, we need better training --------------corrupt!!! 

With that in mind I would like to draw your attention to s9 and s11 of the Refugees Act. The Standing Committee ( an independent body) is established in terms of section 9 and granted certain powers under s11 of the Act – It no longer exists according to the Bill, (no problem with the removal of the SC) however the Standing Committee has certain very important duties to perform viz the supervision of the work of the Refugee Reception Offices - and secondly it also has the duty to decide any matter of law referred to it by an Refugee status determination officer. 

Firstly, who will now supervise the work of the Refugee Reception Offices – It is not enough that the Bill refers to the D-G as the authority to appoint officers to perform the administrative functions connected to the refugee reception offices. The supervision of the work of this office and its management must ideally be stipulated in the Act and it must preferably be performed by an independent body. If it is going to be the task of the existing Refugees Affairs directorate – it should be included in the Bill for the purposes of accountability. 

Secondly, regarding the referral of questions of law to the Standing Committee – once again, to whom now? Is it enough that the DHA will hire people “who will have such qualifications, experience and knowledge of refugee matters” as stated at s8* of the Bill. Logically if they are unable to refer questions of law to a more senior body then the ongoing training of Refugee Status Determination Officers is even more important. However the Bill has repealed both sections of the Act which referred to the training of Refugee status determination officers.

The Bill proposes that the Standing Committee merge with the Refugee Appeal Board to form a new body called the Refugee Appeals Authority – I must apologize at the outset to my dear friend and colleague Mr Damstra from the Refugee Appeal Board for discussing the functions of the RAB under my heading failure to implement – It is however a fact that Mr Damstra is struggling to give me a judgment for a matter that he heard in September 2005. Despite this the Bill has extended the work we are now expecting him to do. Will all appeals necessarily be oral hearings? What does it mean for an appeal to be “determined”? May written submissions be made? etc -You have my sympathies. I am going to leave it to my legal partners as well as Mr Damstra to discuss the functions of the RAA – The question of course is will it lead to greater efficiency or “stream-lining of the process.”  

Unlawful arrests and deportations -Reconciling the Immigration Act with The Refugees Act

Something for the Portfolio Committee to keep in mind - While both the Refugees Act as well as the Immigration Act deals with the Migration of foreigners into South Africa they do so with different aims. The Immigration Act seeks to regulate and control immigration into South Africa whilst the Refugees Act seeks to protect the Human rights of those in need of the protection of the South African Government.

S49 of the Immigration Act criminalizes the illegal presence of migrants in the country – many arrests are made in terms of this section leading to eventual deportation. However at the same time the non-penalisation for the illegal entry of an asylum-seeker is a well-known concept of refugee law. It was anticipated by the Drafters of the 195 UN Refugee Convention at article 31 and it is also reflected in the Refugees Act at s21(4). The Refugees Act anticipates that judicial proceedings can be instituted against a foreigner for illegal entry BUT s21(4) of the Act is clear – in that NO judicial proceedings may be instituted against an asylum seeker for illegal entry. However, in practice, judicial proceedings are commonly instituted in terms of s49 of the Immigration Act [– No one may enter the country illegally-], despite the fact that the person entered the country for the purpose of seeking asylum, but has not been able to access the system due to the systemic delays at the Refugee Reception Offices – although he or she has on numerous occasions attending at the RRO’s for that purpose.

Perhaps the Refugees Act should speak directly to the Immigration act and it should state that: “Notwithstanding , s49 of the Immigration Act or any other law to the contrary, no proceedings may be instituted or continued against any person in respect of his or her unlawful entry or presence into the Republic.”

The number of arrests of undocumented asylum seekers and the number of deportations of undocumented asylum seekers is worrisome to say the least and of course a clear violation of International human rights law/ no return to a country where you will be persecuted. Once again South Africa – a country with some of the best Human Rights legislation in the world is ranked poorly when it comes to the treatment of migrants. Perhaps, just perhaps if we can better reconcile the Refugees Act with The Immigration Act we will not have that many unnecessary arrests or costly deportations.  In this regard, the Immigration Act should also refer to the Refugees Act, in that it should be interpreted with due regard to refugee law principles.

5. Xenophobia – Immigration Act and Refugees Act -

Not only does the government have a poor record when it comes to the treatment of foreigners – sadly for us, so does the South African Community. Yet our law is not completely silent on Xenophobia – s2 of the Immigration Act states clearly that the Department shall pursue the following objectives – and at  subsection (e) Preventing and deterring Xenophobia, within the department, any sphere of government or organ of state and at a community level.

Xenophobia is taking place at all three levels -  There are many allegations made aimed at DHA staff particularly at the reception offices – Is it necessary for us to have a similar section in the Refugees Act or is it enough that Immigration Act refers to the prevention and deterring of xenophobia at a government level?

As practitioners it often comes to our attention that the police in particular are inexperienced when it comes to providing assistance to refugees and asylum seekers, this beside the abuse of refugees by the police.

Police don’t have the knowledge required - let me engage you some examples that as a refugee law practitioner repeatedly come to my attention. When a refugee is a victim of a crime, rather than a proper investigation being conducted or a charge being laid, the police either tell the refugee that they cannot be assisted or at best, assist them in swearing an affidavit. At worse, police have also been the perpetrators of crimes against refugees, either by exploiting refugees or neglectfully turning a blind eye when refugees are the targets of criminal activity. The clear right of refugees to safety and security, as contemplated in the Constitution, is one that the Police need to take seriously. Perhaps the DHA should do what the Department of Labour did when they introduced the LRA. They trained police regarding the rights of workers engaging in a legal strike or pickets.

Mr Chauke, Xenophobia is really the broadest issue and it is not referred to in the Refugees Act by that name but it is my understanding that an anti-xenophobia sentiment is intrinsic to the Refugees Act. Why? Because the Act was enacted to protect refugees and many rights are referred to in the Refugees Act, some that have now been extended to asylum seekers and once again I am leaving it to my colleagues to expand on the rights of refugees and asylum seekers as stated in the Bill.

However, in conclusion, Mr Chauke and fellow colleagues, I would like to highlight just one such right that does not tolerate xenophobia – the right to dignity –

Let the DHA officials treat refugees with dignity, let all government departments who interact with refugees treat them with dignity and let us as South Africans treat all refugees with dignity – an idealistic Fatima Khan from The UCT LAW thinks we can do it. Let us at least try.

Thank you all.