Advancing Refugee Protection in South Africa 9780857450272

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ADVANCING REFUGEE PROTECTION IN SOUTH AFRICA

Human Rights in Context General Editors: Marguerite Garling, human rights consultant and Guglielmo Verdirame, Lecturer in Law, University of Cambridge Research on human rights, or social and political issues closely related to human rights, is nowadays carried out in many academic departments, from law to anthropology, from sociology to philosophy. Yet, there is surprisingly little communication amongst scholars working in these different disciplines, and research that takes more than one perspective into account is seldom encouraged. This new series aims to bridge the divide between the social sciences and the law in human rights scholarship. Books published in this series will be based on original empirical investigations, innovative theoretical analyses or multidisciplinary research. They will be of interest to all those scholars who seek an audience beyond the confines of their academic subjects. Volume 1 BETWEEN BOMBS AND GOOD INTENTIONS The Red Cross and the Italo-Ethiopian War, 1935–1936 Rainer Baudendistel Volume 2 ADVANCING REFUGEE PROTECTION IN SOUTH AFRICA Edited by Jeff Handmaker, Lee Anne de la Hunt and Jonathan Klaaren Volume 3 BEYOND PRISON Fighting to Reform Prison Systems around the World Ahmed Othmani

ADVANCING REFUGEE PROTECTION IN SOUTH AFRICA

Edited by Jeff Handmaker, Lee Anne de la Hunt and Jonathan Klaaren

Handmaker_final_Q6:Handmaker_SB1

10/25/10

3:58 PM

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First published in 2008 by Berghahn Books www.berghahnbooks.com

© 2008, 2011 Jeff Handmaker, Lee Anne de la Hunt and Jonathan Klaaren First paperback edition published in 2011

All rights reserved. Except for the quotation of short passages for the purposes of criticism and review, no part of this book may be reproduced in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage and retrieval system now known or to be invented, without written permission of the publisher. Library of Congress Cataloging-in-Publication Data Advancing refugee protection in South Africa / edited by Jeff Handmaker, Lee Anne de la Hunt and Jonathan Klaaren. p. cm. -- (Human rights in context ; v. 2) Includes bibliographical references and index. ISBN 978-1-84545-109-7 (hbk) -- 978-1-84545-249-0 (pbk) 1. Refugees--Government policy--South Africa. 2. Refugees--Legal status, laws, etc.--South Africa. 3. Human rights. I. Handmaker, Jeff. II. De la Hunt, Lee Anne. III. Klaaren, Jonathan. HV640.4.S65A38 2008 362.87'720968--dc22 2008008512

British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library

Printed in the United States on acid-free paper

ISBN: 978-1-84545-109-7 (hardback) ISBN: 978-1-84545-249-0 (paperback)

CONTENTS

 Acknowledgements Introduction Jeff Handmaker, Lee Anne de la Hunt and Jonathan Klaaren Part I The Development of Refugee Policy in South Africa 1. International and National Responses to the Challenges of Mass Forced Displacement Guy S. Goodwin-Gill 2.

3.

4.

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Regional Integration, Protection and Migration Policy Challenges in Southern Africa Loren B. Landau

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Talking a New Talk: A Legislative History of the Refugees Act 130 of 1998 Jonathan Klaaren, Jeff Handmaker and Lee Anne de la Hunt

47

Refugee Status Determination Procedures in South African Law Jonathan Klaaren and Chris Sprigman

61

Part II The Implementation of Refugee Policy in South Africa 5. Due Process in Asylum Determination in South Africa from a Practitioner’s Perspective: Difficulties Encountered in the Interpretation, Application and Administration of the Refugees Act Lee Anne de la Hunt and William Kerfoot

89

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6.

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Advancing Refugee Protection in South Africa

Starting with a Clean Slate? Efforts to Deal with Asylum Application Backlogs in South Africa Jeff Handmaker

117

Solucão Durável? Implementing a Durable Solution for Angolan Refugees in South Africa Jeff Handmaker and Dosso Ndessomin

136

Part III Special Issues on Refugee Policy in South Africa 8. Detaining Asylum-seekers: Perspectives on Proposed Reception Centres for Asylum-seekers in South Africa Frankie Jenkins and Lee Anne de la Hunt 9.

10.

11.

Protecting the Most Vulnerable: Using the Existing Policy Framework to Strengthen Protection for Refugee Children Victoria Mayer, Jacob van Garderen, Jeff Handmaker and Lee Anne de la Hunt

186

Protecting the Invisible: The Status of Women Refugees in Southern Africa Nahla Valji, Lee Anne de la Hunt and Helen Moffett

214

Realising Rights: The Development of Health and Welfare Policies for Asylum-seekers and Refugees in South Africa Florencia Belvedere, Piers Pigou and Jeff Handmaker

242

Conclusion Jonathan Klaaren and Jeff Handmaker Appendices 1. Refugees Act 130 of 1998 2.

167

Regulations to the South African Refugees Act, Government Notice Department of Home Affairs No. R 366, 6 April 2000

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291 304

Bibliography

317

Notes on Contributors

329

Index

331

ACKNOWLEDGEMENTS

 Producing any edited book involves multiple contributions. It was a tremendous pleasure and privilege to collaborate with the many individuals and organisations who generously gave their time and resources towards this book. To those authors who contributed in whole or in part to chapters to this collection, Florencia Belvedere, Guy Goodwin-Gill, Frankie Jenkins, William Kerfoot, Loren Landau, Victoria Mayer, Helen Moffett, Dosso Ndessomin, Piers Pigou, Chris Sprigman and Nahla Valji and Jacob van Garderen we extend our first and most heartfelt thanks, not only for what they have researched and written, but for their patience and understanding in sticking with what turned out to be a long-term project. Many colleagues gave us input and comments. While we have undoubtedly neglected to mention some, during the development and updating of this collection, feedback came from many different individuals, including: Joyce Tlou, Bonaventure Rutinwa, Fritz Gaerdes, Shani Winterstein, James Hathaway, Sheldon Magardie, Ghadija Vallie, Jenny Parsley, Abeda Bhamjee, Emma Algottson and Mike Gallagher. Additional final editing of this extensive collection was done by Ruma Mandal, Helen Moffett and Kara Wong. Lawyers for Human Rights in South Africa, and in particular the Refugee and Migrant Rights Project, obtained the resources and provided space to initially get this project off the ground, including the organising of a key conference at the African Window in Tshwane (Pretoria) in March 1998. This conference was funded by the Netherlands institute for Southern Africa (NiZA) in Amsterdam on the recommendation of Adri Nieuwhof, then director of the Dutch Refugee Council in Delft. Many conferences, seminars and workshops also generated material for this collection, including by the National Consortium for Refugee Affairs, South African Human Rights Commission, Department of Home Affairs, Parliamentary Portfolio

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Committee on Home Affairs, Southern African Migration Programme of the Institute for Democracy in South Africa (IDASA) and Queens University in Canada, University of Cape Town (UCT) Legal Aid Clinic and University of Witwatersrand (Wits) Forced Migration Studies Programme. The National Consortium for Refugee Affairs, with funds from the Foundation for Human Rights in South Africa, commissioned a number of research projects that made extensive contributions to Chapter 5 and all the chapters in Part III of this collection. The Studie- en Informatiecentrum Mensenrechten (SIM) in the Faculty of Law at Utrecht University, the School of Law as well as the Forced Migration Studies Programme in the Graduate School of Humanities and Social Sciences at the University of the Witwatersrand, the UCT Legal Aid Clinic in the Faculty of Law at the University of Cape Town and Institute of Social Studies in The Hague all made institutional contributions in realising this collection. Funding for the final completion of the manuscript was received from the National Scientific Foundation (NWO) of the Netherlands and from the University Research Committee and the Research Committee of the Faculty of Commerce Law, and Management of the University of the Witwatersrand for its research project ‘An Institutional Analysis of South Africa’s Refugee Immigration and Citizenship Regime’. Finally, Guglielmo Verdirame, lecturer in law at Cambridge University and series editor of Human Rights in Context, as well as Marion Berghahn of Berghahn Books, should also be recognised for sticking by us during the last few years of often painful updating and editing. Without the contributions of all these people and institutions, this book would most definitely never have seen the light of day. To all of them we extend our gratitude. Obviously, any errors or omissions remain the responsibility of the authors and co-editors and the views and opinions stated in this collection are those of individual authors and ought not to be ascribed to any particular institution. Jeff Handmaker, Lee Anne de la Hunt and Jonathan Klaaren 2007

INTRODUCTION Jeff Handmaker, Lee Anne de la Hunt and Jonathan Klaaren

 New Perspectives In one sense, almost any perspective on refugee protection in South Africa is bound to be new.1 The protection of refugees is still a relatively new experience to South Africa. Indeed, it is only since September 1993 that South Africa began formally to deal with refugees who were not its own citizens forced into exile by the policies of apartheid. The country’s first Refugees Act came into force only in April 2000. Several months before the first non-racial elections, representatives of the government of South Africa and the United Nations High Commissioner for Refugees signed a Basic Agreement.2 This followed on the United Nations High Commissioner for Refugees (UNHCR) gaining of a formal legal mandate in 1991 to operate within South Africa. The purpose of this Basic Agreement was to facilitate a durable solution, through temporary recognition, for an estimated 300,000 Mozambicans who fled the civil war in their country of origin and continued to reside in South Africa, primarily in former ‘homelands’. The agreement provided first for a UNHCR-led voluntary repatriation programme3 and secondly for integration in the form of a (cabinet-approved) recommendation that those former refugees from Mozambique who did not take advantage of repatriation have their status regularised. Although a cessation clause has been in place in respect of Mozambique since December 1996, the status regularisation element of this ‘durable solution’ was implemented only towards the end of 1999, in somewhat controversial circumstances.4

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Advancing Refugee Protection in South Africa

This initial refugee policy only benefited Mozambicans, just a few months after South Africa’s 1994 elections. A Passport Control Instruction5 was then issued by the South African Department of Home Affairs, providing the broad guidelines by which the Department would receive and process applications for political asylum from applicants from any country. This administrative regime has now been replaced by comprehensive refugee legislation, the Refugees Act 130 of 1998, which came into force by way of presidential proclamation6 on 1 April 2000 with the issuing of regulations.7 In this sense, as detailed more fully below, the South African refugee protection experience has barely spanned seven years’ time, and is at least as new as the South African experience of democracy. Nonetheless, perspectives on refugee protection in South Africa can claim to be new in a sense beyond being freshly minted. South Africa offers several variations on themes of refugee protection replicated elsewhere in the world. For one, the recent establishment of constitutional democracy in South Africa has been accompanied by an increasing emphasis on international human rights. Some of the essays below ask whether this emphasis on international human rights has influenced refugee protection in South Africa, and, if so, how. Moreover, South Africa may be the site of one of the first interactions between an institutionally established judicial branch and the legal provisions of the Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa: its provisions formed part of a legal challenge in 1998.8 Perhaps most importantly, refugee protection in South Africa shows close linkages to policies of international migration as well as to apartheid. Prior to 1994, South Africa was infamous throughout the world for its racialised policies and seemingly limitless measures of social control. Despite pressure from the international community, the previous government showed itself to be stubbornly resistant to change, reinforcing its control through a police force that was ‘always in the front line in the enforcement of apartheid … [and] ensured that black South Africans were kept in their places in segregated and inferior institutions’.9 This unforgiving attitude of the apartheid government automatically extended to (black) foreigners, including refugees from the war in Mozambique.10 Despite these blanket restrictions, many refugees braved a collection of horrors, including dangerous journeys through the Kruger National Park (which borders both countries) and a fence that once generated a lethal electric voltage in their desperation to avoid border control officials and reach relative safety in neighbouring South Africa. South Africa has seen dramatic political changes in recent years, and Mozambique too has at last achieved some degree of political stability.11 During this time, migration to South Africa from Mozambique and other countries has continued and has perhaps even increased. The true numbers of migrants entering South Africa in recent years continue to be heavily contested, however. Figures that have been cited range from conservative

Introduction

3

estimates of several hundred thousand, to heavily exaggerated numbers ranging into the ‘millions’, supported by ‘pseudo-scientific’ data.12 Whatever the numbers, it is clear that the nature of most regional migration is ‘circular’, with migrants expressing little wish to remain permanently in South Africa.13 Nevertheless, popular perceptions of a ‘flood’ of foreigners, reinforced by a sometimes overtly xenophobic media,14 the lack of institutional capacity to make timely, reliable determinations on refugee status, and numerous other factors have presented considerable challenges to the South African government’s stated desire to reformulate migration policy. Refugee protection policy has been caught up in these larger and more powerful policy currents. The 1994 Government of National Unity inherited a framework of immigration legislation, consolidated in the Aliens Control Act 96 of 1991, that had been conceived in racist circumstances and used to further apartheid and its exclusionary policies. Minor amendments to the Aliens Control Act in 1995 removed several obvious unconstitutional features of the Act, such as the prohibition or ‘ouster’ of judicial review, and added a couple of rightsbased protections. Otherwise, the Aliens Control Act was left intact. Apart from the development and passage of the Refugees Act in 1998, the migration policy-making process since 1995 has moved at a glacial pace. To be fair, South Africa shares the difficulty of legislating on this topic with a number of other countries, particularly in the current global climate of heightened security. Immigration issues are, even at the best of times, emotive and difficult ones around which to form consensus. Further, immigration issues often implicate fundamental interests in many different parts of government as well as the private sector. These factors make immigration legislation a difficult proposition under any circumstances. But, perhaps especially when the legislation is under the charge of a Minister of a minority political party, the Inkatha Freedom Party (IFP), in coalition with a majority party the African National Conference (ANC), immigration legislation can easily get stalled. Every step for the Immigration Bill from Green Paper to White Paper has been full of confusion and empty of consensus or clear understanding. On 29 April 2004, the era of political deadlock was ended when Minister Buthelezi stepped down and the ANC appointed Mrs Nosiviwe Mapisa-Nqakula as the new Minister of Home Affairs. In 2001, President Mbeki pinpointed migration policy for real progress at the beginning of the year – in his opening speech he stated: ‘Immigration laws and procedures will be reviewed urgently to enable us to attract skills into our country.’ Nonetheless, it became a constitutional issue that forced Parliament’s attention to focus on the policy area of immigration. In June 2000, the Constitutional Court declared a part of the Aliens Control Act unconstitutional for a lack of precise policy to guide the discretion of officials in limiting fundamental rights, such as the right to dignity of spouses to live together in the same country. The order in the Dawood v. Minister of

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Advancing Refugee Protection in South Africa

Home Affairs15 case gave Parliament 24 months to mend the problem. That deadline, and another one imposed by a similar case, forced the Parliament to act by early June 2002, passing the Immigration Act 13 of 2002. After the significant 2004 election, the Immigration Amendment Act 19 of 2004 amended, indeed, largely replaced, this legislation. Even a preliminary assessment of the Immigration Act is beyond the scope of this collection of essays. Our conclusion briefly canvasses its effect on the Refugees Act only. The relevant point for the present purposes is that the first significant development in South African post-apartheid migration policy belongs not to the issue of immigration, but to that of refugee protection. It is this development that the present collection both chronicles and analyses.

This Collection In part due to the passage of the Immigration Act 13 of 2002, this collection of articles comes at a time of heightened interest, new directions and critical expansion of regional and international dialogue on refugee protection issues in South Africa. Of course, neither a conference (or a set of conferences)16 nor this collection of essays, can claim to represent all relevant issues. Nonetheless, the essays in this collection illustrate significant issues during this critical first phase of refugee protection and policy development and record a significant turning point in the national discourse in South Africa. As we illustrate in Chapter 1 of this collection, this is a development in which locally based and international academics and practitioners have played an active role. The local continually interacts with the global in this discourse. The material of this collection overlaps with an intense period of policy development. This period of policy development has benefited both from considerable involvement of civil society organisations and from an emerging body of jurisprudence from the courts. The stage has been set for a refugee protection regime that may be seen as distinctively African. In recent years, interpretations of international treaty obligations by South Africa’s courts have been made in the context of a vital (albeit young) constitutional democracy, articulated by an independent judiciary with a strong culture of constitutionalism.17 Moreover, South Africa offers an interesting case of refugee protection policy put into place by a government staffed in large part by former refugees. Indeed, many senior government figures formerly sought refuge in the same countries of origin of the presentday refugees in South Africa. Such persons were expected to bring a new understanding of old issues in refugee protection, such as refugee integration and regional dynamics.18 These facets add up to the possibility of refugee protection in South Africa being somewhat different from prior refugee protection regimes.

Introduction

5

It is the aim of this collection to present perspectives on refugee protection that reflect on its newness in South Africa, and on the substantial degree of public participation in the policy development process. The primary emphasis is on presentation and analysis of the South African experience. This is achieved through a variety of methods including those of experience, advocacy and comparison. Frequently, that experience has offered insights that have travelled across borders and have presented challenges to established notions of community and democracy. It would be appropriate for a collection about refugee protection in South Africa to aspire to the same kind of challenges. Many of the issues raised through the various processes of consultation and feedback (and some of the material presented at these workshops) are discussed in this volume. These essays thus represent the shifts and concerns of a tangible process of establishing policies, legislation and practice concerning refugees, in an ongoing effort to advance refugee protection in South Africa.

Part I: The Development of Refugee Policy in South Africa Part I of this collection was inspired by a conference organised in March 1998 in Pretoria by the South African non-governmental organization (NGO) Lawyers for Human Rights (LHR) and partly documented in Perspectives on Refugee Protection in South Africa, also produced by the present co-editors.19 However, as we discuss more comprehensively in this collection, events took on great momentum and we felt obliged to record and comment on these developments which led to the passing of the Refugees Act 1998, later brought into force in April 2000 with corresponding Regulations. Both of these documents are included as appendices to this collection. Developing the context in which these developments took place, in Chapter 1, Guy Goodwin-Gill discusses recent debates and policy developments that have taken place within an internationalist perspective. As reflected in our earlier Perspectives collection, many of these developments have featured extensively in South Africa’s own debates. Drawing on his considerable experience as both a practitioner and an academic, Goodwin-Gill examines, first, certain developments relating to refugee movements at the international level (particularly in the Security Council); and secondly, the question of implementation at the national level. In Chapter 2, Loren Landau deepens this context by outlining regional and migratory policy challenges faced in the construction of a migration/refugees discourse in South Africa. In particular, he points to two factors that have shaped this discourse, namely that migration is a perennial and indelible part of the Southern African political economy and that migration policy can no longer be formulated effectively only by national governments.

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In Chapter 3, we outline the legislative history that led to the passing of the Refugees Act 1998. In particular, we highlight the complex roles of civil society in contributing to various processes that led to passage of the Act. Jonathan Klaaren and Chris Sprigman then present historical overview of South Africa’s attempts to grapple with its refugee problems in Chapter 4. They critique the procedures currently in operation and propose an institutional model of refugee determination procedures that is hearingsbased, separates fact-finding and decision-making aspects, and allows applicants to exercise their constitutional right to legal representation. This paper was influential in persuading members of the Refugees White Paper Task Team in May 1998 to support such an institutional model of refugee status determination. The chapter has been updated to consider their model in light of the Refugees Act and Regulations.

Part II: The Implementation of Refugee Policy in South Africa Part II of this collection focuses on challenges faced in the early implementation of the Refugees Act 1998 and corresponding Regulations, including additional challenges faced during the period of transition from the previous to the new policy regime. Part One provides the background to Lee Anne de la Hunt and publicinterest lawyer William Kerfoot’s analysis in Chapter 5, of a number of practical problems and concerns associated with the implementation of the asylum procedure. It highlights the gaps between constitutional standards and Department of Home Affairs’ practices, based on a number of court challenges to the refusal by refugee affairs officials to consistently follow just administrative procedures. These cases (many of them groundbreaking) have all sought to bring the refugee determination procedure into closer compliance with international law and the provisions of South Africa’s constitution. The chapter then elaborates on specific difficulties faced in the implementation of the Refugees Act 1998 and its corresponding Regulations. In Chapter 6, Jeff Handmaker analyses a UNHCR-funded project to deal with a backlog of asylum applications and build departmental capacity in South Africa, a project implemented by the South African government in collaboration with the UNHCR and local NGOs. This chapter also addresses issues regarding the transition from the Aliens Control Act to the 1998 legislation. It also offers some tentative reflections on a second backlog project introduced by the Department of Home Affairs in 2006. Chapter 7 analyses another initiative designed to implement a durable solution for urban-based Angolan refugees in South Africa. Drawing partly on a 2003 demographic study of refugees in Johannesburg by the Universities of Witwatersrand and Tufts (Wits-Tufts), Jeff Handmaker and Dosso Ndessomin analyse the current treatment of refugees in South Africa’s urban centres and relate this to the prospects of repatriation to Angola, integration in South Africa and resettlement in third countries.

