1.
INTRODUCTION
1.1
The Legal Resources Centre is a public interest law
clinic. It provides legal services for
vulnerable and marginalized communities in South Africa. It is making this submission on behalf of
asylum seekers and refugees who are amongst the most vulnerable and
marginalised groups in this country. The
LRC has acted for and represented asylum seekers and refugees since 1996.
1.2
The call by the Portfolio Committee for public comment on the
Refugees Amendment Bill (No. 11 of 2008) which was published in the Government
Gazette on 4 March 2008 is welcome.
1.3
The fact that comments are due for submission by 20 March
2008 allows a very short time, considering that the proposed amendments are far
reaching and are by no means of a purely technical nature
2.
COMMENTS
ON THE BILL
2.1
Section 1(ix): The extension of the definition of “spouse” is
to be welcomed.
2.2
Section 1: The removal of the concept of a “manifestly
unfounded”, and replacement with the definition of “unfounded application” is
to be welcomed.
2.3
New section 1A: This is the old section 6. However it is not
clear why “any other relevant convention or international agreement to which
the Republic is or becomes a party” has been omitted. The result would be to
provide less protection to refugees and asylum seekers.
2.4
New section 1A(e): It is unclear why this was inserted as
there are clearly many pieces of domestic legislation that have relevance to
the management of refugees and the singling out of the Immigration Act is thus
confusing. Is there any intention to indicate that the Immigration Act takes
precedence over other legislation and the Refugees Act itself in the case of a
conflict? Unless there is a particular reason for its inclusion – which should
be clearly articulated - we would propose that it be deleted so as to avoid
confusion.
2.5
Amendment of section 3: We welcome the other amendments to
this section. We suggest that a further
category be inserted after “political opinion” namely “adherence to or refusal
to adhere to local custom.”
2.6
Amendment of section 4(1) constitutes a significant and
undesirable change. By defining the person whose “reason to believe” is
relevant, the amendment may have the effect of taking the decision away from
the courts and placing it exclusively in the (subjective) hands of an
administrative decision maker (whose decision would only be subject to review
on the grounds of gross irregularity).
2.7
Amendment of section
4(1)(b): While this seems to be an important clarification, there will be scope
for dispute over what is a non-political crime (which is not defined).
2.8
The proposed amendments to Chapter 2 of the Act and the
addition of sections 8A – 8J have a number of implications. In terms of the
original Act, the Standing Committee for Refugee Affairs was to have functioned
“without any bias” and had to “be independent”. In Clause 10 of the Bill, the
removal of such a body from staffing decisions in favour of the Director
General is of concern with regard to the previous oversight role it was to have
played relating to: (1) ensuring that officials received the training necessary
for them to perform their functions; (2) regulating and supervising the work of
the Refugee Reception Offices; and (3) liaising with representations of the
UNHCR or any nongovernmental organisation.
2.9
While the Bill seeks to create a “Refugee Appeals Authority”,
such authority also does not have these powers. In addition, whereas the
Standing Committee had the powers to “formulate and
implement procedures for the granting of asylum” this power is not possessed by
the new body and such procedures are therefore not subject to any independent
scrutiny – including that of the legislature.
2.10
In addition, in Clause 11, the proposed section 8C provides
that the Chairperson of the Refugee Appeals Authority can determine the number
of members who will hear any appeal (8C(2)) rather than including the basis for
such decisions as part of the procedure which the Authority as a whole will
determine as provided for in 8C(3) and which
have to be published in the Government Gazette (8C(4)). Such individual
unfettered discretion for the Chairperson is neither necessary nor advisable
and should be provided for as part of the procedure.
2.11
Some other concerns:
2.11.1
Section 8E(f): There needs to be clarity about what is meant
by a “political office bearer”?
2.11.2
Section 8G needs to refer back to Section 8E in order to
clarify whether the same kinds of limitations apply equally to the identity of
members of the authority and to co-opted members or not.