Introduction

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Part III: Special Issues on Refugee Policy in South Africa Part III of this collection addresses a variety of specific issues associated with refugee protection in South Africa. Each of the chapters in this part is based on research commissioned by the National Consortium for Refugee Affairs (NCRA) or UNHCR. This part of the collection thus provides an examination of the ongoing issues within the field of refugee protection in South Africa. Chapter 8 by Frankie Jenkins and Lee Anne de la Hunt discusses the issue of confining asylum-seekers in reception centres, in the context of recent proposals presented by the South African government and encompassed in a controversial recent bill to amend the Refugees Act. Victoria Mayer, Jeff Handmaker, Lee Anne de la Hunt and Jacob van Garderen continue in Chapter 9 with an essay focussing on refugee children. It addresses various aspects of policy relating to the reception of refugee children in South Africa, with a particular focus on unaccompanied minors. In Chapter 10, Nahla Valji, Lee Anne de la Hunt and Helen Moffett focus on the government’s policy relating to refugee women and propose gender guidelines for status determination officials. The chapter addresses relevant issues pertaining to assessing gender as a ground of persecution, cultural sensitivity, repatriation and detention. Finally, in Chapter 11, Florencia Belvedere, Piers Pigou and Jeff Handmaker discuss prospects for a health and welfare policy for refugees and asylum-seekers in South Africa, based on international and comparative policy guidelines and the corresponding socio-economic conditions of refugees in South Africa. The essay is based on a research report authored by CASE and commissioned by the UNHCR. We hope this collection will prove illuminating in how South Africa has confronted one of the biggest challenges in its nascent democracy. The process of developing migration and refugee policies has at times been hotly contested, though also a conscientiously debated field involving many different stakeholders. As South Africa continues to humbly share its experiences with the international community on how it extricated itself from a political regime bent on institutional discrimination, the results of this particular process of refugee policy reform may also be instructive to other countries grappling with similar issues.

Notes 1. See also J. Handmaker, L. De la Hunt, and J. Klaaren, eds, Perspectives on Refugee Protection in South Africa (Pretoria, 2001). 2. Basic Agreement Between the Government of the Republic of South Africa and the United Nations High Commissioner for Refugees Concerning the Presence, Role, Legal Status, Immunities and Privileges of the UNHCR and Its Personnel in the Republic of South Africa, February 1993.

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3. For further details, see Dolan, Report to Norwegian Refugee Council (Oslo, 1995); C. Dolan, ‘Aliens Aboard: Mozambicans in the. New South Africa’, Indicator SA 12, no. 3 (1995): 29; and K.B. Wilson with J. Nunes, ‘Repatriation to Mozambique’, in When Refugees Go Home: African Experiences, ed. T. Allen, and H. Morsink, (Geneva, 1994). 4. J. Handmaker, and J. Schneider, The Status ‘Regularisation’ Programme for Former Mozambican Refugees in South Africa’, Working Paper for the Wits Research Unit on Law and Administration (Johannesburg, 2002). 5. Passport Control Instruction No. 63 of 1994. A number of other instructions from the Department of Home Affairs followed. 6. Proclamation No R 19 of 2000, contained in Government Gazette 21061 of 3 April 2000. 7. Proclamation No R 22 of 2000, contained in Government Gazette 21075 of 7 April 2000. 8. Baramoto v Minister of Home Affairs 1998 (5) BCLR 562 (W). 9. G. Cawthra, Policing South Africa (Cape Town, 1993). 10. It is by now very well established that this war, described by a US State Department official as ‘one of the most brutal holocausts against ordinary human beings since World War II’, was part-sponsored by the South African government itself Footnote 31 in Human Rights Watch, ‘Prohibited Persons:’ Abuse of Undocumented Migrants, Asylum Seekers, and Refugees in South Africa (New York, 1998). 11. However, since the achievement of a Peace Accord between warring forces in 1992, Mozambique has been beset with a crippling economy and environmental disasters generating a ‘new generation’ of forced migrants, not least the devastating floods that displaced hundreds of thousands in 2000. 12. Previous studies that suggested such large numbers were comprehensively critiqued by J. Crush Covert Operations: Clandestine Migration, Temporary Work and Immigration Policy in South Africa, SAMP Policy Series, No. 1 (Cape Town, 1997). 13. J. Crush, ‘The Discourse and Dimensions of Irregularity in Post-Apartheid South Africa’, International Migration 37, no. 1 (1999): 128. 14. Despite great efforts on the part of, amongst others, the South African ‘Roll Back Xenophobia Campaign’ to address xenophobia in media reporting, there remain significant challenges. See A. Harber, ‘The Sun Bares its Rotten Teeth’, Moneyweb, 25 April 2006, http://www.moneyweb.co.za/economy/soapbox/265554.htm last checked 9 August 2006. 15. Dawood and another v Minister of Home Affairs and others 2000 (3) SA 936; Shalabi and another v Minister of Home Affairs and others (CC) 2000 (8); Thomas and another v Minister of Home Affairs and others BCLR 837 (CC). 16. We refer here to a conference organised by Lawyers for Human Rights in March 1998 and a follow-up workshop organised by the National Consortium for Refugee Affairs (NCRA) in May 1998 on the proposed Draft Refugees White Paper and ‘Refugee Bill’. Together, these meetings generated most of the material contained in a previous collection by the present co-editors (above, n. 1), as well as Chapters 3 and 4 of the current collection. The content of these workshops is discussed more thoroughly in Chapter 3 of this collection. 17. This is further reinforced by South Africa’s progressive constitution itself, which provides in section 39 that ‘When interpreting the Bill of Rights, a court, tribunal or forum … must consider international law.’ 18. Unfortunately, this is not always the case. See ‘Rights Groups Slam “Xenophobic Official”,’ Mail and Guardian, 5 to 11 November 1999. 19. Above, n. 1.

PART I THE DEVELOPMENT OF REFUGEE POLICY IN SOUTH AFRICA

1 INTERNATIONAL AND NATIONAL RESPONSES TO THE CHALLENGES OF MASS FORCED DISPLACEMENT Guy S. Goodwin-Gill

 Introduction People have been migrating in large numbers since time immemorial, for reasons of personal and family advancement, as elements in state plans to expand and develop and to avoid any number of disasters, natural and man-made. South Africa has had the full spectrum of the migration and displacement experience, moving from refugee-source to refugee-receiving country, and meeting all the complexity of mixed flows on the way. While refugee movements and situations have long attracted attention, at least in certain of their phases, migration in its ‘ordinary’ sense is only now beginning to feature on the international agenda,1 even if the principal focus is on the issues of concern to the developed world, such as irregular and clandestine migration and trafficking in people. Despite the international dimension, an international migration regime is still lacking. There is no multilateral convention and no truly international organisation with a comprehensive mandate, while state practice varies and a burgeoning individual rights dimension confronts traditional sovereign powers, actual or perceived, with distinctly uneven results. In theory, this contrasts with the regime governing the forcible displacement of refugees, although the similarities of experience and the challenges of response are very close. Consequently, it helps to look at the factors that bring the forcible movement of persons into the international

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Advancing Refugee Protection in South Africa

law domain, and to review state and institutional responsibilities and obligations, including the role of the United Nations and the impact of Security Council involvement on the application and development of international norms. With the background of international law and organisation in mind, the crucial role in the legal protection of refugees to be played by national legislation and national institutions can be better understood.

International Law and Movement between States Traditionally, it has been the juridically relevant fact of cross-border movement by non-citizens that establishes the bilateral legal relationship of rights and obligations between sending and receiving states. In this somewhat imperfect relationship, the receiving state remained free to decline a visa, to refuse admission, to admit for a limited period or purpose, or to terminate stay and to return the non-citizen to his or her country of nationality. That country in turn was obliged to receive back its nationals, or even to receive them for the first time, as did the United Kingdom on the expulsion of Asians with UK citizenship from Uganda. On the other hand, the sending state had standing, through the link of nationality, to protect its citizen abroad, and to insist that a certain standard of treatment – an international minimum standard – be observed in relation to the individual under its protection. Forced migration, however, upsets the norm. It raises a host of complex legal issues, including the right of individuals to treatment in accordance with fundamental human rights; the specific entitlements of refugees, for example, to seek asylum and not to be sent back to torture or to persecution; the rights of states with regard to territory and jurisdiction; the responsibilities of states to their own communities; the duties of states to other states; and the responsibilities of international organisations, such as that of the United Nations, to resolve humanitarian problems, and of the Office of the United Nations High Commissioner for Refugees (UNHCR) to provide international protection for refugees and to seek permanent solutions. Here, international law, broadly considered, provides tools for organisation and management, for solutions and protection. It lays down rules of conduct, and establishes institutional roles, in varying degrees of detail. International law also provides the framework of principle within which problems such as forced migration should be resolved – the sovereignty of states, the reserved domain of domestic jurisdiction, the prohibition of the use or threat of force otherwise than in self-defence or in the collective enforcement of international peace and security, the duty, inchoate perhaps, of states to cooperate, and the purposes and principles of the UN. International law also provides the human rights dimension for mass movements – the duty to protect against torture, to refrain from

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refoulement, to protect the family and the child, to ensure personal security, dignity and integrity, particularly for groups at risk. Even taking account of the various United Nations agencies having competence in the field of international movements,2 the regime is neither complete nor seamless. On the contrary, the plethora of agencies commonly results in competition for donor funds and influence. Thus, who will be lead agency, who will coordinate and who will be coordinated are issues of demarcation that seriously frustrate effective service delivery, whether of assistance, protection or solutions. Evaluations of UN operations in the Great Lakes, former Yugoslavia and Kosovo confirm how much remains to be done to bring about cooperation. The regime is also challenged, as it necessarily must be, by changing perceptions among the key actors. Here, the temporal context in which much of the ground rules were forged is instructive – fundamental principles of sovereignty and independence ensured that the system of protection, solutions and assistance would be essentially reactive. Thus, it speaks largely to rights and responsibilities that can only be triggered by the juridically relevant fact of cross-border movement or displacement. It is hardly surprising, therefore, that the refugee was defined, both in the 1950 UNHCR Statute and the 1951 Refugee Convention, by reference to the essential fact that he or she had crossed an international frontier and entered a state other than that of which he or she was a national. In the absence of this fact, UNHCR had no competence and states no duties. For forty-five years or so, migration in all its international dimensions, continued to be addressed within the framework of sovereign rights – the right of the state to restrict the exit of its citizens and control the admission of foreigners, and to deal or not to deal with the problem of internal displacement, however caused. Even when the refugee came to be recognised by international law, the state’s rights effectively remained paramount – the right to seek asylum, solemnly proclaimed in Article 14 of the 1948 Universal Declaration of Human Rights, was not included in the 1966 Covenants and has hardly developed outside. In addition, states were left with plenty of room for manoeuvre in the art of preventing arrivals of refugees and asylumseekers, without breaching the principle of non-refoulement. This essentially reactive regime has been changing, however, and states are no longer so ready to accept refugees as the unfortunate but necessary consequence of ideological struggle. The question of responsibility has entered the picture, particularly that of the country of origin, and not only in a confrontational context, but also as a potentially key element in providing solutions. Writing just over sixty years ago, Sir Robert Jennings posited liability on the repercussions which a refugee exodus has on the material interests of third states. In his view, conduct resulting in ‘the flooding of other States with refugee populations’ was illegal, ‘a fortiori where the refugees are compelled to enter the country of refuge in a destitute condition’.3 The

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bases for liability today are perceived to lie not so much in the doctrine of abuse of rights, as a doctrine operating exclusively between states, as Jennings then suggested, but in the breach of original obligations regarding human rights and fundamental freedoms, and in the principle of responsibility which derives from the fact of control over territory, a point clearly made by the International Court of Justice in its Advisory Opinion in the Namibia Case.4 Still, it is easy enough to prescribe a principle of responsibility for ‘creating’ refugees, but considerably harder to offer a more precise formulation of the underlying rights and duties, or to indicate how and where international institutional responsibilities may, or may not, be engaged – in short, to make it work. Legal theory remains imperfect, given the absence of clearly correlative rights in favour of a subject of international law competent to exercise protection, and the uncertain legal consequences that follow where breach of obligations leads to a refugee exodus.5 Whereas reasonably certain rules have developed that limit sovereign state powers of control over admission and removal, there has been no corresponding development in the reciprocal rights and obligations of states.

Enter the Security Council: The Newly Relevant Juridical Facts Refugee movements involve not only the obligations of receiving states, but may also transcend the individual in search of asylum or protection, and enter the realm of international peace and security. This in turn may trigger the competence and responsibility of the UN Security Council. In the last decade or so, the Security Council has been increasingly ready to take account of population displacement in formulating its response to a variety of (generally complex) humanitarian crises. While the Security Council’s role is normally related to conflict prevention and resolution, and to collective enforcement, looking at the organisation of Chapter VII of the UN Charter from the perspective of responsibilities, competences and measures can be instructive as to its other possibilities. Thus, the Security Council’s responsibility or duty is presented in Articles 39 and 40: it ‘shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken … to maintain or restore international peace and security’. Before making recommendations or deciding on further action, the Security Council may call on parties to comply with such provisional measures as it deems necessary or desirable, and it shall take account of failure to comply with them. The Security Council’s competence is described in Articles 41 and 42. Thus, it may decide what measures not involving the use of armed force are to be employed. Thereafter, should it consider such measures to be inadequate, it may take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security.

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Security Council action in the last ten years or so can be seen to have given ‘revised’ content to the idea of threat to international peace and security, to the notion of ‘measures not involving the use of force’, and to ‘measures involving the use of force’. It has also contributed to extending and clarifying, if that is the right word, the number and type of juridically relevant facts that states may employ, without necessarily involving the Security Council, to justify certain types of action in situations involving forced or mass migration. If cross-border movements of refugees trigger principles like protection and non-refoulement, or activate the institutional responsibilities of organisations such as the United Nations High Commissioner for Refugees, over the last decade or so other juridically relevant facts have clearly emerged in the practice of the United Nations. Internal and interstate conflict, genocide, massive violations of human rights and crimes against humanity have all attracted the attention of the Security Council and contributed to the formulation of a variety of resolutions, measures and actions under Chapter VII. Increasingly, too, the displacement of population itself is characterised as a threat to international peace and security, or as contributing to such a threat. In Resolution 688 (1991) on Iraq, for example, the Council did not proceed to Chapter VII action, but nevertheless expressed its grave concern at events that had led ‘to a massive flow of refugees towards and across international frontiers and to cross-border incursions, which threaten international peace and security in the region’. In Resolution 841 (1993) on Haiti, the Security Council recalled that it had earlier ‘noted with concern’ how humanitarian crises, including mass displacements, became or aggravated threats to international peace and security. In the particular circumstances, it also noted that the persistence of the situation in Haiti was contributing to a climate of fear of persecution and economic dislocation, which could increase the numbers seeking refuge in the region, and that ‘in these unique and exceptional circumstances’, its continuation threatened international peace and security in the region. In Resolution 819 (1993) on Bosnia and Herzegovina, the Council, acting under Chapter VII, condemned as unlawful any taking or acquisition of territory by threat or use of force, including through the practice of ‘ethnic cleansing’, as well as the forced evacuation of the civilian population and all violations of international humanitarian law. The Council repeated its views in Resolution 836 (1993), adding that a lasting solution must depend on reversing the consequences of ‘ethnic cleansing’ and recognition of the right of all refugees to return to their homes. In Resolution 1004 (1995), the Security Council demanded ‘unimpeded access’ for UNHCR and other humanitarian agencies, adding the International Committee of the Red Cross (ICRC) and the Special Rapporteur for the Commission on Human Rights in Resolution 1034 (1995). In Resolution 1199 (1998), the Security Council condemned the actions of police and military in Kosovo, that is, within the territory of a sovereign

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state. These, said the Council, ‘have resulted in numerous civilian casualties and … the displacement of over 230,000 persons from their homes’. It expressed its concern at the resulting flows of refugees into neighbouring and other European countries ‘as a result of the use of force in Kosovo, as well as by the increasing numbers of displaced persons within Kosovo’. Again, it reaffirmed the right of refugees to return (and Resolution 1203 (1998) underlined the responsibility of the Federal Republic of Yugoslavia for creating the conditions that allow them to do so) and of humanitarian organisations to access. The right of ‘safe and free’ return has also been emphatically repeated in later resolutions, such as Resolutions 1239 and 1244 (1999), and in those adopted in respect of East Timor. What are or might be the legal consequences of all this Security Council activity? Are there now new rules at work in the forced migration field? Are state obligations clearer, what are the prospects for compliance, and how will this be ensured? This significant involvement of the Security Council in forced migration, refugee flows and population displacement – as well as in the too-often related issues of genocide, war crimes and crimes against humanity – invites attention to what is or ought to be its precise role, whether it ‘ought’ to be an actor in the field and whether it may serve as a law-determining authority for states. The role of the law itself in Security Council practice is not always clear. Do laws, rules and principles carry weight in this political/legal environment, and at which juncture? Are non-refoulement and asylum relevant in the formulation of resolutions, or are they to be subsumed (perhaps even overridden) within the overall goal of restoring or maintaining international peace and security? The implications of its resolutions for the obligations of states, both as members of the United Nations and as actors directly affected by decisions and developments in these areas, also require close attention, as recent resolutions on terrorism make clear.6 A decade of practice may be some evidence of an emerging international community interest – the international ‘ordre public’, which Judge Lauterpacht flagged in the Guardianship of Infants Case.7 And if there is an ‘actionable’ community interest, can we identify, consistently and with some certainty, the parameters of institutional response, and therefore predict and hold accountable the bodies that do and do not act? Clearly, the Security Council has shown itself capable of a flexible approach to the identification of the juridically relevant facts, which are the necessary conditions for international action, even intervention. Arguably, the responsibilities of the Security Council have gone beyond the narrow ‘peace and security’ goal, which for long was identified more with the absence of interstate conflict, than with the achievement of traditional reserved domain goals, such as democratic government, political autonomy, human rights and intercommunity relations. ‘Collective security’ is beginning to acquire a justice component, but its content and parameters remain

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uncertain. The voting on Resolution 688 (10–3–2) was a reminder that the Security Council still comprises different world views, and the threat of the veto over Kosovo was another. But, if the Security Council cannot be guaranteed to focus when the next Rwanda evolves, its recognition of the legally relevant elements in an emerging international ordre public is no less likely to strengthen some states and regional organisations, as well as NGOs and communities within states, in their call for action. If there was once a generalised and inchoate duty not to create refugees – to put it very simply – now there is greater room to insist on its observance and to respond, even to intervene, in the case of its breach (all of which regrettably begs many questions, which is part of the problem). Leaving aside the implications for states not presently working within the system, what has been the juridical impact of Security Council resolutions on forced migration, considered as a phenomenon in the relations of states that is potentially susceptible of regulation on the basis of international rule and principle? First, the right of refugees and the displaced to return to their homes has been clearly and emphatically affirmed, together with the responsibility of the state of origin to ensure the conditions that will allow such return in freedom and dignity. The obligations of the state are clearer, and presumably their non-fulfilment is now more likely to be the subject of sanctions or other appropriate measures. Secondly, the responsibility of individuals who have contributed to or caused flight by their involvement in genocide, war crimes and crimes against humanity has been progressively and substantially developed in principle and practice – witness the International Criminal Tribunals for former Yugoslavia and Rwanda, and the 1998 Statute of the International Criminal Court.8 Thirdly, the right of access to refugees and civilian populations at risk, including the internally displaced, is now regularly insisted upon, with obvious implications for both refugee-receiving and refugee-producing countries. Security Council pronouncements on these issues of principle are clearly significant, given the duties of member states vis-à-vis Security Council decisions.9 The recognition of a range of new juridically relevant facts in the process of finding a threat to peace and security goes beyond the decision itself, and carries greater weight than isolated instances of practice among a limited number of states. The institutional context of such characterisation also opens doors, not only in the progression towards decisions and measures under Chapter VII, but also more generally. It allows states at large, and international organisations, to move beyond formal expressions of interest or protest, and into the field of lawful action, for example, in providing humanitarian assistance.10 However, with the competence to engage in lawful action comes responsibility. It would hardly be permissible to return refugees to a state condemned for its displacement practices, or to blockade their search for refuge, whether in the Windward Channel off Haiti, off the northern coast of Sri Lanka, in the waters about

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Australia or indeed at South Africa’s border posts;11 or for UNHCR to fail to provide international protection consistently with international law.

Making It Work If collective security is now complemented by an international ordre public, and if that ordre public now includes the prohibition of genocide, war crimes, crimes against humanity, ethnic cleansing, denial of humanitarian assistance and population displacement, the question still remains how to ‘operationalise’ that concern. Twenty years ago, in his 1982 ‘Report on the Work of the Organisation’, the Secretary-General suggested that greater use be made of Article 99 of the Charter: ‘The Secretary General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security.’ This is a significant right of initiative. With the limited focus of the times, the Secretary-General proposed that the UN’s preventive role could be made more effective by developing ‘a wider and more systematic capacity for fact-finding in potential conflict areas’, and that the Council itself could devise swifter, more responsive procedures for sending good offices missions, military or civilian observers or other UN presence. With reference to refugee movements rather than conflict as such, the Group of Governmental Experts in 1986 urged the main organs of the UN to make fuller use of their respective competencies, ‘with a view to considering at the earliest possible stage situations and problems’ that could give rise to massive flows of refugees. It further recommended that the Secretary-General make full use of his authority, give continuing attention to the question of averting new massive flows, ensure that timely and fuller information is available, analysed and assessed within the Secretariat, share the information, and strive for prompt and more effective action by UN agencies and member states.12 In a general sense, fact-finding is as important in the formulation of policies of prevention and response as in dispute settlement. Any effective system of protection, intercession and assistance depends on accurate sources of information, including access to systematic and authoritative reporting on conditions in any country that may bear on refugee flows, such as war or inter-communal conflict of an ethnic, religious or political nature, widespread violations of human rights and even ecological and natural disasters.13 Such information will allow the formulation of policies for flows and returns, and a more accountable determination of the validity of claims to protection. The United Nations Secretariat initially toyed with information collection and analysis, setting up the Office for Research and Collection of Information (ORCI) in 1988,14 though with little obvious impact in the field of early warning and preventive action.15 Since then, while the

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Department of Humanitarian Affairs has come and gone and changed into the Office of the Coordinator for Humanitarian Affairs, one initiative in particular has endured, namely, ‘ReliefWeb’, an online database and dissemination medium replete with information on complex humanitarian emergencies, updated in real time.16 A gap still remains, however, between the collection, analysis and dissemination of information and its translation into effective political action. Although Article 99 is written in discretionary terms – ‘may’, ‘in his opinion’ – public constituencies expect more today. If the Security Council is to become more coherent and more effective, then it may fall to the Secretary-General, acting on information and representations from states, international and non-governmental organisations, to adopt a distinctly more proactive role in bringing relevant matters to the attention of the Security Council and, moreover, in recommending appropriate, preferably preventive, action compatible with international law and the purposes and principles of the United Nations. It is one thing to posit a legal basis for international action in the matter of mass migration and displacement, quite another to institutionalise, even regularise, such a response. It is also unwise to imagine that international action alone will suffice; on the contrary, the effective implementation of international standards frequently depends upon complementary measures at the national level.

Refugees, Treaties and Implementation in National Law The necessity for complementary and supplemental measures at the national level soon becomes evident. Though reasonably well developed, the international refugee regime still does not provide all the answers to all the questions, such as which state is responsible for determining whether someone is a refugee or for granting asylum, how responsibility for refugees should be shared among states on an equitable basis, or what the precise scope of protection is. International law also does not set out in detail the requirements for refugee determination procedures; instead, it identifies the internationally required goal or standard, leaving it to states to decide how exactly to fulfil their obligations. That being said, the treaties which are the foundation of the regime (the 1951 Convention and 1967 Protocol relating to the Status of Refugees, to either or both of which some 142 States are now party) do provide a generally accepted refugee definition, and the basic principle of protection, which is non-refoulement. Refugee protection is not just about entry or removal, but about status and the standards of treatment to which that status gives rise.17 Although the 1951 Convention was drafted at a time of different concerns and expectations, the drafters had one basic human right squarely in focus,

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namely, the right to recognition as a person before the law, set out in Article 6 of the 1948 Universal Declaration of Human Rights.18 Though not explicitly mentioned in the final text of the Preamble to the 1951 Convention, the drafters understood that the lack of a clear legal status prejudiced the ability of refugees to ‘lead a normal and self-respecting life’.19 The Convention goes on to identify certain conduct that is required of states party to it, and certain results that are to be achieved. Its proposals, often at a level of generality, frequently contrast or conflict with the way we have always done things. Times also change, and from a system primarily concerned with relations between states, international law generally has become much more concerned with the relationship between states and individuals, and with the protection of their rights and legitimate expectations. In coming to the question of how states fulfil their international treaty obligations, two overarching principles must be recognised. The first is the principle pacta sunt servanda, which reflects the rule that every treaty is to be implemented in good faith; and the second is the principle that deficiencies in domestic law are no excuse for non-compliance. Nevertheless, the implementation of treaty obligations also commonly reflects the fact that states often enjoy ‘choice of means’. The treaty identifies a goal to be achieved, but may leave it to the state to decide whether to achieve that goal through the enactment of legislation, the adoption of administrative regulations or the ad hoc use of discretionary powers. Not all obligations are of this kind, and some require or prohibit specific conduct, or formally oblige the state to legislate,20 or call the state to take the necessary steps to ensure the required result, including by way of legislation.21 In the case of standard-setting obligations in general, international law is primarily concerned with the end result, with what actually happens in practice. In many countries, particularly those sharing a common law heritage, practice with regard to international treaty obligations often reflects longstanding institutional attitudes. For example, governments will often ratify a treaty because they think it does not require legislative change, and that obligations can be effectively implemented ad hoc, through the administration. But times change, and even if correct at one period, such assessments may well prove wrong or inadequate in the light of later experience. As a matter of general international law, however, ‘a State which has contracted valid international obligations is bound to make in its legislation such modifications as may be necessary to ensure the fulfilment of the obligations undertaken’;22 moreover, a state ‘may not invoke the provisions of its internal law as justification for its failure to perform a treaty’.23 In short, when a state signs and ratifies a treaty, it accepts a legal obligation to make sure that it has the means – whether legislative or administrative – to implement it. For these reasons, it is important to understand the precise nature of the obligations assumed under the 1951 Convention, and what they require.

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Identifying those obligations enables a better understanding of the choice of means and the results to be achieved. For example, the drafters of the 1951 Convention knew that refugees often arrive in countries of prospective asylum without identity documents. Their recognition of the refugee’s need for an identity, as inherent in his or her dignity and integrity, was reflected in the Convention, in particularly Articles 25, 27 and 28. Read together, these three articles form a single system of protection of the refugee’s entitlement to identity and documentation. Thus, Article 27 lays down an unequivocal obligation on contracting states to ‘issue identity papers to any refugee in their territory who does not possess a valid travel document’. The duty is subject to no exceptions; the travaux préparatoires make it clear that every refugee was intended to benefit24 and, while Article 27 may be the subject of reservations,25 no state party to it has yet made any. The importance of identity papers to the Convention regime of protection is evident, and the matter was considered at both sessions of the Ad hoc Committee, in February and August 1950. The Secretariat invoked the precedent of Article 2 of the 1933 Convention relating to the International Status of Refugees: ‘Each of the Contracting States undertakes to issue Nansen certificates, valid for not less than one year, to refugees residing regularly in its territory,’26 and noted that ‘It is a general principle to issue identity papers, under various designations, which serve both as identity cards and as residence permits.’27 In the debate on the proposal, the Belgian representative, Herment, initially took a more restrictive approach, proposing to qualify the phrase ‘in their territory’ with the word ‘lawfully’: ‘He failed to see how any contracting party could agree to issue identity papers to refugees who were unlawfully in its territory, or who were there on an essentially temporary basis.’ However, the US representative, Louis Henkin, stated that, at the invitation of the International Refugee Organisation (IRO), ‘the Committee had agreed to extend the provisions of [the] Article … to all refugees’. The IRO’s representative, Paul Weis, confirmed the Committee’s intention that ‘every refugee should be provided with some sort of document certifying his identity’,28 and this was accepted. At the 42nd Meeting of the Ad hoc Committee, there was a long debate on the interpretation of the words ‘résidant régulièrement’. The French representative, Juvigny, remarked that the articles generally implied ‘that the presence of the refugees was more or less permanent … a settling down and, consequently, a certain length of residence’. This was to be distinguished from the meaning inherent in the phrase ‘se trouver’, which ‘in the terminology and general structure of the Convention …had a very special significance, and was used only in the article concerning identity papers’, i.e. it referred to a procedure which could not be refused to anyone, whatever his status or the legality of his presence in a given territory.29

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Given the importance of identity documents for refugees30 and the essential simplicity of the obligation accepted by states, one might expect to find widespread compliance. Whether the law and practice of this or that state conform with its international obligations cannot be answered in general or formal terms alone, but only in the light of the facts in particular cases, and the overall picture is mixed. In many countries, particularly civil law states, treaties become part of the local law and can be relied on where claims of right are at issue. At the same time, and given the practical desirability of translating general principles into working rules for the administration, many states have also formally incorporated relevant portions of the 1951 Convention by legislation,31 including those relating to identity and travel documents. Although the 1951 Convention defines a status to which it attaches specific consequences (namely, the status of refugee), it is left it to each state party to the Convention to determine how it will identify those who are to benefit. However, unless identity is accepted and provided for, the refugee will be unable to enjoy his or her fundamental human right to recognition as a person before the law, and to the equal protection of the law. If the implementation of treaty obligations at large is not included among the goals of legislative drafters (and of the proposers of legislation), the resulting law and practice can lead to results at variance with international obligations. As a consequence, many recognised refugees will find themselves ineligible in practice for the benefits otherwise due to recognised and resident refugees, many of which are expressly required to be provided by states party to the 1951 Convention. Article 27 illustrates some of the difficulties of ensuring that international treaty obligations are implemented at the national level. It is still the case that many states have undertaken obligations with regard to human rights but have not ensured that those rights are effectively protected. For instance, procedures may focus on the determination of refugee status but leave aside the potential for claims under Article 3 of the 1984 Convention against Torture, or Article 7 of the 1966 International Covenant on Civil and Political Rights. In other fields, states have undertaken to extradite those accused of ‘international crimes’, but have yet to provide for local prosecution in the event that particular international obligations stand as obstacles to removal.32 In this context, parliaments and courts have a special responsibility to ensure that international obligations are adequately incorporated at the legislative drafting stage, on the adoption of administrative regulations, in the review of operational instructions or thereafter through the application of principles of interpretation that promote consistency with international law.

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Conclusion The events of September 2001 have had a chilling effect on the protection of refugees, for whom effective implementation of international obligations is often the last remaining guarantee of life or liberty. The attention now being given to the causes of refugee movements is generally welcome, provided due regard is paid to the legal dimensions of protection at all stages – preflight, during flight and after flight. A number of caveats are nevertheless called for. The first concerns individual rights. In principle, Chapter VII of the UN Charter indicates a number of limits to the range of Security Council action; it frequently refers to the Council doing what is ‘necessary’, while Article 24(2) declares that, ‘In discharging [its responsibility for the maintenance of international peace and security], the Security Council shall act in accordance with the Purposes and Principles of the United Nations.’ Brownlie has noted how the Security Council’s resolutions with regard to Libya and Lockerbie33 trespassed into an area (extradition) governed by ‘precise principles of international law’, in the particular case that no national need be extradited save under treaty freely entered into. Precise and some less precise principles also operate in the refugee field – nonrefoulement, temporary refuge, the right to seek asylum, for example, or the tried and tested provisions on exclusion.34 It may not have been obvious in the above short account of selected resolutions, but the Security Council rarely refers to the individual as a rights holder. Its concerns are situational and global, and the consequence of engagement in the broad field of displacement may be that the obligations of states and the status of the individual as rights holder will be significantly undermined. The second caveat is related, and concerns international organisations, particularly the Office of the United Nations High Commissioner for Refugees, which has a very specific mandate to provide international protection for refugees, and whose work is required to be humanitarian and non-political. The UNHCR is also a ‘special’ organisation, its head elected by the General Assembly to which it reports, an intended measure of autonomy from the politics of the Secretariat. Experience in Bosnia and Herzegovina and elsewhere has exposed the dangers of confusing humanitarian with political mandates; the Security Council’s objectives under Chapter VII are essentially political, and ideologically appropriate moments (the veto, the balance of power, authority and influence) are still likely to determine when legally relevant facts will be attributed particular legal consequences. Of course, UNHCR does not work in a political vacuum, but its humanitarian purposes and mandated responsibility to provide international protection to an internationally recognised class of refugees are reason enough to maintain a measure of distance from Security Council operations. The final caveat concerns the relationship between international obligations and implementation at national level. International protection, if it is to be effective, requires complementary measures at both levels. The

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1951 Convention establishes clear protection goals, but the legal situation in many states party to it continues to make little or no provision for rights to be recognised or benefits to be extended, or even for the occasionally competing interests of the state to be authoritatively adjudicated. In the absence of strong local structures conforming to the rule of law, there is a danger that ‘interpretative’ pronouncements by the Security Council may be given greater weight than is right or proper. At present, and notwithstanding the terms of Article 35 of the 1951 Convention, the mechanisms for monitoring compliance are relatively weak. Unless and until these are strengthened,35 it will largely fall to local NGOs and advocacy groups to maintain a watching brief in the field, and to ensure that issues of concern come before legislatures and courts and appropriate solutions are found.

Notes 1. See B. Ghosh, ed., Managing Migration: Time for a New International Regime? (Oxford 2001). 2. These agencies include, within the UN system, UNHCR, UN Office for the Coordination of Humanitarian Affairs (OCHA), UN Development Programme (UNDP), World Health Organisation (WHO), World Food Programme (WFP), UN Children’s Fund (UNICEF); and outside the UN, the International Committee of the Red Cross ( ICRC) and the International Organisation for Migration (IOM). 3. R.Y. Jennings, ‘Some International Law Aspects of the Refugee Question’, British Yearbook of International Law 20 (1939): 111; see also at 112–13: ‘Domestic rights must be subject to the principle sic utere tuo ut alienum non laedas. And for a State to employ these rights with the avowed purpose of saddling other States with unwanted sections of its population is as clear an abuse of right as can be imagined.’ 4. ICJ Reports, 16 (1971) at 54 (par. 118). 5. Thus, the concept of obligations erga omnes, which seems such an attractive player in the field of refugee creation, also remains incomplete; see generally M. Ragazzi, The Concept of International Obligations Erga Omnes (Oxford 1997). 6. See UN Security Council resolution 1373 (2001), pars. 3(f), (g), 5, and UN Security Council resolution 1377 (2001). Security Council action will also have an impact on the roles and responsibilities of UN-family agencies, particularly UNHCR. 7. ICJ Reports (1958) at 53. See also G.S. Goodwin-Gill International Law and the Movement of People between States (Oxford 1978), 295–97, 8. Article. 13(b) of the Statute incidentally looks forward to the possibility of the Security Council, acting under Chapter VII, referring to the prosecutor ‘a situation in which one or more [crimes within the jurisdiction of the Court] appear to have been committed’. 9. See Article 25 and Chapter VII of the UN Charter. The Advisory Opinion of the International Court of Justice in the Namibia case, ICJ Reports (1970) at 16, provides a reminder of the potential legal consequences. 10. At least within the parameters recognised by the International Court of Justice in the Nicaragua case, ICJ Reports, 1986, pars. 242–43. 11. See the case of LHR v. Minister of Home Affairs, Case No. 10783/2001, Pretoria Local Division, in which it was successfully argued that the South African government’s policy of refusing admission to asylum-seekers who had passed through neighbouring countries was unconstitutional.

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12. See UN, Report of the Group of Governmental Experts (A/41/324), 13 May 1986, par. 68, 70–72. 13. S. Rusu, ‘Refugees, Information and Solutions: The Need for Informed DecisionMaking’, Refugee Survey Quarterly 13 (1994): 4. 14. See B.G. Ramcharan, ‘Early Warning at the United Nations: The First Experiment’, International Journal of Refugee Law 1 (1989): 379; T.F. Dimitrichev, ‘Conceptual Approaches to Early Warning: Mechanisms and Methodologies – A View from the United Nations’, International Journal of Refugee Law 3 (1991): 264. 15. See G.A. Beyer, ‘Human Rights Monitoring and the Failure of Early Warning: a Practitioner’s View’, International Journal of Refugee Law 2 (1990): 56; S, Rusu, ‘The Role of the Collector in Early Warning’, International Journal of Refugee Law Special Issue – September (1990): 65; G.A. Beyer, ‘Monitoring Root Causes of Refugee Flows: Early Warning and the Need for Substance’, International Journal of Refugee Law Special Issue – September (1990): 71; H. A. Ruiz, ‘Early Warning is Not Enough: the Failure to Prevent Starvation in Ethiopia, 1990’, International Journal of Refugee Law Special Issue – September (1990): 84. 16. See http://www.reliefweb.int. 17. See Saad, Diriye & Osorio v. Secretary of State for the Home Department [2001] EWCA Civ 2008. 18. ‘Everyone has the right to recognition everywhere as a person before the law.’ 1948 Universal Declaration of Human Rights: UNGA res. 217 A (III), 10 Dec. 1948. 19. E/AC.32/2, 3 Jan. 1950. 20. See Article 20(1), 1966 International Covenant on Civil and Political Rights. 21. See Articles 2(1) and 2(3), 1966 International Covenant on Civil and Political Rights. 22. Permanent Court of International Justice, Exchange of Greek and Turkish Populations (1925) PCIJ, Ser. B, No. 10, 20; International Court of Justice, Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, (1988) ICJ Reports 12, 31–32, par. 47: in the relation of national law to international law, it is a ‘fundamental principle of international law that international law prevails over domestic law’. 23. Article 27, 1969 Vienna Convention on the Law of Treaties. 24. Report, Ad hoc Committee on Refugees and Stateless Persons (UN doc. E/AC.32/SR.38), 26 November 1950, 23–25 25. Article 42(1) of the 1951 Convention permits reservations to articles of the Convention other than Articles 1, 3, 4, 16(1), 33, 36–46 inclusive. 26. Article 2, 1933 Convention relating to the International Status of Refugees, 159 LNTS No. 3663. 27. Ad hoc Committee on Refugees and Stateless Persons, ‘Draft Report’ (UN doc. E/AC.32/L.38), 15 Feb. 1950. 28. Ad hoc Committee on Refugees and Stateless Persons, ‘Summary Records’ (UN doc. E/AC.32/SR.15), 1950, pars. 57–129 (the first session debate dealt almost exclusively with issues of residence and security); E/AC.32/SR.38, pages 23–25 (a Canadian comment in the debate suggests some confusion between identity documents and travel or re-entry documents: p. 23); E/AC.32/SR.41, p 20 (the draft Article was adopted with the substitution in the French text of the heading of the phrase ‘Pièce d’identité’ for ‘Carte de légitimation’); E/AC.32/SR.42, pp 11–35 (primarily discussing the meaning of the French phrase, ‘résidant régulièrement’). Mr Weis also noted that ‘A man without papers was a pariah subject to arrest for that reason alone’: E/AC.32/SR.38, 26 Sep. 1950, 24. It was nevertheless recognised that the issue of identity papers was without prejudice to the right of the government to expel a person illegally present. 29. Ad hoc Committee, ‘Summary Records’ (UN doc. E/AC.32/SR.42), pp. 12 and 23.

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30. See J. van. Garderen, ‘New Identification Document: Red Cards for Refugees’, Botshabelo 4, no. 1 (2001). 31. Many examples can be found in the section on national legislation in UNHCR, RefWorld, 8th edn, July 1999 (a CD-ROM database); this includes relevant selections from the laws of Belgium, France, Germany, Switzerland, U. S. A., among others. In addition to incorporating many other aspects of the 1951 Convention, South Africa’s Refugees Act (130 of 1998) makes provision for identity and travel documents for refugees in articles 30 and 31, although the type of document issued has raised considerable concerns, see van Garderen, ‘New Identification Document’. 32. See G.S. Goodwin-Gill, ‘Crime in International Law: Obligations erga omnes and the Duty to Prosecute’, in The Reality of International Law: Essays in Honour of Ian Brownlie, ed. G. S. Goodwin-Gill, and S. Talmon,, (Oxford 1999), 199. 33. See, for example, UN Security Council resolutions 731 and 748 (1992). 34. See Article 1F, 1951 Convention on the Status of Refugees. 35. See W. Kälin, ‘Supervising the 1951 Convention on the Status of Refugees: Article 35 and Beyond’, in Refugee Protection in International Law, ed. E. Feller, V. Türk and F. Nicholson, (Cambridge 2003), pp. 613–665.

2 REGIONAL INTEGRATION, PROTECTION AND MIGRATION POLICY CHALLENGES IN SOUTHERN AFRICA Loren B. Landau

 The Challenge for South Africa is to formulate policy that takes advantage of the positive aspects of globalization, including the unprecedented movement of people with skills, expertise, resources, entrepreneurship and capital, which will support the country’s efforts at reconstruction, development and nation-building. Republic of South Africa, White Paper on International Migration, 1999 Migration should form an integral part of every country’s national economic and development plan – a recommendation that derives from the failure of many states to define clear objectives for their migration policies. Global Commission for International Migration, Migration in an Interconnected World, 20051

Introduction Honouring South Africa’s commitments to promoting the rights and prosperity of all its residents – citizens, immigrants, refugees and asylumseekers – requires a regime of laws and practices that ensures that the presence of non-nationals does not foster corruption, coercion and illegality by citizens, private security firms and state agents. Despite South Africa’s commitments to ensuring that its asylum system promotes human rights, administrative rationality and the rule of law, considerable obstacles remain

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to achieving this end. Foremost among these is the ethos of control that continues to exert considerable influence on the country’s immigration policies and practices, from the level of ministry to the police officers who now serve as de facto border control agents. Other challenges include extended and highly porous borders; millions of undocumented citizens; long-standing international and domestic migration patterns that remain critical to the regional economy but take place outside an effective legal framework; and a severe lack of capacity throughout the agencies charged with migration management and refugee status determination. Together, these features interact to generate a migration and asylum regime that protects neither the rights of non-nationals (including refugees and asylumseekers) nor the interests of South African citizens. This chapter explores three facets of immigration and asylum policy that together provide a general context for understanding refugee protection; help elucidate the shortcomings of the current migration and asylum system; and provide the foundation for reconsidering policy in ways that can promote the prosperity and rights of non-nationals and South Africans. The first point is that migration is a perennial and indelible part of the Southern African political economy. However, much of the movement into South Africa takes place – and will continue to do so – outside state regulation. The region’s poverty and instability, combined with South Africa’s practical inability to close its borders, mean that further efforts to control or halt migration will drive the processes further underground, denying rights to asylum-seekers, criminalising other migrants, suppressing the price of labour and opening additional opportunities for exploitation, corruption and violence. Secondly, the implications of immigration and asylum policies and practices extend beyond non-nationals’ rights and experiences. Unlike many countries in the region, South Africa does not maintain a system of refugee camps, but rather encourages asylum-seekers and refugees to seek accommodation, social services and employment within existing markets and structures. Although many non-nationals remain socially marginalised, such a level of de facto integration means that policies that affect nonnationals necessarily bear consequences for the South Africans amongst whom they live. The third point is that asylum policy and migration policy remain firmly within the bailiwick of South Africa’s national government, while the effects and responsibility for administrative response fall elsewhere. (As Smith notes, non-governmental organisations and other actors were involved in formulating the 1998 Refugees Act, but this is a notable exception.)2 As immigration – along with regional economic integration – directly insinuates cities into transnational processes (often in ways that circumvent national policy), local authorities are becoming increasingly responsible for stimulating and reacting to migration trends. Formal political decentralisation and devolution likewise mean that provincial and municipal

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governments will increasingly feel the impact of migration, both positive and negative. Although citizenship and asylum laws must remain national, there is a need to include sub-national actors, and their priorities, in formulating and implementing an effective immigration and asylum regime. Such assertions may seem self-evident, but they contrast sharply with South Africa’s (and, indeed, Southern Africa’s) existing immigration and asylum regime. Until very recently, government actors almost universally retained the belief that they should not only act to control immigration but that they had the tools to do so. Moreover – as elsewhere in the world – immigration and asylum policy have typically been addressed in isolation from broader social, economic and political objectives and continue to be labelled an issue of security and sovereignty rather than rights and development. Consequently, if unsurprisingly, the resulting asylum and immigration regime is not only ineffective at protecting refugee and asylumseeker rights, but threatens to derail broader efforts to promote human rights, administrative justice and prosperity for all of South Africa’s residents. This essay proceeds through three primary stages in illustrating dysfunctions within the immigration and asylum regime and pointing towards considerations for potential improvements. It begins by outlining a number of South Africa’s key post-apartheid priorities regarding human rights and regional integration. This precedes a summary of the existing legal/policy apparatus and key migration dynamics. As other chapters more explicitly discuss the country’s legal instruments, the review here concentrates on highlighting critical disjunctures between the assumptions informing policy and de facto migration patterns and regulatory practices and capacities. Without providing concrete policy alternatives, the chapter concludes with a series of further considerations intended to guide a more pragmatic and effective approach to immigration and asylum.