2.12
Insertion of section 21A: this section covers similar ground
to the previous section 32. Although the changes are understandable in the
light of recent developments in legislation affecting children and the mentally
ill, it would help to clarify the procedure after the asylum seeker permit
has been granted. Stakeholders in relation to the rights of children (e.g. the
centre for child law) and the mentally ill should be actively engaged on this
clause to see whether it complies with national and international best
practice.
2.13
Insertion of section 21B: Are polygamous / polyandrous
marriages recognised? Can more than one spouse be recognised under this
section?
2.14
Insertion of Section 21B(2) – this is an unenforceable and
unreasonable requirement which will have the effect of overruling the existing
Court Order that an asylum seeker or refugee who moves from one centre to
another may process his or her status at the asylum seeker’s new address.
2.15
The insertion of 21B(4) – the two-year provision is unfair
and arbitrary.
2.16
Amendment of section 22(1): The replacement of the Standing
Committee (a semi-independent body) with the Director General (i.e. his/her
delegees) suggests an intention to introduce greater control by the Department
over policies and conditions imposed in relation to asylum seeker permits. This
is undesirable.
2.17
The proposed amendments of section 22(4): The requirement of
biometric testing (as defined in Clause 1 of the Amendment Bill) raises
concerns that emerge from the exceptionally large scale
of intended deployment and from the need to protect the collected data from
abuse. If the biometric approach is insisted upon, more detail in this regard is
essential. The fact that no specific provisions are made for the safekeeping of
such information is worrying. The requirement that such testing (including DNA
testing) be undertaken in respect of spouses and dependants creates a good deal
of hardship and it needs to be clear what provisions have been made to ensure
that the taking of biometric samples can be done cheaply, efficiently and quickly.
The
admirable provisions of Section 24(2)(a) are not meaningful unless the
Department provides better training for Refugee Status Determination Officers
and properly trained independent interpreters.
2.18
The proposed substitution of Section 24(4)(b) with “inform
the applicant of his or her right to appeal in terms of section 26” is
confusing as section 26 is repealed in terms of Clause 17 of the Amendment
Bill. This proposal is also as a result of the cancellation of the automatic
review by the Standing Committee, which is dealt with below.
2.19
Insertion of section 24(5): see commentary in relation to the
repeal of sections 25 and 26 below.
2.20
The proposed addition of Section 24(4)(6) deeming an
application to be abandoned if the asylum seeker has not renewed his or her
permit within 90 days is problematic in the context of the system as currently
administered by the Department where such renewal can take far longer to be
dealt with. It is suggested that at the least this be changed to read: “An
application may be deemed to be abandoned if the
asylum seeker has not attempted to renew his or her asylum seeker permit
within 90 days after it has expired:” (It may be better simply to treat failure
to do so as an offence punishable as such). Furthermore, the proviso to this
section ("Provided that the asylum seeker advances valid reasons for the
non-renewal of the asylum seeker permit.”) requires further language stating
what will happen if the proviso applies (i.e. if valid reasons are advanced,
what may happen) Also: to whom must the reasons be provided and what will the
powers of that person be?
2.21
Repeal of section 25: The cancellation of the automatic
review would seem to be a retrogressive step. Although efficiency is clearly a
concern here, it would appear to relate to an underlying desire to decrease the
opportunities for asylum seekers to have their circumstances considered.
Suggest that instead of making these changes, the relevant authorities should
be appropriately capacitated to perform their functions in an efficient way. It
is not acceptable for a system that has been criticised for its inefficiency
(see Tafira case) to simply be jettisoned. This indicates a desire to
sweep a problem under the carpet, rather than deal with it constructively.
2.22
Replacement of section 27:
2.22.1
Section 27(b): It is unclear why it is proposed that the
“right to remain” that in the current section 27(b) be removed.