The Promise of Freedom, Regional Integration and Regional Migration Management The end of apartheid in 1994 gave power to a new government publicly committed to tolerance, human rights, prosperity and regional cooperation; what has subsequently been termed the ‘African Renaissance’. Then Deputy President (now President) Mbeki poetically and publicly pronounced the government’s dedication to these principles on 8 May 1996 when he delivered his ‘I am an African’ speech celebrating the new South African Constitution. His presentation paid tribute to his ancestors – South Africa’s indigenous peoples, along with migrants from Asia, Europe and the rest of Africa – and thanked them for, ‘teaching me that we could both be at home and be foreign’ and that, ‘freedom was a necessary condition for … human existence’. Indeed, to promote the idea that no one in the country should again suffer prejudice on the grounds of their race, religion, class, or

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background, the Constitution’s preamble explicitly promises that ‘South Africa belongs to all who live in it,’ with no explicit reference to place of birth or citizenship status. Bolstering its Constitutional commitments, South Africa’s government has affirmed its reverence for tolerance and universal rights by signing an extensive array of international conventions. Particularly relevant here are is accession to the 1951 United Nations Refugee Convention, the African Union (1969) Refugee Convention and the International Covenant on Civil and Political Rights (ICCPR). The rights of migrant labourers and undocumented migrants are less explicitly protected, but such categories of people are nevertheless granted significant, if minimal, protection.3 South Africa’s inclusive and rights-based commitments surface again in its support for the Southern Africa Development Community (SADC), the New Partnership for African Development (NEPAD) and the African Union (AU; formerly the Organisation of African Unity or OAU). Through these bodies, South Africa seeks to extend its commitment to universal prosperity, rights and the rule of law across Africa while situating itself at the heart of continental networks of ideas, trade and travel. At the time of writing, there was even a giant sign posted outside Johannesburg International Airport’s arrival terminal welcoming visitors to South Africa and proudly proclaiming that despite the country’s 44 million people and eleven languages, there is not a single word for stranger. Sub-nationally, many cities’ long-term development agendas reflect a similar desire to effect an inclusive, international cosmopolitanism. Cape Town, for example, has successfully positioned itself as a major centre for European, American and African tourism while Johannesburg’s ambitions see it becoming a ‘world class, African city’ by 2030. The World Cup in 2010 will certainly bring the world to South Africa.4 Although almost all South African politicians are publicly committed to tolerance and regional integration and recognise the country’s international humanitarian obligations, efforts towards these ends are not supported by the legal and administrative mechanisms needed for managing immigration, a form of regional integration now taking place largely outside the realm of official policy and regulation. (In the late 1990s, SADC considered a protocol for cross-border migration (the ‘Draft Free Movement Protocol’), but this has subsequently been rejected, even in a denuded form intended to placate Southern African countries’ political priorities.) In the absence of specific regional conventions and instruments, migration and asylum policy remain almost exclusively domestic affairs. Unfortunately, as Klaaren and Rutinwa suggest, many of the region’s laws are anachronisms that yake little consideration of domestic implementation capacity or the challenges inherent in regulating a diverse and dispersed population that may already be deeply involved in transnational migration processes.5 In the last two years South Africa has made efforts to regularise migration within the region – through bilateral arrangements with

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Mozambique and the revived SADC protocol on the free movement of people and goods – but these remain only small steps towards providing an effective normative and administrative framework. Indeed, the existing system of laws and practices suggests an inadequate understanding of particular demographic trends and significantly overestimates the country’s administrative capacities. There are five key factors particularly worth noting about this framework, each of which has generated unintended, negative consequences for the domestic economy, the rights of citizens and non-nationals and (ironically) the rule of law.

Key Factor 1 While the South African government actively promotes regional integration vis-à-vis foreign direct investment and highly skilled labour, there has been little effort to facilitate the movements or protect the rights of low or moderately skilled migrants, a group that accounts for most of those crossing the region’s international boundaries. There are a growing number of bilateral agreements, but in South Africa (as in Botswana and Namibia) legislation differentiates and discriminates against unskilled workers.

Key Factor 2 South Africa’s immigration regime makes it extremely difficult for nonnationals with temporary contracts without contracts, or with refugee/asylum status to regularise their stay as permanent residents or through naturalisation. While highly skilled workers who have worked continuously for five years or have permanent contracts may apply for permanent residence, others wishing to extend their stay have few mechanisms for doing so and are often criminalised, excluded from critical social services and subject to detention and/or deportation. Refugees are formally allowed to apply for permanent residence, but the obstacles effectively serve as a prohibition on doing so.

Key Factor 3 Immigration laws effectively prevent employers from legally accessing foreign labour unless they are willing to navigate a lengthy, expensive, and difficult work-permit application process. There are exceptions with ‘corporate work permits’ – used in mining and agriculture – but such mechanisms are not widely available. While large corporations may do this for highly skilled employees, such procedures are rarely followed for the majority of non-nationals. Given the added flexibility and lower wage bill that typically come from hiring non-nationals, it is not surprising that employers frequently hire undocumented labour.

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Key Factor 4 Although there are examples of cooperation among government officials across the range of departments and levels (e.g. inter-ministerial committees, links between the army and the police), responsibility for the immigration and asylum regime remains a matter almost fully within the bailiwick of the national government. In a country in which provincial and local governments are assigned impressive authorities and duties, their exclusion is particularly notable.

Key Factor 5 As noted in this chapter’s introduction, South Africa’s immigration policy continues to be strongly influenced by the control ethos that shaped the pre1994 regime. The focus on identity documents, detention and deportation is illustrative of this, as is the need for asylum-seekers and refugees to report regularly to designated reception offices. Even recent discussions about harmonising regional instruments have rarely considered initiatives for facilitating immigration, but have instead focused on new measures to limit it. These include, inter alia, proposals to create asylum-seeker camps and a computerised database listing all immigrants, refugees and asylum-seekers entering the region so that governments may trace individuals to prevent smuggling and human trafficking along with ‘asylum shopping’ or irregular movement. My point is not to challenge South Africa’s rights to regulate immigration or formulate more or less restrictive asylum laws. Rather, through the remainder of this chapter I wish to highlight the dysfunctional products emerging from the interactions of structural incentives/needs for international migration, an inappropriate legal framework, and limited regulatory capacity. The first step in doing so is to describe who is coming to South Africa; how, where and with whom they live; and the challenges and contexts they must negotiate.

Immigration Trends and Demographic Profiles In the minds of many South Africans, issues of immigration and displacement have emerged only in the post-apartheid period. The dynamics and directions of people’s movements have changed during the first decade of democracy, but centuries of migration within the region and from other parts of Africa, Europe and Asia have shaped the country’s current political economy and social configurations. The country’s internal politics have also been a significant source of displacement, starting with the Mfecane, and extending through colonialism, segregation and the

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apartheid period, when tens of thousands of South Africans left the country seeking freedom or economic opportunity or to help organise against oppression. Wars in neighbouring countries supported by the apartheid government also displaced hundreds of thousands more from the 1970s into the early 1990s. Internally, the Group Areas Act forced millions of South Africans to move into townships and Bantustans. Dating back to the initial gold rush that helped build South Africa’s tremendous wealth, millions of labourers have moved throughout the region – often in carefully managed guest worker programmes – to find employment in mining and commercial agriculture.6 South Africa’s perennial demand for skilled labour and entrepreneurs, its domestic ‘skills gap’ and long-standing patterns of agricultural and mine labour all but ensure that the region’s largest domestic economy will rely ever more heavily on people born and educated outside the country. There is, similarly, evidence that South Africa’s skilled labour – including medical professionals and engineers, but also artists and academics – will continue using their training and experience to find work outside the country.7 It is possible to identify motivations for mobility throughout the region, but far more challenging to precisely quantify its magnitude. Not only do few countries in the region keep accurate tallies of entries and exits, but estimates of the country’s foreign-born population are also greatly contested. It is clear, however, that the actual numbers of refugees, asylumseekers and other non-nationals are far below those many South Africans imagine. Reasoned estimates put the percentage of non-nationals in the country – including undocumented aliens, official immigrants, refugees and asylum-seekers – is somewhere between 1 and 2 percent of the country’s approximately 44 million residents, somewhere between 500,000 and 850,000.8 Those numbers have probably climbed, given the ongoing Zimbabwean crisis, but there have only been speculative estimates of this increase. It is also worth noting that the 2001 national census – the primary official source on such figures – found only 345,161 non-South Africans in the country, although Statistics South Africa recognises that these figures represent a significant undercount. Such figures are a far cry from estimates of 5 million and 4 million illegal immigrants in the country cited by the country’s Human Sciences Research Council (HSRC) soon after South Africa’s first democratic elections (a figure close to 10 percent of South African total residents). Such alarmist figures were later officially withdrawn but continued to feature on the Department of Home Affairs’ (DHA) official website until after the 2004 national elections and the appointment of Mapisa-Nqakula as the Minister of Home Affairs. Despite the relatively modest numbers of foreigners within the country, it is nevertheless clear that South Africa and its major cities are key nodes in regional migration networks and primary destinations or transit points for refugees and asylum-seekers from across the continent. Of the nonnationals counted in the 2001 census, for example, 320,178 (93 percent)

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came from within the Southern African Development Community (SADC). The majority of refugees and asylum-seekers – who now total close to 150,000 – also come from SADC countries. Almost all of the rest are from other African countries. Figures on tourist and student visas indicate similar geographical origins. While migration for work in the mining and agriculture sectors continues to be highly significant, South Africa’s cities have become the primary destination for new forms of international migrants. Gauteng Province – sub-Saharan Africa’s economic hub, which includes both Johannesburg and Pretoria – has been the area most transformed by these dynamics.9 According to official statistics, Gauteng’s foreign-born population has grown from 4.8 percent of the total in 1996 to 5.4 percent in 2001. In Johannesburg, the numbers are even more striking: a five-year jump from 65,205 to 102,326, a figure representing a climb to 6.7 percent of the city’s population.10 In certain inner-city neighbourhoods, the percentage is nearly 25 percent.11 It is worth noting that, despite the dramatic increases in South African cities’ non-national populations, most of their growth is due to domestic migration. The convergence of newly urbanised South Africans and non-nationals has produced its own unique dynamics, which may become increasingly significant in the years ahead.12 Many of the people coming to South Africa do not intend to live permanently in the country, although there are significant numbers who would like to do so. Rather, echoing long-standing patterns of circular or temporary labour migration, many come only to earn enough to meet their needs (or those of their families) in their countries of origin or to finance their journeys onwards to Europe or North America.13 There are also pronounced seasonal migrations and the significant remittances of goods or funds back to countries and communities of origin. In some parts of southern Zimbabwe, for example, almost three-quarters of families are at least partially dependent on remittances from South Africa.14 Although many of the non-nationals in South Africa fit the profile of ‘traditional’ immigrants (i.e. moving directly from one country to another for permanent settlement), few of the refugees and asylum-seekers qualify as ‘irregular movers’, people who have received asylum in another country and have moved on for non-compelling reasons.15 Rather, as the following paragraphs suggest, asylum-seekers arriving in South Africa come to the country for strategic reasons including, inter alia, a desire to avoid living in camps or being otherwise restricted to remote rural regions. From the limited data on who is moving in and through South Africa it appears as though non-nationals’ demographic profile is considerably different from the South Africans amongst whom they live. Most, for example, are relatively young,16 almost half are married or living with a partner (45 percent), although those in the bigger cities tend to be younger and more likely to be single. There are also far more men entering the country than women although there are suggestions that the number of

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women – many moving alone – is increasing.17 Confounding popular images of asylum-seekers and refugees as desperate for aid, those in South Africa tend to be relatively educated, wealthy and generally well positioned to compete in an urban economy. For example, two-thirds of refugees and asylum-seekers nationally indicated that they were fluent in English, with many others speaking another international language (usually French or Portuguese).18 Moreover, a similar number of respondents had completed a high school equivalency or a higher level of education and almost one-third had completed at least some tertiary education.19 Survey work in Johannesburg indicates that non-nationals are typically considerably better educated than the South Africans amongst whom they live.20 Other data from the same Johannesburg survey indicate that non-nationals – including large numbers of refugees and asylum-seekers – tend to come from middleclass, urban families (95 percent reported being from towns or cities) and almost all were working before coming to South Africa, many as business owners or in other professional positions. In concluding this section, I wish to draw three primary points from the previous discussion and other available research. First, South Africa remains the centre of a regional migration network and the South African economy depends heavily on migrant labour, although many politicians and citizens wish to severely restrict immigration. Secondly, South Africa is not only a migration destination, but also serves as a conduit for migrants intending to reach other countries. Thirdly, long-standing patterns of circular labour migration continue, but many migrants (including refugees and asylum-seekers) are staying longer in South Africa, establishing patterns of chain migration and increasingly creating transnational households. This is especially the case among those who have travelled longer distances (e.g. from Somalia), although many from Mozambique and Zimbabwe have integrated with co-ethnics in the country’s rural areas. Finally, it is important to recognise the intersections between migration and asylum policy. Even if refugees are afforded specific rights, claiming these rights requires a bureaucratic system that differentiates refugees from other migrants. In South Africa, the absence of any viable way of regularising their status in the country – coupled with long delays in the refugee status determination process – means that many labour migrants have turned to the asylum claims process to provide some level of legal protection. Together with widespread corruption, this additional burden on the asylum system has only fostered further delays and partially discredited the refugee status determination system.21 The results of this one disjuncture between existing migration patterns and the regime designed to manage them point to a broader set of unintended, and almost universally negative, consequences. These serve as the focus of the following section.

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The Consequences of Ineffective Migration Management and Refugee Assistance There is an obvious conceptual and ethical dissonance between public commitments to the free flow of goods, capital and ideas and an immigration and asylum regime that is either silent on labour movements or actively seeks to control cross-border migration.22 There is, however, little to say about such inconsistencies here other than that the asylum regime has been so visibly shaped, in practice if not law, by a similar control ethos and the increasingly restrictive policies in Europe, Australia and North America. Rather than rehearse these frustrations in abstract terms, this section demonstrates how the country’s immigration and asylum regime is generating unintended by-products that threaten to undermine South Africa’s broader commitments to rights, the rule of law and reducing economic inequality. South Africa’s response is particularly important in this regard, not only as the subject of this book, but because its actions may set the standard for policy-making throughout the region.

Health and Welfare Many health care workers speak about ‘foreigners taking government money and having too many babies’, while others describe their facilities as ‘infested’ with foreigners. There are preliminary indications that such sentiments have significant consequences. The inability or unwillingness of many hospital staff members to distinguish between different classes of migrants coupled with a limited respect for non-nationals’ rights, often means that refugees and asylum-seekers are denied access to basic health services or that they are charged additional, illegal, fees. Non-nationals are also frequently made to wait longer than South Africans before being seen and are subject to other forms of discrimination from health care workers, including being denied full courses of prescribed medicines.23 As with many other aspects of their experiences in South Africa, the exclusion of refugees and asylum seekers from health services affects not only their welfare but the health and wellbeing of those around them. Moreover, such exclusion both is the result of and has effects on officials at local, provincial and national levels. Failure to overcome these obstacles often has dire consequences. Despite legislation demanding that all people in South Africa be provided access to ‘life saving’ care, a recent national study of refugees and asylum-seekers found that 17 percent of all respondents were denied emergency medical care, often because of improper documentation or ignorance on the part of the admitting nurses.24 If one could calculate this as a percentage of those that actually sought such care, the figure would be much higher. In one particularly dramatic incident, a pregnant Somali woman was refused service on the grounds that (1) delivery, unless problematic, did not constitute an emergency and (2) she could not pay the additional fee levied on foreigners (which as a

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refugee she was not required to pay). As a result, she ultimately delivered the child on the pavement outside the hospital, only to have it die a few weeks later. This is an extreme, but not exceptional, example. Given their tenuous status in the country – often aggravated by a lack of proper identification – and their relative ignorance of their rights, many foreigners simply accept these violations. Indeed, only 1 percent of refugees and asylum seekers who were refused basic health services lodged a complaint and 24 percent report doing nothing, largely because they did not know what to do. Only 41 percent reported trying another facility after being refused service, although it is not clear if all of these were successful in accessing health care.25 Providing health care for refugees, asylum-seekers and other nonnationals is also a critical public health concern. In addition to the potential for trauma or other psychological illnesses faced by refugees and asylumseekers, people who have travelled for extended periods or are living in poor conditions are at increased risk for diarrhoea, malnutrition or malaria. While these concerns can be easily addressed with proper attention, denial of health care can lead to the spread of infection and disease to migrants and communities in which they live. Apart from being a violation of human rights and dignity, illness potentially limits the contributions of all South Africans. Where there is limited capacity to respond to epidemics, as there is in many of South Africa’s inner cities, it is especially critical to facilitate access to basic preventive care.

Labour Market and Economic Dynamism The existing immigration and asylum regime has even more obvious (negative) by-products on the economic welfare of both non-nationals and South Africans. While assigning refugees and asylum-seekers the right to work is potentially positive for both refugee and host populations, the effectiveness of such a laissez-faire approach depends on refugees’ ability to compete fairly in the labour market. Where the Department of Home Affairs and other officials have endorsed discrimination against foreigners, such equality cannot be assumed. Indeed, in his first speech to parliament following his appointment as Minster (he served from 1994 to 2004), the famously xenophobic Mangosuthu Buthelezi proclaimed that ‘The employment of illegal immigrants is unpatriotic because it deprives South Africans of jobs and that the rising level of immigrants has awesome implications for the [reconstruction and development programme] as they will be absorbing unacceptable proportions of housing subsidies and adding to the difficulties we will be experiencing in health care.’26 The consequences are that many refugees and asylum seekers continue to face difficulty in the job market. That prevailing unemployment rates throughout South Africa hover around 40 percent (and in places can top 70 percent) only exaggerates these challenges. That many cannot access savings accounts also means that they tend to carry cash on their persons,

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making them targets for both petty thieves and police extortion (see below). The consequences of a significant unemployed population (regardless of nationality) and heightened crime are felt at and must be addressed through a coordinated response from all levels of government. Despite the obstacles they face, it already appears as though non-nationals (especially those in urban areas) are, on aggregate, increasing economic opportunities for South Africans. Research in inner-city Johannesburg, for example, found that non-South Africans (including many refugees and asylum-seekers) were far more likely to have hired someone to work for them in the past year than the South Africans amongst whom they lived. While just 20 percent of South Africans report having paid someone to do work for them, 34 percent of migrants surveyed had. Even more significantly, more than two-thirds (67 percent) of those hired by migrants were South Africans.27 Hunter and Skinner’s work in Durban also identifies a positive economic impact from immigration and the city government has adopted policies that allow non-nationals to apply for street-trading permits.28 Despite these obstacles, employment for refugees remains highly insecure and foreigners remain subject to exploitation and other forms of abuse. There are broader consequences of excluding refugees (and other nonnationals) from full economic participation. As a result of apartheid-era education and employment policies and outmigration, South Africa currently lacks the human resources to meet its developmental objectives. In this context, the failure to capitalise on people already in the country can be seen as anti-developmental. More importantly, due to non-nationals’ tenuous legal status, many of the activities described above take the form of small or informal business and the people involved with them continue to invest their earnings elsewhere. The inability to effectively incorporate asylum-seekers, refugees and other non-nationals into the legal workforce has also driven processes of informalisation and illegality. During the apartheid era, labour was imported from neighbouring countries – on contracts that required workers to return home to collect their pay – in order to undermine the growing strength of South Africa’s trade unions. Rather than protecting the rights and livelihoods of citizens, immigration policy has de facto replicated these patterns by promoting the illegal hiring of non-nationals in ways that continue to undermine the unions and suppress the wages paid to all workers. Moreover, by encouraging nonnationals (and those who hire them) to work in the informal sector or shadow economy, government at all levels deprives itself of an important source of revenue and undermines its ability to plan and intervene for the betterment of all residents.

Rule of Law The criminalisation of non-nationals described above, and elsewhere, has opened opportunities for police corruption and illegality.29 Part of this is

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rooted in the competing pressures on police: both to protect the rights of non-nationals and to control their access to the country’s cities. There are, however, other reasons behind the ways in which the police have treated foreigners. For one thing, by targeting non-nationals, police are able to meet periodic arrest targets. Non-South Africans living or working in Johannesburg consequently report having been stopped by the police far more frequently than South Africans (71 percent versus 47 percent according to Jacobsen and Landau, supra 2004), despite having generally lived in the city for shorter periods. Although under instruction to respect the rights of non-nationals, police often refuse to recognise work permits or refugee identity cards. Some respondents even report having their identity papers confiscated or destroyed in order to justify an arrest.30 Furthermore, there have been numerous assertions that police elicit bribes from apprehended persons (documented and undocumented) in exchange for freedom. A Sierra Leonean man recounts his experience as such: The police asked me for my refugee paper, which had not yet expired. They say, ‘f_ _k you’ and they just tear the paper and seize my money and cell-phone … So then, what they do is take me to the police station. I was shouting … [and] one of them just removed something like a little shocker. He was shocking me … say that I was to shut up and if I wasn’t shut up, he was going to shock me until I die.31

The South African Human Rights Commission reports that this is not an isolated incident: In the majority of cases there were no reasonable grounds for an apprehending officer to suspect that a person was a non-national. A significant number of persons interviewed had identification documents which were either destroyed or ignored or which they were prevented from fetching from home. Apprehended persons were often not told or did not understand the reason for their arrest. Extortion and bribery are practices extremely widespread among apprehending officers.32

Indeed, targeting foreigners is also a relatively easy, and socially acceptable, means of supplementing officers’ admittedly meagre income. Denied access to almost all formal banking services, poor immigrants must either stash cash in their residences or carry it on their bodies.33 Combined with their tenuous legal status, (often) poor documentation and tendency to trade on the street (hawking or informal business), some police officers have come to see foreigners as ‘mobile-cash machines’. In the words of one Eritrean living in Johannesburg, ‘as foreign students we are not required to pay taxes to the government. But when we walk down these streets, we pay.’ There are additional deviations from the law oriented at regulating or extracting resources from non-nationals. The 2002 Immigration Act, for example, effectively authorises Department of Home Affairs agents to conduct searches, arrests and deportations without reference to other constitutional or legal protection. Without muscle of their own, immigration agents rely on the South African Police Services (SAPS) and, occasionally, the National Defence Forces (SANDF) to make arrests. More importantly, SAPS

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have exploited this law to legalise what would otherwise be illegal raids on buildings inhabited by suspected criminals and, potentially, illegal immigrants. Often conducted at night and away from oversight, police officers force entry, demand identity documents and arrest both nonnationals and South Africans without respect for normal legal provisions. One such example is illustrative of the extra-legality that has come to characterise much of South Africa’s efforts to manage migration. In September 2003, a joint operation launched by the City of Johannesburg and the Department of Home Affairs deployed helicopters and almost 1,000 private security officers in a thinly disguised effort to rid the city of unwanted foreigners in the name of crime prevention and urban renewal. After sealing a Hillbrow apartment block, officials managed to confiscate four illegal firearms – modest by Johannesburg standards – and arrest 198 illegal immigrants. As unpalatable as these operations may seem, Yakoob Makda, the Director of Johannesburg’s ‘Region Eight’ (i.e. the inner city), proudly reported their anti-crime-cum-anti-immigrant achievements to a public meeting called to help combat social exclusion. This is not the only effort to rid the city of foreigners. Soon after South Africa’s first democratic election, Alexandra Township north of the city centre organised a campaign entitled ‘Operation Buyelekhaya’ (Operation Go Back Home) in an effort to rid the township of all foreigners.34 Nor are these efforts limited to Johannesburg. In 2002, Du Noon Township outside Cape Town also passed a resolution expelling all foreigners and prohibiting them from returning.35 The willingness of municipal authorities to participate in these operations suggests their frustration with the existing immigration and asylum regime. Reforms should develop means through which local and national governmental agencies can collaborate in ways that are both less violent and more effective than the ones described above and in the following paragraphs.

Lindela and Deportation The general hostility to foreigners and officials’ inability (or unwillingness) to distinguish between different categories of non-nationals have helped generate a privatised realm of law enforcement dedicated exclusively to detaining and deporting foreigners. As it exists largely outside of government regulation and public scrutiny, escape from this world requires an outside advocate prepared to offer time and energy or money to pay the requisite bribes. Migrants report that each of Johannesburg’s police stations has its own price and can draw up a rate schedule for what one must pay to be released from them. Without money to pay or an advocate, many simply disappear. Those who have not bought their way out of police custody are remanded to Lindela Repatriation Centre, a privately run detention and deportation facility located on the outskirts of Johannesburg, which is the

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heart of this extraordinary dominion. Reports of sexual abuse, violence and bribery within Lindela are common, while extortion is a normal part of journeys to and from the centre.36 There is also evidence that Lindela’s operators unduly extend inmates stay, even when proper documents have been produced by friends or relatives, in order to maximise the R50/night ($8) they receive from the government for every person they house. Under South African law, a person can be legally detained within the facility for a maximum of thirty days without an additional court order. In mid-2004, detainees were, on average, kept in Lindela for thirty-nine days, with many being held for months without an additional court order. Those who serve out their term in Lindela – including some with legal status to remain in the country and the occasional South African – are loaded onto trains that make twice-weekly trips from Johannesburg to the border with Zimbabwe or Mozambique. Those claiming more distant origins are returned, albeit less frequently, by aeroplane.37 There are reports that detainees must even pay to be deported, something they do simply to escape Lindela.38 Despite its expense and the fact that many of the deportations take place without mandatory hearings, deportations show no sign of abating: The Department of Home Affairs’ Annual Report for 2003 indicates that 151,653 non-citizens were ‘removed’ during 2002. In the first nine months of 2003, 41,207 Zimbabweans alone were repatriated (17,000 were deported in all of 2001).39 While popular, these extra-legal patterns of policing, detention and deportation have failed to establish order or security. For one thing, antiimmigrant targeting has distracted police and officials from other, more fundamental sources of crime – foreigners are disproportionately the victims, not the perpetrators, of crime – but anti-immigrant measures’ general inability to improve security has citizens to simply accept criminal activity or seek alternative means to manage crime.40 This often means turning to forms of law enforcement that exist largely outside State regulation and, often quite proudly, use extra-legal forms of coercion to fulfil their mission.41 Crush reports, for example, that ‘A significant minority of the [South African] population is unprepared to leave the policing of migration solely to the authorities … a third of respondent would be prepared to personally try and prevent migrants from moving into their neighbourhood, operating a business, becoming a fellow worker or having their children in the same classroom.’42 Indeed, on 23 October 1997, approximately 500 street-traders marched through Johannesburg’s streets chanting slogans demanding a boycott of foreigners’ goods and the deportation of foreigners. This builds on an incident a few months earlier in which foreign traders were targeted and beaten and their goods stolen.43 The inability of the police to distinguish between non-nationals and citizens – due to either poor documentation or an unwillingness to recognise documentation – has also meant that everyone within the inner city has

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become a suspect. In Johannesburg, darker-skinned South Africans or those who cannot speak isiZulu or Sesotho are particularly vulnerable. Similarly, in rural areas, many (if not the majority) of South Africans are effectively undocumented and may be easily confused with non-nationals who live amongst them. Many South Africans are consequently arrested on immigration offences or targeted for harassment or extortion. In 1998, for example, Human Rights Watch found that 20 percent of those held in Lindela were in fact South Africans. Police deny the numbers remain that high, but admit that South Africans are regularly detained within the facility.44 Significantly, attempts to control crime through deportation are doing little to reassert South Africa’s territorial integrity, as non-nationals intent on staying in South Africa can capitalise on opportunities to buy their way out of police stations, detention facilities, and the trains meant to be taking them ‘home’. Even those who have been deported – especially those with cash – can easily find their way back into South Africa. Rather than acting as space for the extension of the rule of law, Lindela, together with broader patterns of irregular policing, has contributed to creating a corrupt, semi-privatised and largely ineffective ‘criminal justice’ system – involving border guards, police, private security firms and vigilante groups – that increasingly exists outside of formal regulation and oversight. As Mbembe writes, ‘Helped by the prevailing lack of discipline, bridges have been built between the soldiery and the worlds of crime and fraud.’45 There are initial signs of improvement following a parliamentary hearing on xenophobia in November 2004 and other government-sponsored workshops on countering xenophobia, but the networks of corruption will be difficult to break.

A Call for Pragmatism in Regional Policy Making The chapter has thus far contrasted the principles of human rights and regionalism to which South Africa is committed with the laws and practices designed to limit the movements of people between countries. Informed by an impracticable control ethos, efforts to control access to national territory are generating dysfunctional by-products that threaten to undermine the rights, health, security and prosperity of all the region’s residents. While I do not wish to offer highly specific recommendations, there are a number of general points that must be considered and addressed if South African migration and asylum policy hopes to realise the goals informing South Africa’s democratic transition, SADC, NEPAD and the African Renaissance. • There is a need to recognise the specific contexts in which South Africa’s laws operate, the country’s regulatory capacities and the potential byproducts of interventions. Strategies that may be effective in Europe, Australia and North America are unlikely to be so in environments without their natural borders or human resources.

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• Develop mechanisms for objective tracking of migration and asylum trends. Accepting that migration and immigration will continue – and that such movements can make important contributions to the regional economy – means shifting from a control ethos to an ethos of facilitation. The first step in doing this is developing an accurate understanding of migration flows and their potential social, economic and political effects. Rather than relying on politicians and methodologically flawed studies to generate estimates of migration and its impacts, efforts must be made to develop objective population scientists who can collect longitudinal and comparative data throughout the region. • Incorporate local governments into migration management. To make migration a developmental rather than a policing issue means expanding the locus of responsibility beyond national government agencies and departments. City governments in South Africa are, de facto, already addressing the effects of migration. They should be supported in their efforts and encouraged to consider migration-related policies that contribute to, rather than undermine, local, national and regional priorities. • Reconsider citizenship and residency laws. There is currently little public or political support for Eurozone-type rights of unrestricted movement or regional citizenship. Recognising, however, that these movements are taking place – and that many people spend the majority of their working lives in countries in which they are not citizens – suggests the need to rethink the terms under which people access social services, participate in decision-making and protect their rights. The South African government (together with its neighbours) speaks of halting ‘the marginalisation of Africa in the globalisation process and enhance its full and beneficial integration into the global economy’46 by promoting regional integration, the rule of law and respect for the rights of all. It also recognises that, in their way, migration and asylum policies can play a significant role in furthering these ends. Despite the 1999 White Paper on Immigration and its involvement in the Global Commission for International Migration, South Africa’s migration regime is unlikely to positively fill this role. Instead, it is generating effects that may benefit employers and corrupt officials, but are unlikely to promote the interests of South African citizens, non-nationals or refugees.

Notes 1. Global Commission for International Migration, Migration in an Interconnected World: New Directions for Action (Geneva, 2005). 2. T.R. Smith, The Making of the 1998 Refugees Act: Consultation, Compromise, and Controversy, Wits Forced Migration Working Paper Series, no. 5 (Johannesburg, 2003).

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3. Under the International Charter on Civil and Political Rights, even undocumented migrants (i.e. not refugees, asylum-seekers or legal migrants) have rights against arbitrary arrest or detention (Art. 5); the right to be treated with humanity and with respect (Art. 9); the right to equality before the courts and tribunals (Art. 10); the right to be recognised everywhere as a person before the law (Art.14); and the right against arbitrary deportation (Art. 16). Those in the country legally are afforded even greater protection. 4. While keen for the reputational and financial gains the World Cup promises, there are already concerns among Parliamentarians about the possibility of African footballers claiming asylum in South Africa. See, for example, B. Webb, ‘Asylum seekers a worry for 2010’, Pretoria News, 29 March (2006): 3. 5. J. Klaaren and B. Rutinwa, Towards the Harmonization of Immigration and Refugee Law in SADC, MIDSA Report Number 1, Queen’s University, (Kingston, 2004). 6. The Mfecane was part of a series of disturbances in the early nineteenth century among people living in what is now the eastern part of South Africa, which arose when the Zulu chief Shaka conquered the Nguni peoples between the Tugela and Pongola rivers. His conquests eventually resulted in large-scale displacement of people. The Group Areas Act of 1950 assigned races to different residential and business sections in urban areas while the Land Acts of 1954 and 1955 restricted non-white residents to specific areas. See J. Crush, A. Jeeves,. and D. Yudelman, South Africa’s Labour Empire: A History of Black Migrancy to the Gold Mine, (Boulder, 1992); and J. Crush, and C. Tshitereke, ‘Contesting Migrancy: the Foreign Labour Debate in Post-1994 South Africa’, Africa Today 48 (2001): 49–72. 7. Between 1989 and 1997 about 233 000 South Africans emigrated to the UK, USA, Canada, Australia and New Zealand. Figures from J. Crush and V. Williams, Making up the Numbers: Measuring ‘Illegal Immigration’ to South Africa, Migration Policy Brief No. 3, Southern Africa Migration Project (Cape Town, 2001) 8. Ibid. 9. See N. Machingambi,, ‘Experiences of Refugees in Cape Town’, in Forced Migrants in the New Johannesburg: Towards a Local Government Response, ed. L.B. Landau (Johannesburg, 2003), 109-11; and R. Ballard, ‘Preliminary Considerations on the Relationship between Refugees and the City of eThekwini’ in Forced Migrants in the New Johannesburg: ed. Landau, 103–8. 10. S. Peberdy, J. Crush, and N. Msibi, Migrants in the City of Johannesburg: A Report for the City of Johannesburg, (Johannesburg, 2004), 3. 11. T. Leggett, Rainbow Tenement: Crime and Policing in Inner Johannesburg, Monograph No. 78, Institute for Security Studies (Pretoria, 2003). 12. See Landau, L.B., ‘Urbanization, Nativism and the Rule of Law in South Africa’s “Forbidden” Cities’, Third World Quarterly 26, no. 7 (2005), 1115–34. 13. Recent research in Maputo, Mozambique describes a condition of ‘permanent transit’, in which Congolese migrants remain for years in a kind of limbo waiting to move elsewhere, surviving almost entirely from funds regularly supplied by family members in Kinshasa, Lumumbashi or Europe. Preliminary indications suggest similar patterns in Johannesburg and other South African cities. See, for example, D. Malauene ‘The Impact of the Congolese Forced Migrants’ “Permanent Transit” Condition on their Relations with Mozambique and Its People’, unpublished Master of Arts thesis in Forced Migration, University of the Witwatersrand, 2004. 14. F. Maphosa, The Impact of Remittances on Southern Zimbabwe’s Rural Political Economy, Wits Forced Migration Working Paper, No. 14 (Johannesburg, 2004) (http://migration.wits.ac.za/Maphosa.pdf) 15. L.B. Landau and K. Jacobsen, ‘Refugees in the New Johannesburg’, Forced Migration Review 19 (2004): 44–46.

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16. A 2003 study of refugees and asylum-seekers (the most detailed national data available) reports respondents’ average age to be thirty-one. See F. Belvedere, National Refugee Baseline Survey: Final Report, Community Agency for Social Enquiry (CASE), Japan International Cooperation and United Nations High Commissioner for Refugees (Johannesburg, 2003). 17. Ibid.; Landau and Jacobsen, A. Adepoju,‘Internal and International Migration Within Africa’, in Migration in South and Southern Africa, ed, P. Kok,, D. Gelderblom, J.O. Oucho and van. J. Zyl van (Pretoria, 2006), 26–46. 18. Belvedere, National Refugee Baseline Survey, 4. 19. Ibid., 5. 20. Landau and Jacobsen, ‘Refugees’. 21. See L.B. Landau, A. Bhamjee, K. Ramjathan-Keogh, E. Ramokhele, T. Polzer and G. Singh, Crossing Borders, Accessing Rights, and Detention: Asylum and Refugee Protection in South Africa, Report prepared on behalf of the South African Human Rights Commission (Johannesburg, 2005). 22. See, for comparison, Z. Bauman, Globalization: The Human Consequences (New York, 1998); S. Sassen, Globalisation and Its Discontents: Essays on the New Mobility of People and Money (New York, 1998); M.J. Gibney, ‘Liberal Democratic States and Responsibilities to Refugees’, American Political Science Review 93, no. 1 (1999), 169–181; M. Ruhs and H.J. Chang, ‘The Ethics of Labour Immigration Policy’, International Organization, 58, no. 1 (2004), 69–102. 23. N. J. Nkosi, ‘Influences of Xenophobia on Accessing Health Care for Refugees and Asylum Seekers in Johannesburg’, unpublished Master of Arts thesis in Forced Migration, University of the Witwatersrand, 2004; R. Pursell, ‘Access to Health Care Among Somali Forced Migrants in Johannesburg’, unpublished Master of Arts thesis in Forced Migration, University of the Witwatersrand, 2005. 24. Belvedere, National Refugee Baseline Survey. 25. Ibid. 26. Quoted in M. Reitz, ‘Alien Issues’, Indicators South Africa 12 (1994): 7–11 (quotation on page 8). 27. Landau and Jacobsen, ‘Refugees’. 28. N. Hunter and C. Skinner, ‘Foreigners Working on the Streets of Durban: Local Government Policy Challenges’, Urban Forum 14, no. 4 (2003). 29. See L.B. Landau, ‘Immigration and the State of Exception: Security and Sovereignty in Refugee-affected Africa’, Millennium Journal of International Studies 34, no. 2 (2005): 325–48. 30. South African Human Rights Commission (SAHRC), Illegal? Report on the Arrest and Detention of Persons in Terms of the Aliens Control Act (Johannesburg, 1999), 23–25. 31. I. Palmary, J. Rauch and G. Simpson, ‘Violent Crime in Johannesburg’, in R. Tomlinson, R.A. Beauregard, L. Bremner and X. Mangcu Emerging Johannesburg: Perspectives on the Postapartheid City, ed. (London, 2003), 133. 32. SAHRC, Illegal?, 3–4. 33. K. Jacobsen and S.K. Bailey, ‘Micro-Credit and Banking for Refugees in Johannesburg’, in Forced Migrants in the New Johannesburg, ed. Landau, 99–102. 34. Palmary, et al, ‘Violent Crime’, 112. 35. V. Southwell, ‘Protecting Human Rights: Recent Cases – Du Noon Expulsion of Foreign Nationals’, online report from South African Human Rights Commission, 2001 (http://www.sahrc.org) 36. B. Harris, A Foreign Experience: Violence, Crime, and Xenophobia During South Africa’s Transition, Violence and Transition Series, vol. 5 (Johannesburg, 2001). 37. Regardless of their country of origin, many migrants will claim to be from Mozambique or Zimbabwe so that their eventual deportation will leave them in a good position to re-enter South Africa.

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38. ‘When people want to go home, they don’t let you be deported until you pay them money. Home Affairs wants you to pay 100 to 400 Rands, whatever you’ve got. Otherwise, you just stay here [in detention]. They let people go without ID, just give them some money.’ Quoted in Human Rights Watch, ‘Prohibited Persons’: Abuse of Undocumented Migrants, Asylum-Seekers, and Refugees in South Africa (New York, 1998), 59. 39. N.D. Innocenti, ‘A Magnet for the Rest of the Continent’, Financial Times,13 April (2004): A5. 40. See I. Palmary, Refugees, Safety and Xenophobia in South African Cities: The Role of Local Government, (Johannesburg, Centre for the Study of Violence and Reconciliation 2002); Leggett, Rainbow Tenement; Harris, A Foreign Experience. 41. One of the most organised of these is Mapogo a Mathamaga, a national investigation and ‘goods recovery’ company that works largely outside the law, but regularly draws on police information and muscle. 42. J. Crush, ‘The Dark Side of Democracy: Migration, Xenophobia and Human Rights in South Africa’, International Migration 38 (2000): 110. 43. Palmary et al, ‘Violent Crime’, 112. 44. Interview with D. Louw, Director, Hillbrow Police Station, Johannesburg, South Africa, 18 July 2003. 45. A. Mbembe, On the Post Colony (Berkeley, 2002), 58. 46. New Partnership for African Development (NEPAD), ‘Nepad in Brief’ (http://www.nepad.org/en.html) (accessed 2 November 2004).