2.22.2
Section 27(c): As with
21(1) the replacement of the Standing Committee (a semi-independent body) with
the Director General (i.e. his/her delegees) suggests an intention to introduce
greater control by the Department over policies and conditions imposed in
relation to asylum seeker permits. This is undesirable.
2.22.3
Why are the protections of the current section 27(g) to be
replaced? If the answer is because the rights contained in the new section
27(b) cover these entitlements, then section 27(f) would also not need to been
retained. The retention of the right in the proposed section 27(f), but not
those in the current section 27(g) strongly suggest that the rights currently
in section 27(g) are to be curtailed in some way. This is totally unacceptable,
both in terms of the Bill of Rights, but also in relation to international law
obligations.
2.23
Insertion of section 27A: Sub-sections 27(A)(a) and (b) are
to be welcomed. However, the value of subsections 27A(c) and (d) are not clear
as they simply restate the provisions of the Bill of Rights or the law as it
stands and therefore appear to be unnecessary.
2.24
Amendment of section 29(1): It is preferable that a review of
detention should be undertaken by the High Courts. This policy decision, should, therefore, be
very carefully considered in the light of the very patchy and sometimes significantly
worrying conduct of some magistrates.
2.25
Amendment of section 29(2): This amendment is to be welcomed.
2.26
Amendment of section 30: Apart from the concerns about DNA
testing discussed above, this amendment is probably uncontroversial. Given the present delays in complying with
requests for refugee ID documents, implementation of this provision in a
meaningful way will require considerable additional resources.
2.27
Deletion of sections 31 and 32: This is now dealt with
elsewhere, though care should be taken to ensure that the requirements laid down
for travel documents issued to refugees are not made any stricter than they
currently are.
2.28
Deletion of section 33: This is now dealt with in section 21A
(as to which, see above).
2.29
Amendment of section 34 and addition of section 34A: these
changes appear to be largely uncontroversial, although the obligation on the
Department to inform refugees and asylum seekers of these requirements should
be spelt out and special provision should be made in regulations to ensure that
notification of a change of address is made is unproblematic as possible.
2.30
Amendment of section 36: Replacement of the determination by
the standing committee with a determination by the Director-General (even with
a right of appeal) gives rise to similar concerns to those raised in respect of
the proposed amendments to section 22(1) and section 27(c) discussed above.
2.31
Amendment of section 38: These changes are required by
replacement of the standing committee with the appeals authority and the
removal of the concept of a manifestly unfounded application, which have both
been dealt with above.
3.
CONCLUSION,
WITH REFERENCE TO THE EXPLANATORY MEMORANDUM
3.1
It is a cynical misrepresentation to suggest that the “main
objective” of the Amendment Act is to substitute definitions (para 1.1). The
changes are not merely definitional, and in fact primarily relate to two
substantive changes:
3.1.1
The decrease in judicial oversight over the process; and
3.1.2
The increase in control by the Director-General and his or
her appointees. (this is particularly disturbing in the light of the Ruyobeza
case where the Court was at pains to promote the independence of the Standing
Committee)
3.2
For an Act to be amended so as to bring it into line with
“departmental and governmental policies” (para 1.2), rather than the other way
around does not appear to be the appropriate way to deal with issues.
3.3
The foregrounding of the amendments in respect of children
and the mentally ill (para 1.4), while nevertheless welcome, is somewhat
puzzling as these appear to be very minor amendments to provisions that were
already contained in the Act.
3.4
It is surprising, and indeed incorrect, to suggest that there
are no constitutional implications (para 3). Issues around healthcare and
access to social services are of particular relevance.
3.5
It is noteworthy that the explanatory memorandum itself
suggests that the new institutional arrangements will have financial and
capacity implications (para 4). This is particularly concerning in the light of
the outcome of various recent instances of litigation (e.g. the Tafira
case), in which it was found that asylum and refugee system is already
unmanageably overburdened. Simply replacing non-functioning institutions with
new ones is no guarantee that the structural problems will disappear.