3 TALKING

NEW TALK: A LEGISLATIVE HISTORY OF THE REFUGEES ACT 130 OF 1998 A

Jonathan Klaaren, Jeff Handmaker and Lee Anne de la Hunt

 Introduction This chapter does not write the legislative history of the Refugees Act 130 of 1998 but rather a legislative history. The scope of this chapter extends only to relatively formal developments, such as the drafting of legislation and official policy documents, although we have supplemented these with other background materials as available. We argue that the legislative history of the Refugees Act demonstrates that non-state actors made a major contribution in establishing both the form and the content of legislation on refugee protection separate from migration policy in South Africa. Through this process as well as its result (the first South African Parliamentary statute), a new subject was inserted into the South African policy arena: refugee protection.1

Starting Points The principal piece of legislation dealing with cross-border entry effective in South Africa when the government and the United Nations High Commissioner for Refugees (UNHCR) signed the 1993 Basic Agreement2

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was the apartheid-era Aliens Control Act 96 of 1991. This Act was a manifestly unsuitable legislative framework for the purpose of refugee protection.3 Even in respect of international migration issues apart from refugee protection, immigration and constitutional lawyers widely regarded this Act as an unworkable, authoritarian and inaccessible piece of legislation.4 Above all, in the light of the 1993 Constitution, it was clear that the Aliens Control Act was unconstitutional in many respects.5 Amending legislation enacted in 1995 and which took effect in mid-1996 eliminated several sections of the Aliens Control Act that were of serious concern (including a prohibition on judicial scrutiny of Home Affairs actions).6 Nonetheless, even after the 1995 amendments, it remained clear that more substantial legislative reforms were needed. Indeed, in 1996, the then Deputy Minister of Home Affairs, Lindiwe Sisulu, was recorded as saying that a ‘complete overhaul of immigration policies is indispensable for the new democracy of South Africa’.7 In respect of refugee protection, more than an overhaul was needed – an entirely separate legislative framework would need to be drafted in a policy area previously unknown in South Africa. In 1995, the Regional Office of the United Nations High Commission for Refugees provided the Department of Home Affairs with a suggested draft Refugee Bill.8 This document was similar in form and content to the Zimbabwe Refugees Act of 1983, which the UNHCR had a role in drafting.9 The UNHCR was thus closely involved in the South African legislative drafting efforts from the beginning. To some extent, this UNHCR involvement flowed directly from its involvement in the repatriation of liberation movement exiles. The UNHCR involvement was also consistent with several of the international agreements that the new post-apartheid government was busy acceding to. In 1996, the South African government acceded to the 1951 United Nations Convention and 1967 Protocol Relating to the Status of Refugees, as well as to the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (hereinafter referred to as the 1969 OAU Convention).10 Towards the end of 1996, the Department of Home Affairs produced its own internal draft, known as the Second Draft of the Refugee Bill. The Department made the Draft available to individuals and organisations in civil society.11 This step was an unusual one for this department, which had not been known for its participatory processes. Civil society responded enthusiastically to the opportunity to comment. In a series of meetings facilitated by the South African Human Rights Commission (SAHRC) and Lawyers for Human Rights, members of a nascent consortium on refugee affairs met, workshopped and followed up with representatives of the Department. These meetings aimed to discuss drafting points regarding the Second Draft Refugee Bill as well as other issues of refugee protection policy.12 The attendance of Department of Home Affairs senior officials at events within this series of contacts was significant albeit inconsistent.13

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Although it contained several important innovations, the Second Draft did not represent a fundamental break with refugee determination policy as then practised at the Department of Home Affairs. For instance, the draft would have empowered the Minister of Home Affairs, in issuing asylumseekers and refugees with permits, to impose such conditions as he or she saw fit and to amend these conditions.14 Nonetheless, some provisions satisfied long-standing demands of refugee lawyers for elements of transparency and rationality. For instance, the Second Draft Refugee Bill assured an asylum-seeker access to information concerning his or her application, as well as reasons for a negative decision. Soon after the Second Draft Refugee Bill had been produced, the drafting process was put on hold. At the end of 1996, then Minister of Home Affairs Mangosuthu Buthelezi, appointed a Green Paper Task Team to consider all aspects of migration and immigration, including forced migration. The Task Team, chaired by Dr Wilmot James, then Director of IDASA (Institute for a Democratic Alternative in South Africa), included politicians, academics and representatives from labour and civil society. This Task Team further involved civil society by its decision to commission research reports on a number of relevant topics.15 The Team also held a seminar in the province of Mpumalanga in February 1997 to discuss refugee policy. Input at this seminar was in part provided by Professor James Hathaway, a Canadian legal academic.16 Hathaway also acted as a consultant to the Task Team in drafting its report. While the initial effect of the appointment of the Green Paper Task Team was to put the Department-based drafting process for refugee protection legislation on hold, the content of its resulting report gave a powerful impetus to even more broadly based drafting efforts. In May 1997, the Task Team submitted its Draft Green Paper on International Migration. One chapter of the Draft Green Paper, Chapter Four, dealt specifically with refugees. This chapter was heavily influenced by Hathaway and proposed a model of refugee protection that was rightsregarding, solution-oriented and temporary, with the sharing of the burden across all SADC member states. Indeed, the model of refugee protection contained in the Draft Green Paper largely reflects the thinking of Hathaway’s Centre for Refugee Studies at York University (Toronto, Canada). As a reaction to what was seen by many as a crisis in international refugee law, the ambitious ‘Reformulation Project’ was convened there under Hathaway’s leadership. The aim of this project was to re-conceive refugee protection ‘in a way that is reconcilable with the legitimate concerns of states, yet does not sacrifice the critical right of at-risk people to seek asylum’.17 Two fundamental principles of the model of refugee protection proposed by the project are: (1) collectivised protection based on the notion of ‘equal but differentiated responsibility’ and (2) a system of ‘solution-orientated, temporary protection’. Significantly, the model elaborated was a comprehensive one. Those associated with the Project stressed that no single aspect of the proposal

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should be considered in isolation from other aspects. While the Green Paper attempted to portray this holistic quality of its suggestions on refugee protection, this aspect did not always appear to be understood by the Green Paper’s audience.18

The Drafting Process The Draft Green Paper (which did not contain an actual draft bill) was published in the Government Gazette on 30 May 1997 with a request for public comments.19 In our view, this was the proximate start of the drafting process towards the eventual passage of the Refugees Act. A significant number of individuals and organisations responded to this request for feedback.20 All organisations and interested parties who made these submissions welcomed the Green Paper initiative towards establishing a coherent refugee policy and legislative regime. NGOs and representatives from the refugee community stated that the process should continue to be widely consultative, and that civil society should thereafter be involved through established structures in monitoring refugee policy and legislation. Every submission endorsed the proposal that refugee protection be separated from migration and immigration management. Nonetheless, the submissions did more than merely reflect back the content of Chapter Four of the Draft Green Paper. The human rights and constitutional focus of the Green Paper was strongly supported and there was general agreement that a flexible definition of refugees would facilitate the stated purpose of protecting refugees who had been victims of human rights abuses in other countries. The constitutional focus was demonstrated by the unanimous support for the proposal that persecution on grounds of gender and sexual orientation, disability and caste be incorporated into the definition. In supporting a rights-based approach, many submissions stated that refugee definitions and refugee rights should be clearly set out in legislation. In an important aspect, the submissions demonstrated a clearly divergent viewpoint from that apparently held by the drafters of the Green Paper. Most of the submissions criticised the notions of temporary protection and collectivised protection put forward in the Green Paper. The content of this critique came in several forms. The critics of the Green Paper position on these issues noted that asylum is by nature temporary, since a refugee only requires protection for as long as he is unwilling or unable, for defined reasons, to avail himself or herself of the protection of his or her country of origin or nationality. When circumstances change, protection may no longer be required. Critics also pointed out that, in the South African (and African) context, ‘temporary protection’ may mean something different from how the term is understood in European and North American countries that have not ratified the 1969 OAU Convention, but which have

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taken its definition and used it to afford a minimalist form of protection to certain refugees (for example, refugees forced to flee the Balkans). Taking this line of criticism even further, some comments argued that the adoption of the Green Paper model would increase confusion and result in the lowering of protection standards.21 These critics held the view that moving to a regional protection of refugees as proposed by Chapter Four of the Green Paper and its underlying model would inevitably lead to standards of the lowest common denominator in terms of refugee rights. Both as a matter of politics and as a matter of principle, the authors of a number of comments on this part of the Draft Green Paper were thus sceptical of the concept of collectivised protection. Nonetheless, no one questioned the benefits of cooperation between members of the Southern African Development Community (SADC) with regard to refugee protection. Indeed, a number of submissions noted that burden-sharing, as contained in the 1969 OAU Convention definition, should remain a goal, and that countries of the region should work together to prevent refugee flows and to find solutions to existing problems. Still, these critics stressed that South Africa could not compromise its obligations to refugees within its borders. The debate around the proposals and ideas contained in Chapter Four of the Green Paper begun in the process of public participation then moved to a Conference on the Green Paper organised in Cape Town by the Southern African Migration Project/IDASA and held in Cape Town in October 1997. Up until this event, the public dialogue had encompassed both the migration policy and the refugee protection aspects of the Green Paper. However, as the Draft Green Paper itself recognised, a consensus was developing to the effect that issues relating to refugee policy and legislation needed comprehensive discussion in a separate forum. The Draft Green Paper recommended that two separate White Papers (leading to separate projects of legislative reform) be written: one on migration policy and one on refugee protection.22 While the Department of Home Affairs later made it clear (in a move widely perceived as backtracking on reform of migration policy apart from refugee protection) that the Draft Green Paper was to be regarded as a ‘consultative document’ and was not the government’s official policy position on migration matters, the Department nonetheless committed itself to the Draft Green Paper’s suggestion for dual-track White Paper processes. Indeed, Home Affairs Director-General Piet Coleyn made this commitment publicly at the October 1997 ‘Green Paper Conference’. This confirmation and its acceptance by civil society set the stage for further development in terms of drafting South African refugee protection legislation. In May 1998, the Minister of Home Affairs appointed a White Paper Task Team for Refugee Affairs. The Team included five representatives from (collectively) UNHCR, the South African Human Rights Commission, the Commission on Gender Equality and civil society,23 together with three representatives of the Department of Home Affairs. The relatively high

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proportion of civil society personnel in the composition of the Task Team was mirrored in the non-Departmental influence and participation in the work of the Task Team. Although the Task Team was pressed into finishing its work within a very short space of time, there was nevertheless a substantial amount of input from civil society during the process. To a great extent, this input and resulting influence occurred by virtue of the direct participation of civil society members on the Task Team. An additional instance of civil society influence was a workshop held by the Legal and Policy subcommittee of the National Consortium for Refugee Affairs (NCRA)24 in Pretoria on 29 May 1998.25 This workshop26 critically addressed issues presented by a Third Draft Refugee Bill. This Third Draft was initially drafted by the Department and was then presented to the Refugees White Paper Task Team. While it differed substantially from the Second Draft Refugee Bill, it nonetheless underwent substantial revision itself through the attentions of the White Paper Task Team. By the end of this process, the resulting legislation of the Task Team covered topics that either had not been present in earlier drafts or that had been very briefly treated, such as re-conceiving the administrative structure for status determination, a fast-track procedure to deal with claims felt to be manifestly unfounded, abusive or fraudulent, detention of asylum-seekers and refugees, gender issues, legislative incorporation of a refugee-rights regime, and local integration and repatriation issues. The Task Team devoted attention to specific wording and drafting, and produced a detailed and comprehensive piece of draft legislation. The Draft Refugee White Paper and its accompanying Draft Refugee Bill 1998 were then published for comment by the Department of Home Affairs on 19 June 1998.27 Comment on these documents was requested by 20 July. In spite of this limited time frame, no fewer than thirteen separate organisations and government departments made responses to the White Paper and Draft Bill.28 While the reaction to the work of the White Paper Task Team was on the whole favourable, there were both general and particular points of concern raised. On the whole, a shift in the discourse had taken place. The concerns raised were no longer focused on collectivised protection (which the Task Team’s Draft Bill did not adopt) or temporary protection (which the Draft Bill did not clearly provide for). Instead, the issues raised were mostly about implementation. Thus, to a great degree unnoticed in the fray, an implicit rejection of the premises of the Reformulation Project had occurred. Without temporary protection and collectivised protection, refugee protection policy in South Africa was not falling into the line set out for it within the Draft Green Paper. Were we to identify the cause of this shift, we would point to the involvement of civil society (in the form of both legal professionals and non-governmental organisations) and the willingness of government (at least within this specific policy process) to partner with civil society.

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As part of this focus on implementation, one set of responses reflected widespread concern that the refugee status determination body be assured of its independence from the Department of Home Affairs and that it be free from political interference.29 These responses advocated that the Minister and Director-General’s authority for making determinations on asylum, once delegated, remain final. The concern was that political officials not be permitted to over rule decisions made by a refugee determination officer.30 Likewise, a number of organisations expressed a general concern over the treatment that asylum applicants and recognised refugees would receive under the new legislative regime. These comments argued that specific legislative incorporation of certain rights (the list of rights guaranteed under the 1951 Convention) was necessary. Additionally, the issue of detention and placement of refugees and asylum-seekers began at this time to emerge as a point of contention. The introduction of camps into South African refugee policy and practice was discouraged, with one commentator noting that Mozambicans who arrived in South Africa constituting a mass influx had been accommodated without resorting to such measures.31 A further source of concern was that the provision for establishing reception centres was unclear, particularly in terms of resource implications attached to such facilities, and might unjustly restrict freedom of movement.32 Finally, there was concern raised over the right of persons to be naturalised within a reasonable period. Indeed, this point (which linked back to the temporary protection debate) remained a matter for debate, even though it was now stated in terms that emphasised certainty of the prospects for individual integration. In response to the lack of clarity of the Bill on this topic, it was proposed that, given the long wait for refugee status determination, a period of five years (after which one was entitled to apply for naturalisation) should commence from the time the asylum-seeker first established residence in South Africa.33 A further proposal wished to clarify the process and urged that there be a ‘specific and complementary set of criteria for refugees applying for naturalisation’.34 Justifications for this insistence on naturalisation referred to the insecurity that temporary status accorded under the current system. Other concerns raised in the public comments about the White Paper were more particular and specific. The perceived lack of administrative justice accorded to asylum applicants was raised. Some submissions argued that specific reference be made to the rights of fairness and transparency in decision-making.35 Another concern revolved around exclusion, the suggestion being that the refugee determination procedure and criteria ought to specifically acknowledge developments in international law relating to war crimes.36 Finally, there were also concerns over issues relating to cessation of refugee status. Some comments took care to point out that a decision by a refugee to return voluntarily to the country of origin to test the waters should not automatically lead to cessation.37

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Considering and responding to these submissions, the Task Team amended the White Paper in several, mostly institutional, respects. Perhaps most importantly, the Team made several textual changes in order to bolster the independence of the Appeal Board. In addition, the Task Team proposed a national consultative body to act as a bridge between government and nongovernmental organisations’ concerns, a Refugee Council. Following these amendments, the White Paper, together with a Draft Bill, was submitted to Cabinet for approval to be tabled in Parliament. Cabinet decided to remove the provision allowing naturalisation after five years, a change effected by the State Law Adviser, who revised the Draft Bill. The Minister of Home Affairs then presented a version of the Bill to the Parliamentary Portfolio Committee on Home Affairs in September 1998.

Parliamentary Consideration The submission of the draft legislation in front of a parliamentary committee allowed another opportunity for further substantive comment from various organisations. Based largely on the March and May 1998 workshops, the NCRA presented a summary of outstanding concerns to the Portfolio Committee in October 1998. The concerns raised by the NCRA were largely technical and focused on certain definitions and language used in the Bill. It was believed that interpretation could have prima facie negative consequences for asylum applicants or recognised refugees.38 Continuing concerns were also raised relating to the administrative and political independence of asylum determination (and appeal) structures, the rights of applicants in the determination procedure and of refugees,39 powers of the Minister to intervene in the procedure,40 an overly broad interpretation of exclusion41 and the rights of refugees’ dependants.42 The NCRA made recommendations in respect of the proposed asylum procedure with the intention of making the procedure less costly and administratively more efficient, and proposed that there be an obligation to report to Parliament on the number of persons detained under the Act. Of serious concern to the NCRA and to the UNHCR were the potentially ‘far-reaching implications’ of a clause in the Bill, that it was feared would ‘significantly widen the scope of exclusion and cessation’ by treating a refugee who contravened the conditions of his permit as a ‘prohibited person’.43 This last NCRA concern and others were addressed in public hearings held by the Parliamentary Portfolio Committee on Home Affairs. The Committee later incorporated changes based on many of these concerns in their amendments to the draft Bill.44 Nonetheless, some aspects of the final legislation continued to be matters for concern to the NCRA. However, by this point in the process, members of civil society were primarily fighting to retain certain features of the Bill that they found favourable as well as attempting to address some of the implementation issues of concern already

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identified in statutory language. One example of the former stemmed from the attempted removal (by representatives of the Department of Home Affairs) of the rights of asylum applicants to an oral hearing and to be legally represented.45 An example of the latter was the NCRA’s attempt to influence the decision to provide refugees not with South African identification documents similar in appearance to an identity card (as defined in the Identification Act 68 of 1997) but rather with ‘an identity document … in the prescribed form’.46 After passage by Parliament, President Mandela assented to the Refugees Act 130 of 1998 on 20 November 1998.

Conclusion The NCRA continued to worry that the Act left significant matters to Ministerial regulations. These matters included the manner in which refugees are to be dealt with during a situation of ‘mass influx’ (and the criteria that will be used to determine such an ‘influx’), the measures taken to deal with ‘manifestly unfounded applications’, the circumstances in which refugees will be repatriated and the method of implementing the Act. This worry turned out to be a founded one. An assessment of the regulations and the involvement (or lack thereof) of civil society in their drafting is beyond the scope of this chapter, which limits itself to the influence and effect of civil society within the drafting history of the Refugees Act itself.47 Still, we can note here that the Refugees Act was only brought into effect nearly eighteen month after it was assented to.48 The formulation and implementation of the regulations in terms of the Refugees Act stood in sharp contrast to the process of drafting the legislation itself. When the regulations were finally published on 1 April 2000, their content was a surprise to many in the field. Due to the involvement of several energetic American immigration officials in their drafting, the regulations were perceived more as a product of government to government (as well as UNHCR) drafting efforts than as the fruit of a public consultation process. This contrast with the legislative drafting only deepened as refugee advocates within civil society began to examine the content of the regulations made. They identified at least four principal areas of criticism. Most infamously, the regulations prohibited asylum-seekers from working or studying while on an asylum-seeker permit. The regulations also essentially placed the burden on the refugees themselves to provide interpreters, allowing the Department to escape its obligation where not practicable. And they perpetuated the uncertainty of refugee status in South Africa, both by failing to provide clearly for the renewal of permits and by providing for refugee documentation to last for only a two-year period. As the experience with the regulations as well as subsequent issues demonstrated, one can hardly say that the history of the Refugees Act was

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complete at the point of enactment. Indeed, the history of the Act would not be finished even with a full account of its implementation.49 For one thing, as has been shown in this chapter, the development of refugee protection legislation has always nested somewhat uncomfortably in South Africa within the development of migration policy legislation. This continued to be the situation with the Refugees Act through the highly contested passage of the Immigration Act 13 of 2002 in May 2002. Indeed, one of the earlypublished versions of the Minister of Home Affairs’ Draft Immigration Bill clearly did not take into account the Refugees Act and its newly implemented system of refugee status determination. In several respects, critical commentators argued, the enactment of such a version of immigration legislation would have represented a severe setback for refugee protection in South Africa. If the Bill were enacted, immigration legislation would reassert its priority over refugee protection legislation, refugees’ rights to permanent residence would be decided by regulations made in terms of the Immigration Act, the asylum-seeker permit would be eliminated and the independent specialised refugee protection appellate tribunal would be abolished.50 While the worst of these problems were avoided or at least mitigated, the Refugees Act remains precariously positioned within a new set of structures and policies that remain at this point full of at least as much potential danger as promise, from the refugee protection point of view. The lack of civil society involvement in the drafting of the regulations and the content of the regulations themselves may well be the result of a part of the law-making process that, due to a lack of public consultation, was more firmly within the control of the Department of Home Affairs, and thus less influenced by the norms of transparency and accountability introduced by South Africa’s transition to constitutional democracy. Whatever the cause that social scientists and historians will ultimately ascribe to the recent state-society conflict over the implementation of the Refugees Act, we conclude that, after having talked the talk, the state did not walk the walk. Still, this should not cause one to lose sight of the significant degree of participation of civil society in the creation of the new talk, not least for the purposes of interpretation and advocacy within the policy realm thus created. In particular, we would argue that the civil society involvement in the drafting of the Refugees Act has provided refugee rights’ advocates with a number of legal and rhetorical resources to use in these current and ongoing conflicts.

Notes 1. Some material in this chapter is drawn from J. Handmaker, ‘Who Determines Policy? Promoting the Right of Asylum in South Africa’, International Journal of Refugee Law 11, No.2 (1999), 290–309. For further discussion on the development of a South African refugee discourse, see L. de la Hunt, ‘Refugees and Immigration Law in South

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2.

3.

4.

5. 6.

7. 8. 9.

10.

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Africa’, in Beyond Control: Immigration and Human Rights in a Democratic South Africa, ed. J. Crush (Cape Town, 1998); L. De la Hunt, ‘Refugee Law in South Africa: Making the Road of the Refugee Longer?’ in, World Refugee Survey, US Committee for Refugees (Washington, 2002), 46–51; J. Klaaren, ‘Contested Citizenship in South Africa’ in The Post-Apartheid Constitutions: Perspectives on South Africa’s Basic Law, eds. P. Andrews and S. Ellmann, Johannesburg, 2001: 304–325; ‘The Development of Refugee Law and Policy in South Africa: a Commentary on the 1997 Green Paper and 1998 White Paper/Draft Bill,’ International Journal of Refugee Law 10, No. 4 (1998): 700–724; and T. R. Smith, ‘The Making of the 1998 Refugees Act: Consultation, Compromise, and Controversy’, Wits Forced Migration Working Paper Series, no. 5 (Johannesburg, 2003). Basic Agreement Between the Government of the Republic of South Africa and the United Nations High Commissioner for Refugees Concerning the Presence, Role, Legal Status, Immunities and Privileges of the UNHCR and Its Personnel in the Republic of South Africa. In Baramoto v. Minister of Home Affairs 1998 (5) BCLR562, 572 (W), the Department noted that this Basic Agreement was concluded on 6 September 1993. The administrative arrangements that provided refugee protection from 1994 to 2000 are described in Chapter 4 of this collection on ‘Refugee Status Determination Procedures in South African. Human Rights Watch, ‘Prohibited Persons:’ Abuse of Undocumented Migrants, Asylum Seekers and Refugees in South Africa, (New York, 1998) 160; J. Crush ed. Beyond Control. J. Klaaren, ‘Immigration and the South African Constitution’, in Crush, ed., Beyond Control, 55–78. Aliens Control Amendment Act 76 of 1995. Before its amendment, section 55 provided that a court of law was not to have jurisdiction over a decision taken under the Act. This was an example of a so-called ‘ouster clause’. Subsequent to the elimination of this patently unconstitutional blanket prohibition on judicial review, a number of departmental regulations and decisions taken under the Act by the Department of Home Affairs were made the focus of administrative review. Indeed, it is arguable that the main driver of migration reform (as opposed to refugee protection development) in South Africa has been the judiciary. The 1995 Amendment Act also provided for several legislative provisions that aimed to protect human rights. One was the mandatory written review by a judge of the High Court in cases of detention of persons for more than thirty days in terms of the Act. This provision has largely been ignored by the Department of Home Affairs. See Human Rights Watch, Prohibited Persons, 98–102; see also South African Human Rights Commission v. Minister of Home Affairs and Dyambu (Pty) Ltd t/a Lindela Repatriation Centre, Case No. 1999/28367, Witwatersrand Local Division. Mayibuye, African National Congress, South Africa, August 1996. G. Al-Omari, ‘Comments on the South African Refugee Act 1994, unpublished working draft, 1996. For a regional and historical perspective, see B. Rutinwa, ‘Asylum and Refugee Policies in Southern Africa: a Historical Perspective’, unpublished paper presented at a workshop on ‘Regional Integration, Migration, and Poverty’ of the Southern African Regional Poverty Network, Pretoria, 25 April 2002. The 1951 United Nations Convention on the Status of Refugees, the 1967 Protocol to the UN Convention on the Status of Refugees (both ratified in the Senate on 14 September 1995, Hansard col. 2966, and in the National Assembly on 11 October 1995, Hansard col. 4361), and the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (ibid). These treaties were formally acceded to in January 1996. Section 6 of the Refugees Act states that that Act must be ‘interpreted and applied with due regard to’ these treaties among others.

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11. See, for example, Second Draft: Bill (updated on 23 September 1996). 12. See, for example, Letter from N. de Villiers, Legal Resources Centre, to DirectorGeneral P. Colyn, 3 September 1996 (confirming aspects of a discussion held 29 August 1996); Minutes of a Meeting Held at the Offices of the South African Human Rights Commission with the Department of Home Affairs on 26 February 1997. 13. A senior official from the Department did attend a workshop held at the South African Human Rights Commission on 14 November 1996. LHR and Wits Refugee Research Programme, ‘Asylum and Naturalisation: Policies and Practices’, unpublished workshop report, 1996. However, senior officials of the Department were absent from a follow-up workshop specifically held to discuss the proposed legislation on 23 November 1996. 14. L. De la Hunt, ‘Comments on the Second Draft of the Refugees Bill’, unpublished paper presented at the Human Rights Commission’s Workshop on the Second Draft Refugees Bill, Johannesburg, 1996. 15. The Southern African Migration Project successfully tendered for research support and assistance towards their project of drafting the Green Paper (SAMP) partners include IDASA and Queens University, Canada. 16. J. Hathaway, ‘Towards the Reformulation of International Refugee Law: a Model for Collectivized Protection and Solution-oriented Protection’, unpublished submission to the South African Green Paper Task Team on International Migration, 1997. 17. J. Hathaway and R.A. Neve, ‘Making International Law Relevant Again: a Proposal for Collectivized and Solution-Oriented Protection’, Harvard Human Rights Journal 10 (1997): 115. 18. Some within the NGO community understood this interdependent aspect but opposed the model nonetheless. These advocates worried that government would pick and choose amongst the interdependent elements of refugee protection. 19. GG 18033. 20. Contributors included the Black Sash Trust, International Organisation for Migration (IOM), Committee of University Principals, Federation of Unions of South Africa, Old Mutual, European Parliamentarians for Africa (AWEPA), National Coalition for Gay and Lesbian Equality, Town Council of Midrand, Selfemployed Women’s Union, Amnesty International (South Africa), Cape Times, UNHCR, Centre for Development and Enterprise, Chamber of Mines of South Africa, Gauteng Refugee Forum, Lawyers for Human Rights, International Education Association of South Africa, the Transvaal Agricultural Union, Refugee Research Programme, Cape Town Refugee Forum, Cape Town Refugee Committee, Congress of South African Trade Unions (COSATU), Centre for Applied Legal Studies, South African Human Rights Commission and various national and provincial government departments and institutions, universities, employers’ associations and individuals. In total, fifty-three separate sets of comments were received by the Department of Home Affairs. 21. A lively debate exists in the literature regarding this particular aspect. Compare Barutciski, ‘The Development of Refugee Law’, 714–17 (‘international activists involved in the South African debate mistakenly believe the Green Paper is encouraging the Government to formalize the type of protection system reserved for refugees from Bosnia-Herzegovina in the European Union’) with J. Handmaker, ‘Who Determines Policy?’, 301 (‘concerns motivating NGOs to lobby against temporary protection were those of human rights and psycho-social harm and lobbying did not amount to advocating permanent residence for undocumented migrants’) as well as J. Handmaker, ‘No Easy Walk: Advancing Refugee Protection in South Africa’, Africa Today 48, no. 3 (2001): 97–101.

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22. On 31 March 1999, the South African White Paper on International Migration was released, followed by the Draft Immigration Bill on 15 February 2000. Both are available at: www.lhr.org.za (Refugee Rights Project). 23. The civil society members were members of the National Consortium for Refugee Affairs. One member was a representative of Lawyers for Human Rights and another, Lee Anne de la Hunt, was the Director of the Legal Aid Clinic at the University of Cape Town. An account of the history and development of the NCRA is available at http://www.ncra.org.za. Representatives of the UNHCR, the SAHRC and the Commission on Gender Equality (CGE) might be classed as civil society members and in any case were certainly receptive to proposals from the members of civil society. The UNHCR and to a lesser extent the SAHRC were heavily involved in the development of refugee protection policy. 24. With the assistance and continuing presence of the UNHCR, the regional serviceprovider refugee forums and the non-governmental organisations largely focusing on policy formed themselves into the NCRA. The first chairperson was Jody Kollapen, Commissioner of the SAHRC. 25. It was intended that ‘consensus points arising from a Workshop at the African Window in Pretoria [would be] considered as approved policy guidelines of the NCRA’, LHR, ‘Workshop on the Third Draft Refugee Bill’, unpublished report, Pretoria, 29 May 1998. A further seminar was held in Cape Town in September 1998 and hosted by the UCT Legal Aid Clinic. 26. Some of the material presented at that workshop is also contained in the present collection. 27. Draft Refugee White Paper, No. 18988, Notice 1122 of 1998 (South Africa). 28. These included the Department of Home Affairs (Refugees Section, Permanent Residence Section and Pretoria District Office); UNHCR; international NGOs such as Human Rights Watch; the Refugee Studies Programme at Oxford University; and South African organisations such as the South African Human Rights Commission, Legal Resources Centre, Centre for Southern African Studies (University of the Western Cape), Centre for Applied Legal Studies (University of Witwatersrand), Lawyers for Human Rights, the Law Society of the Transvaal and Southern African Migration Project. 29. See Lawyers for Human Rights, ‘Comments on the Draft Refugee White Paper (Notice 1122 of 1998, South Africa)’, unpublished, Pretoria, July 1998 and Centre for Applied Legal Studies, ‘Comments on the Draft Refugee Bill’, unpublished, Johannesburg, 21 July 1998. 30. Concern in this regard was over section 4(3) of the draft legislation, which provided that, while the Director-General ‘may delegate any power granted to him or her under this Act’, it did ‘not prevent the Director-General from exercising the power in question himself or herself’. 31. Lawyers for Human Rights, ‘Comments on the Draft Refugee White Paper’, 6. 32. South African Human Rights Commission, ‘Comments – Draft Refugee Bill’, unpublished, Johannesburg, June 1998, at p. 7. 33. Human Rights Watch, ‘Comments – Draft Refugee Bill’, unpublished, London, 1998, at p. 8. 34. Lawyers for Human Rights, ‘Comments’, 13. 35. Legal Resources Centre, ‘Comments by Legal Resources Centre’, unpublished, Cape Town, 20 July 1998. 36. Human Rights Watch recommended that section 2(4)(a) of the draft legislation be expanded to include a wider definition of war crimes, developed since the drafting of the 1951 Convention. Human Rights Watch, ‘Submission to the White Paper Task Group on Refugee Policy’, unpublished, London, July 1998, at p. 4. 37. UNHCR, ‘Comments on the Draft White Paper’, unpublished, Pretoria, 20 July 1998, at p. 1, A2(b).

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38. For more detail, 23 October comments of National Consortium for Refugee Affairs, ‘Summary of Concerns, Draft Refugee Bill 1998: Version Reviewed by the State Law Advisors’, unpublished, Pretoria, 1998. 39. The NCRA (unsuccessfully) advocated for the right to naturalisation within five years of lodging an application, the right of a child born to refugee parents in South Africa to South African citizenship, and the right of a refugee to be informed of the right to make a submission with regard to a decision to withdraw refugee status. 40. While it was acknowledged that the Minister ought to be able to intervene in circumstances where an applicant was a threat to national security (also provided for in the Bill), it was felt that, in other provisions (e.g. at the appeal stage), the power to intervene was too wide. Furthermore, in the making of Regulations, it was felt that they ought to ‘be promulgated through a process involving the independent statutory authorities created by the Bill’. 41. Section 4 of the Bill (relating to exclusion from refugee status) provided that ‘a person does not qualify for refugee status … if there is reason to believe that he or she …’, whereas international law clearly requires serious reasons. Despite lobbying, this provision remained unchanged in the final Act. 42. Section 33 of the Bill differed substantially from a similar provision in a previous draft of the Bill that was believed to comply with international law and was later changed by the Portfolio Committee. Concerns that were raised by the NCRA related to serious, alleged breaches of international refugee law (and principles) and the family unit principle. 43. The text contained in this draft of the Refugee Bill differed substantially from previous drafts (including the Draft Bill annexed to the White Paper), which provided that one be ‘guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding five years, or to both a fine and such imprisonment’), rather than ‘be regarded as a prohibited person’. 44. Portfolio Committee Amendments to the Refugees Bill No. 135a of 1998. 45. Ibid., Clause 24, No. 2, p. 4. 46. Ibid., Clause 30, No. 1, p. 4. 47. The most notable feature of the regulations implementing the Act is undoubtedly their prohibition on work or study by asylum-seekers. This was one side of the ‘bargain’ that the regulations struck, with the other side being that of a fair, timely refugee determination process. Any evaluation of these regulations should, in our view, assess both the constitutional limits on the first side of the bargain and the apparent administrative and capacity shortfalls on the second side with respect to the practical implementation of the regulations. See also Watchenuka (identifying this issue within both the regulations and decisions of the Standing Committee). 48. On 31 March 2000, President Mbeki declared the commencement date for the Refugees Act to be 1 April 2000. See R 22 of 2000 in GG 21075 (6 April 2000). The Regulations were made on 6 April 2000. 49. An important part of the history of the Refugees Act is also the story of the backlog project: see Chapter 5 of this collection. 50. See J. Klaaren, ‘Preliminary Analysis of the Effect of the Draft Immigration Bill on the Refugees Act’, unpublished paper presented at the University of Western Cape workshop: ‘Forced Migrants in the New Millennium: Problems, Prospects, and Solutions’, Cape Town, 2001.

4 REFUGEE STATUS DETERMINATION PROCEDURES IN SOUTH AFRICAN LAW Jonathan Klaaren and Chris Sprigman

 Introduction This chapter critically investigates the South African procedures for determining refugee status that were in force from 1994 until the 1 April 2000 implementation of refugee legislation, as well as the intended changes to these procedures introduced by the Refugees Act 130 of 1998. After a brief historical overview of its development, Part I sets out an understanding of how the administrative system of refugee status determination operated during the period from 1994 to 2000.1 Part II then closely examines this system – which we term the centralised bureaucratic model – and develops an argument for an alternative, decentralised model of refugee determination based on individualised refugee determination hearings. From 1996, the refugee rights community offered a version of this decentralised hearing-based model in advocating for the refugee status determination system that was eventually adopted in the Refugees Act 130 of 1998. Part III then examines the provisions of the Refugees Act relating to refugee status determination procedures, as well as the subsequent implementing regulations. It argues that, properly interpreted in terms of a decentralised hearings-based model, the Act represents an important step forward in South African refugee protection. The main thrust of this chapter is to show that the best interpretation of the Act requires that the Department of Home Affairs put into place a hearings-based system similar to the one outlined in this chapter. We believe that the Act – as interpreted against the background of the right to just

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administrative action accorded to all persons, refugees as well as citizens, by the Constitution – requires that applicants for refugee status be given hearings at which legal representation is allowed, be provided with written reasons when their applications are denied, and be accorded administrative review and full access to the courts to appeal adverse determinations. We believe, moreover, that everyone – the applicants, the Department of Home Affairs and South Africa as a whole – would be better off if expensive and protracted constitutional litigation over the meaning of the Act were avoided. The Department’s regulations largely put into place the decentralised, hearingbased determination system we outline. We believe, and we hope to show in this chapter, that the system we favour is not only constitutionally required, but is also in the best interests of both applicants and the Department of Home Affairs. Accordingly, the Act and its implementing regulations should largely be welcomed and should be interpreted in terms of the decentralised hearings-based system we have identified.

Part I: 1994–2000 Procedures for Refugee Status Determination in South Africa History The initial post-apartheid developments regarding refugee protection were at the level of international law.2 On 6 September 1993, South Africa signed a Basic Agreement with the United Nations High Commission for Refugees (UNHCR).3 This followed an earlier Tripartite Agreement between Mozambique, South Africa, and the UNHCR regarding the voluntary repatriation of refugees.4 By 14 April 1994, all operational officers of the Department of Home Affairs were given a set of guidelines for the refugee status determination of Mozambicans in South Africa.5 Within six months, the scope of these administrative arrangements was widened to include all persons claiming refugee status.6 By 23 September 1994, asylum-seekers in South Africa were protected at the level of formal internal departmental procedures, procedures making reference to the international law definition of a refugee.7 This marked the first instance in which the international law of refugee status became formally applicable to persons seeking refugee status in South Africa. These formal legal changes were paralleled by growth in the international and national bureaucracies concerned with refugee adjudication in South Africa. In 1991, the UNHCR set up a branch office in Pretoria. This office later expanded to be a regional office, with coverage extending beyond South Africa. Within the Department of Home Affairs, a separate organisational unit of Refugee Affairs, the ‘sub-directorate: Refugee Affairs’, was created between 1993 and 1994 and given separate funding. In the period since 1994, the precise administrative arrangements of Home Affairs

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have varied significantly.8 Nonetheless, the legal regime applicable to refugee status adjudication has remained the same. This mixture of administrative arrangements – the asylum procedures – essentially constituted a legal regime governing the determination of refugee status. Courts reviewed decisions of the Department of Home Affairs with respect to several asylum applications pursuant to these procedures.9 Since both the Department and the courts have recognised them as binding, the asylum procedures probably attained at least the legal status of a legitimate expectation on the part of a person applying for refugee status. In other words, if the Department were to have revoked these asylum procedures unilaterally, a court would probably have struck that action down. Although the procedures of the Refugees Act replaced these asylum procedures on 1 April 2000, the asylum procedures remained relevant to the large number of persons who lodged applications in terms of these procedures.10 While the Department’s asylum procedures (described more fully below) could thus have been fairly described as firmly established, it is nonetheless also clear that the Department’s refugee adjudication regime operative from 1994 to 2000 did not fit comfortably within South African immigration law. In terms of the Aliens Control Act 96 of 1991, the sole parliamentary statute determining the (substantive) regulation of immigration into South Africa, asylum-seekers were technically treated as ‘prohibited persons’, but were granted permission to reside and work in the Republic in terms of section 41(1). This section authorises the Minister, as a matter of discretion, to issue temporary permits to immigrants seeking admission, in spite of their status as prohibited persons.11 This situation did not change dramatically with the passage of the Refugees Act 130 of 1998. Since 1994, prospects for refugee legislation had gone through several ups and downs. The Act itself was introduced and passed within a period of only a few months at the end of 1998.12 Yet nearly a year and a half passed before it was brought into operation. Even after the coming into legal effect of the Refugees Act, the influence of the 1994–2000 system persisted. While the formal law may change with the stroke of the President’s pen giving a date of commencement to the Act, the informal law as administered by the Department of Home Affairs was unlikely to and did not change with such speed.

The 1994–2000 Asylum Procedures The remainder of this Part outlines the regime of refugee status determination procedures that existed from 1994 to 2000.13 It identifies six key elements of this system: the pre-interview stage, the initial interview, the pending decision stage, the Standing Committee decision, the Refugee Affairs Appeal Board decision, and the procedure for manifestly unfounded applications. As part of a critical model-building investigation, the regime as sketched here is a depiction of the Department’s best practice during this

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time period. Thus, this description does not limit itself solely to formal legal instruments, but neither does it document the frequent systemic lapses in complying with these asylum procedures. In this way, this chapter engages with the ideal type of the refugee status determination regime offered by the Department during this period.

Pre-interview Stage First, the Department of Home Affairs did not have a proactive policy of asking persons with whom it had contact whether they were refugees. For instance, a person held pending removal at Lindela, the privately run but Department-authorised detention and repatriation centre in Krugersdorp, had to affirmatively ask for an investigation into his or her refugee status before that process was initiated. A detainee claiming refugee status at Lindela would be taken to the Department of Home Affairs refugeereceiving office established in Braamfontein (at least one hour away) to formally claim such status, after which the asylum-seeker would be released from detention. The Home Affairs internal policy document dealing with this point articulates the Department’s policy: an investigation of a detainee’s possible refugee status would be undertaken only ‘if it becomes apparent during the investigation into his residence status that he may be a refugee as defined in the Basic Agreement between the Government of the RSA and the United Nations High Commissioner for Refugees’.14 Since the investigations into residence status were, as a matter of practice nonexistent or perfunctory, most asylum-seekers initiated the process of determining their status themselves.15 Home Affairs’ internal directives also mandated that a refugee must apply for an initial asylum interview at an office of the Department as soon as possible after entering the country. An interview was usually given one to three months after it was requested. Indeed, it was Department of Home Affairs policy that no asylum claims could be made outside the territory of South Africa.16 For this reason, there were no asylum requests entertained at South African embassies outside the country nor was there any programme to locate and interview asylum applicants in receiving countries other than South Africa. During this pre-interview stage, the asylum-seeker had no special legal protection other than protection from deportation.

The Interview Secondly, interviews of applicants for refugee status were conducted by specially chosen and trained immigration officers (referred to herein as ‘intake officers’). The Department established four Regional Offices of Refugee Affairs: Braamfontein (Johannesburg), Cape Town, Durban and Pretoria. Specially trained immigration officers also conducted interviews at outlying Department offices. The Department provided an interpreter if

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necessary, and if the applicant could not provide one.17 An adviser (who could be a legal representative) could be present during the interview but he or she could not intervene.18 The intake officer was involved in the preparation of three important documents at the interview stage, which would be forwarded to Head Office in Pretoria at the conclusion of the interview. In respect of the first document, the applicant was able make a written statement prepared in advance of the interview (in her own language).19 The Department was required to assist in this as far as possible, although practice varied considerably. In respect of the second document, the intake officer would query the applicant with regard to basic information such as her name, date and place of birth, citizenship, and ethnic or tribal identity. This information would be entered on the Department’s standard ‘Nationality Questionnaire’ (the NQ). The NQ was not mentioned as part of Passport Control Instruction No. 63 of 1994 but was developed subsequently.20 The Department used this two-page form as a means of verifying that the applicant was indeed a citizen of the country from which he or she claimed to have fled. For the purpose of verifying citizenship, the NQ directed the intake officer to query the applicant with regard to several items. These were the name of the capital city of the applicant’s country of origin, the name of other large cities in that country, and the home country’s political parties, religions, ethnic groups, ‘tribes’ and currency. The NQ also required that all passports and other citizenship and identity documentation possessed by the applicant – whether legally or fraudulently obtained – must be listed. At the end of the NQ, a space was provided for the intake officer to state the country of origin as confirmed by the form. It seems a necessary corollary that if the applicant failed, in the opinion of the intake officer, to establish a ‘confirmed’ country of origin – whether through insufficient documentation or fraud – the intake officer would indicate that fact on the NQ. There was no space provided on the NQ, however, for the intake officer to give reasons for his or her finding on this vital fact. Interestingly, the NQ is not entirely limited to the confirmation of identity and foreign citizenship. In fact, the form directs the intake officer to provide information on the central question in asylum adjudication. Entry no. 13 of the Nationality Questionnaire directs the intake officer to ‘Indicate the significant events, incidents or circumstances which caused the applicant to proceed to South Africa.’ Unfortunately, the five centimetres by fifteen centimetres space provided on the Nationality Questionnaire for the answer to this crucial question was clearly insufficient to provide a full and credible answer. The ‘Eligibility Determination Form’ (the Eligibility Form or EF) was the third crucial document prepared by the intake officer at the applicant’s initial interview. This four-page form consisted largely of information gained from the interview with the applicant. Many of the questions asked on the Eligibility Form went to the heart of eligibility for refugee status,

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such as the following: (1) Why did you leave your home country? (2) Do you or your family belong to any particular political, religious, military, ethnic or social organisation or grouping in your home country? (3) What were you or your family’s activities in such an organisation or grouping? (4) Were you ever involved in incident(s) involving physical violence? (5) Have you ever been arrested or detained? (6) Do you wish to return to your home country? (7) What do you think would happen to you if you were returned to your country and why? (8) Would you face any particular danger to your physical safety if you were to return? Many of the questions on the Eligibility Form also related to possible bars to refugee status – such as the following: (1) Have you ever been convicted? (ineligibility due to criminal conduct); (2) Is military service compulsory in your country? (aliens fleeing forced conscription ineligible); (3) In what manner did you enter [South Africa]? Did you have a visa or work contract? (economic migrants ineligible); and (4) Would the authorities of your home country permit you to return there? (absence of well-founded fear of persecution). It is important to note that, with respect to all the queries listed above, the Eligibility Form provided minimal space for the intake officer to record the applicant’s responses, even though, in many cases, applicants’ responses to these questions would have been lengthy, complex and subject to misinterpretation if not recorded in full. Moreover, the EF’s instructions did not invite the officer to attach extra sheets where necessary. There was no space provided on the form for the applicant to indicate whether he or she had read the form and understood and agreed with the information that the intake officer had written thereon. The absence of any space for such an acknowledgement by the applicant suggested that applicants were not afforded any opportunity to inspect the completed EF to check that the information recorded on that form fairly reflected the applicant’s testimony. The same was true of the NQ. In any case, by far the most important feature of the Eligibility Form was the final entry, in which the intake officer was requested to provide an assessment of the credibility of the applicant’s statements. Many interviewers took this occasion to recommend or not recommend asylum, though such a recommendation was not requested in the Eligibility Form.

The Pending Decision Stage Thirdly, following his or her interview and pending decision on the application, the applicant received a permit in terms of section 41(1) of the Aliens Control Act. With this permit, the applicant was almost always permitted to take up employment or study. Permits were issued for limited periods. The renewal of these permits was a difficult process. From 1998, permits were only to be renewed for a period of three months, and could only be renewed if applications for asylum were launched.21 If lost, the

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official rule was that the permits were not replaceable. The Department did not accept even certified photocopies as the equivalent of the original section 41(1) permit. Following the interview, the applicant was informed that, if her application failed, she would be required to leave the country, regardless of work or study already undertaken.22 Pending a decision, an applicant could be given travel documents to leave and return to the country, although this privilege was extended only in exceptional circumstances.23 All documentation produced during the interview, including the EF, the NQ and, in cases where such documents were available, the applicant’s written statement and the intake officer’s notes, were sent to a body known as the ‘Standing Committee for Refugee Affairs’, located at the Department’s Head Office in Pretoria. The exceptions were those applications from a few countries of origin that were processed at the regional level. The Standing Committee ordinarily took at least two years to process an application, although some were done in a shorter period.

The Standing Committee Decision The fourth key element was the decision by the Standing Committee. The members of the Standing Committee for Refugee Affairs were appointed by the Director-General of the Department, who was its original chair.24 The Standing Committee was composed of Home Affairs officials only. This Committee was responsible for considering and deciding upon applications for refugee status, based, of course, on the documents produced by intake officers during applicant interviews.25 By 2000, the Director of the Residence Directorate, an administrative division including the Refugee Affairs unit, chaired the Standing Committee.26 The head of the Refugee Affairs unit was also a member, along with the two assistant directors of that unit. Three persons constituted a quorum for decisions. In virtually all cases, the Standing Committee did not itself interview applicants and therefore relied on the documents transmitted by the intake officers. Indeed, the Standing Committee itself depended on Administrative Officers, also later called case workers. These officials took the three documents completed by the immigration officers and prepared the file for the Standing Committee by doing research on the country of origin. In substance, these case workers made a recommendation to the Standing Committee. These case workers would specialise by country of origin. In any case, both the Standing Committee and the case workers lacked the capacity to independently assess the credibility of an applicant. Nonetheless, the Committee overturned the credibility indications of the intake officers conducting the initial interviews.27 We shall return later in this chapter to the issue of the Standing Committee’s inability to adequately assess the credibility of applicants. At this point, it suffices to note that the Standing Committee’s reversal of credibility findings made by intake officers who conducted face-to-face interviews with applicants was

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extremely problematic. This was especially so in the vast majority of cases where the Standing Committee did not issue any written findings that could explain its actions in these cases. Applications from a limited number of countries were permitted to be processed at regional level by regional subcommittees of the Standing Committee. The establishment of such regional subcommittees of the Standing Committee was called for by the Human Rights Commission Workshop of November 1996 as a way of reducing a serious backlog and delay in processing asylum applications. Negative decisions of these regional subcommittees were reviewed by the Standing Committee.28 The Standing Committee issued guidelines to the regional subcommittees for use in processing applications from these countries. While the list varied, the countries of origin processed by regional subcommittees were Angola, the former Zaire, Somalia and Burundi (for Cape Town only). The Standing Committee also decided which countries were on this list, based partially on the advice of the administrative officials within the refugee affairs subdirectorate.29 The criteria used for this decision to include countries were a combination of factors relating to the likelihood of such countries generating refugee flows to South Africa and administrative convenience factors.30 While the Department of Home Affairs was considering the inclusion of a country on this list or was unsure of the approach to take on a country, applications of persons from those countries could temporarily be put on hold.31

The Refugee Affairs Appeal Board The fifth element of this regime was the appeal. If the Standing Committee denied an application, the disappointed applicant had the right to appeal. Negative decisions were, however, not automatically appealed. This appeal was made to the Refugee Affairs Appeal Board. While the Board’s complement could be as large as three, the Board consisted of a single member from 1994 to 2000. The first occupant was an advocate; the second was a person without a legal professional qualification who had previously participated in the Department’s immigration selection board.32 Decisions of the Board were binding upon the Standing Committee.33 Initially, the Board did not give reasons for its decisions (which were nearly all in favour of the government), and the Board thus came in for fairly intense criticism.34 As a result of court decisions against the Department, some changes in the Board’s procedures have come about, including the provision of reasons.

Manifestly Unfounded Applications As a sixth and final element, the Standing Committee established special procedures for the ‘fast-tracking’ of applications that it considered

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manifestly unfounded, abusive or fraudulent. An application could be declared manifestly unfounded by the head of the Refugee Affairs subdirectorate on the recommendation of the administrative official dealing with that application within the regional unit or at Head Office if the country was not on the ‘regional list’. Notice of the declaration was given to the applicant and thirty days were granted for appeal. Most applicants declared to have submitted manifestly unfounded applications took advantage of this procedure. The declaration then had to be confirmed by the head of the relevant regional unit. The legal status of this procedure was that of practice and custom.35 There was no right of appeal from the Committee’s determination that an application was manifestly unfounded. The internal appeal was all that was provided.36

Part II: An Analysis of the Centralised Bureaucratic Model of Refugee Determination Procedures In this section, we analyse the 1994–2000 procedures for making refugee status determinations. Two major flaws with these procedures are identified: their separation of fact-finding and decision-making, and their failure to allow for legal representation. These two aspects are most likely to affect the organisational structure of a refugee determination process. The remainder of the chapter outlines a system that we argue should replace the 1994–2000 procedures and should underlie the interpretation of the Refugees Act 130 of 1998. We favour a decentralised, hearing-based system in which intake officers conduct individual interviews with applicants, who are, whenever possible, represented by counsel. Under this system, intake officers are responsible both for fact-finding and for rendering decisions, subject, of course, to administrative and judicial review. Finally, we argue that the Refugees Act allows for the replacement of the 1994–2000 system with a system that conforms to our recommendations, as is indeed demonstrated by the regulations we describe. While the analysis thus appears to have been accepted at a formal level, the implementation of this model remains unsecured.

Refugee Status Determination Procedures should not Separate Factfinding and Decision-making Our first suggestion for reform of the 1994–2000 system relates to the practice of placing fact-finding responsibility with the intake officer, but reserving ultimate decision-making authority for the Standing Committee or the various regional committees. We believe that this division of authority leads inevitably to incorrect decisions based on miscommunication. The problem with the 1994–2000 bifurcated hearing process should be clear. In many, if not most cases, applicants for refugee protection have a

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long, complicated story to tell. This story may include several instances of persecution arising from one or more events, often separated in time. Applicants, usually completely unrepresented and, even in the best cases, without the assistance of their adviser during the interview, have to tell their story to an intake officer during the course of one brief interview. The intake officer would then transmit selected elements of that story, in fragmentary form, to the Standing Committee, which would make a decision based on its reading of the intake officer’s abridged version of the applicant’s hastily related story. The Standing Committee (or, in respect of applications from persons claiming to come from designated countries, the regional committee) had no opportunity in the ordinary course of events to ask follow-up questions of the applicant or to request supplementary documentation. It had to depend on the information written down by the intake officer on the eligibility sheet. For this reason, the Standing Committee could not deal adequately with factual issues that were not addressed or were addressed incompletely in the intake officer’s eligibility form. Even without problems of credibility, we believe this provision of partial information to the decision-maker is a serious shortcoming in the 1994–2000 system. These problems were compounded, moreover, by the fact that the Standing Committee, on several occasions, overturned the credibility findings of intake officers. Again, in a system where fact-finding and decision-making are separated, the problems posed by the Standing Committee overturning an intake officer’s credibility determination should be obvious. Of course, the Standing Committee had no opportunity to observe the applicant first-hand in these cases. The Committee therefore could not undertake an independent assessment of credibility apart from its review of the internal coherence of the applicant’s story and its level of detail as recorded by the intake officer in the three documents described above. These documents were limited to an Eligibility Form, as well as often, but not always, the original factual statement made by the applicant, in some cases an NQ, and perhaps some corroborating exhibits submitted by the applicant. As outlined earlier, the Eligibility Form, which constitutes the most important document transmitted to the Standing Committee, was not a literal transcription of the interview; it was merely a four-page form filled out by the officer as he questioned the applicant. When reduced to paper, the intake officer’s recording of the applicant’s account would be necessarily partial, and thus would often lack the richness and texture that gives rise to credibility. Furthermore, no matter how accurately and completely the intake officer records the applicant’s testimony, it is not possible to adequately record non-verbal indications of credibility. In sum, the separation of fact-finding from decision-making is a thoroughly bad idea that has many undesirable effects. It makes it more difficult for truthful applicants to establish the credibility of their factual account, thus increasing the chances for error. Similarly, it makes it easier

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for untruthful applicants to defraud the Department. This aspect of the 1994–2000 system, in short, benefited no one.

Refugee Status Determination Procedures should Allow Applicants to Exercise their Legitimate Administrative Justice Rights, Including that of Legal Representation Under the 1994–2000 procedures, applicants lacked a right to legal representation at their hearings – even when such representation was provided at the applicant’s expense. Under these procedures an ‘adviser’ could be present during the interview, but was not permitted to intervene. As a consequence, the presence of such an adviser, even if the adviser is a lawyer, clearly does not amount to legal representation. This is an unwise policy from the standpoint of administrative efficiency. Allowing the applicant to be represented by a lawyer will often be helpful for both the applicant and the government. An applicant who is represented by a lawyer will be better able to provide for the intake officer a complete, accurate, organised, and credible account of the facts underlying his or her claim. This will improve both the accuracy and the efficiency of the process. Perhaps the most important benefit to be obtained from legal representation is that a represented applicant will be prepared to offer testimony, that is relevant to his or her claim. The importance of this point cannot be overstated. The Department has devoted and will devote considerable resources, in both money and personnel, to the interview component of the refugee adjudication process. It is therefore only common sense that the Department should structure the interview process in a manner that will elicit the most relevant, most accurate, and generally the most helpful information from applicants. The early involvement of trained lawyers is immensely helpful in this regard. To see why this is so, it is only necessary to remember that applicants for refugee status succeed or fail to the extent that their story, as told to an intake officer, meets a legal definition of refugee status that is highly technical. According to the legal framework set forth under the UN and OAU refugee definitions to which South Africa acceded, an applicant will be entitled to protection as a refugee only if he or she can establish either the existence of ‘a well-founded fear of being persecuted for reason of race, religion, nationality, membership of a particular social group, or political opinion’, or that ‘owing to external aggression, occupation, foreign domination, or events seriously disturbing public order in either part or the whole of his or her country, [he or she] is compelled to leave his or her place of habitual residence.’37 An applicant’s inability to find a job in his or her native country generally does not count, nor does the fact that the applicant may lack freedom of speech, or of religion, in his home country, unless that fact manifests itself as actual or threatened persecution.

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Few applicants for refugee status are lawyers. Fewer still possess any real knowledge of the intricacies of the law of asylum. So an unprepared and unrepresented applicant often comes to his interview wanting to talk about everything in his personal history, or in the political, social and economic conditions prevailing in his country, that relates in any way, even tangentially, to his decision to flee. This is especially crucial because many, if not most, applicants will admit that their decision to flee their country was motivated by a mix of considerations, some of which might be relevant for the purpose of establishing refugee status and others not. Consider, for example, the case of a Mozambican applicant who has left his country for two reasons. The first is because all the land in his home region is sown with landmines, with the result that he cannot farm and cannot support himself. The second is because he has worked in a local office of the central government, has articulated pro-government political views and has received several letters threatening his life, which he believes were sent to him by local members of the anti-government Renamo militia. Both reasons for leaving Mozambique may have been equally important to the applicant. However, from the point of view of obtaining refugee status, the applicant’s second reason for fleeing, i.e. the threats to his life, may, if proved, entitle him to relief under both the UN and OAU definitions of refugee status. His first reason, i.e. his inability to farm, may be irrelevant under both definitions (although emotionally compelling). Unless the client is represented by competent counsel, the applicant will lack guidance with respect to which facts are relevant, and the intake officer will be required to sort through a number of irrelevant facts, thereby wasting valuable administrative resources. A well-represented applicant is a better and more helpful witness for the intake officer. The applicant will have been interviewed by his lawyer on several occasions prior to the interview. The lawyer will make sure that he has a full understanding of why his client fled his home country, and why the client is afraid to return. The lawyer will also assess whether the facts alleged by the client, if substantiated, would qualify that client for refugee status. Thus the lawyer can act as a filter in certain cases, by advising clients with non-meritorious cases that relief may come through another avenue, but will likely not be available via the asylum process. And a responsible lawyer will, with respect to all clients, advise that the client is bound to testify truthfully, that there are penalties for perjury before the intake officer and that the lawyer cannot be party to perjured testimony. In any event, the applicant will arrive at the interview prepared to testify to relevant facts. Representation is also necessary because the intake officer must, in addition to assessing the facts testified to by the applicant, make decisions on a number of legal questions, such as the possibility of disqualification due to participation in persecution, or firm resettlement in a third country. Many questions that initially seem clearly factual – for example, whether country conditions have changed sufficiently to defeat any claim of a well-

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founded fear – must be determined using a legal standard. These legal questions are often determinative, but they are often also highly technical, so much so that ordinary applicants cannot adequately present their case without legal assistance. For example, an applicant who has come to South Africa via Senegal after fleeing Liberia may face disqualification if it is found that he has been an irregular mover within the African region. Unless the applicant understands this concept (which is itself not yet clear within the structure of the Refugees Act) and the factors relevant to whether or not he was indeed an irregular mover, he will not understand how best to demonstrate that he was not in such a category. For example, he may not know that whether he was offered or accepted regularised immigration status in Senegal would be relevant.38 In sum, the absence of legal representation may lead in many cases to unnecessary costs and wastage of administrative resources and avoidable, incorrect results. Indeed, a number of officials completing the Eligibility Forms under the 1994–2000 procedures would informally offer decisions on such legal questions, though they lacked the legal training to do so and were not specifically empowered to do so. Beyond considerations of efficiency, the 1994–2000 system was not in fact fair and was not perceived as fair either by the client population of asylum-seekers or by the South African public. The legitimacy of a system that offers face-to-face status determinations by intake officers authorised to make such decisions would be much greater. First, the procedural fairness of a personal interview and decision will be greater than that of a centralised bureaucratic process where the applicant does not have the opportunity to make his or her case. Secondly, the hearing-based system we favour would also fare better in its inevitable journey through the judicial system. Providing procedural protection such as legal representation as part of the status determination process will mean that judges reviewing a specific case are more likely to approve of the substantive result, whether or not the asylum applicant is granted refugee status.

The Decentralised Hearing-based Model A feasible alternative to the 1994–2000 procedures is a true decentralised hearing-based model, where properly trained and supervised intake officers both find facts and render initial decisions. In contrast to a centralised bureaucratic model, a hearing-based system offers superior efficiency, accuracy and fairness. Such a system would have two necessary features: decentralisation of authority to intake officers and restructuring the centralised refugee status determination institutions. Beyond reflecting these two elements, the model will also allow for two additional innovations in refugee status determination: centralised information on country conditions and an individualised, but decentralised, ‘fast-track’ procedure for applications judged to be manifestly unfounded.

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The first feature necessary to a decentralised hearing-based system involves pushing authority down to the intake officers to conduct interviews, to find facts and then to make initial eligibility determinations. With this decentralisation of decision-making authority, the advantages we pointed out above of efficiency and credibility will begin to be realised. Although we believe that a hearing-based system must allow legal representation, we are not suggesting that the advantages of efficiency and legitimacy can only be attained if the refugee hearings are conducted according to a full-blown adversarial procedure. Rather, the intake officer should have the opportunity to question the applicant, free from interference from a lawyer, with regard to the facts underlying the applicant’s claim. However, at the close of the applicant’s testimony, the applicant’s lawyer should also be allowed to question the applicant with regard to important factual issues that were not covered in the officer’s questioning. The lawyer should also be permitted to summarise the most important points of the applicant’s testimony, and to direct the officer’s attention to especially important supporting documents, if any have been submitted. Finally, the lawyer must have input on any legal issues that have arisen as a result of his client’s testimony. Without participation by the lawyer on these legal issues, the applicant will be effectively denied a full and fair opportunity to make his case. In contrast, if lawyers are introduced into the process in the manner set out above, lawyer participation will be found to be an aid to accurate determination of an applicant’s status, rather than a hindrance. In sum, a workable level of lawyer participation in hearings strikes a balance between the intake officer’s need to make an independent credibility assessment of the applicant free from undue interference from the lawyer, and the interest of all parties, including the government, that important legal issues be fully canvassed and the vital factual issues and relevant documents briefly be set in proper perspective. The second feature necessary to institute a true decentralised hearingbased system would be to restructure the central bodies of the refugee determination process at levels above the initial hearing. This entails three elements: an expert administrative supervisory body, a legally rigorous review body and access to judicial review. The supervisory body provides a place to catch administrative mistakes. This element of the refugee determination procedure should provide Home Affairs with a chance to remedy its own errors. A six or seven member administrative supervisory body could include senior intake officers from the decentralised offices, as well as several officials from Head Office. All cases would be reviewed by such a body, which would not need to give individualised attention to each case. Such a body would be able to detect and concentrate resources upon the anomalous cases that might signal a mistake or an instance of fraud. With a reduced portfolio, the 1994–2000 secretariat of the Standing Committee could be greatly reduced and the

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organisational resources thus freed could be devoted to the decentralised system of intake officers. The training programmes that under a bureaucratic model would be directed at the secretariat of a Head Office Standing Committee would be devoted instead to the training of decentralised intake officers. The second element required is to provide all applicants denied refugee status at the intake officer and Standing Committee level an appeal as of right, but on legal issues only, to a departmental legal tribunal. In much the same way as the function of the reconstituted Standing Committee would be to isolate and investigate the discrepant cases with regard to the facts, the function of a reconstituted Appeal Board would be to make all refugee decisions within the department consistent with the department’s understanding of binding refugee law. In respect to this second element, a concern about the independence of the Refugee Affairs Appeal Board under the 1994–2000 procedures must be raised.39 The Refugee Affairs Appeal Board was located administratively within the sub-directorate for Refugee Affairs. The Board employed dedicated staff but these staff remained answerable to the head of the Refugee Affairs sub-directorate. This organisational placement raised issues about the Board’s independence, issues that were hardly addressed by the performance of the Board over the 1994-2000 period. In comparison, the Immigrants Selection Board, as an administrative body with statutory independence, does not report administratively to an official in a unit charged with line functions. Instead, the Selection Board reports directly to the Director-General. This is in recognition of its independence from political interference and its direct establishment by legislation.40 The third element required at the level of the centralised institutions of the refugee status determination process is to provide for appropriate and efficient judicial review. Adverse decisions of the departmental tribunal should be appealable to an independent judicial body. Our model would be consistent with either direct High Court review or a corps of magistrate judges constituted as special immigration judges with the power to review departmental decisions. In order to make such review accessible, consideration should be given to making legal aid available to indigent applicants. Finally, our model of a decentralised hearing-based system is consistent with two further innovations: centralised information on country conditions and an individualised but decentralised ‘fast-track’ procedure for applications judged to be manifestly unfounded. While these are not necessary features of a decentralised hearing-based model, they are elements that would improve the accuracy and fairness of the determination system. First, accurate, complete and up-to-date information on country conditions is vital to the refugee adjudication process. Applicants come to the process and tell a personal story that will be judged according to the legal framework set forth under the UN and OAU refugee definitions.41

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Whether the applicant’s statement entitles him or her to refugee status will only be assessed within the context of the history, politics and social conditions of the refugee’s home country. Consequently, the refugee adjudication process will yield accurate results only if the decision-making officers have access to complete and accurate information on applicants’ home countries. Collecting such information is clearly beyond the capacity of decentralised intake officers. It is likely also beyond the capacity of the refugee rights community. There is thus a strong argument that this function should be centralised. The Refugee Affairs Sub-directorate took a first step towards providing such information for its personnel by establishing a centralised set of files containing information on country conditions. This was an encouraging step and warranted further development. In particular, a centralised database on country conditions, similar to Canada’s Documentation Centre,42 is vital to the efficient and fair administration of a reformed refugee adjudication procedure in South Africa.43 Second, the Department can implement the Act in a fashion that will increase the effectiveness of the procedure for rejecting applications as ‘manifestly unfounded’ that has been developed under the 1994–2000 determination system. We believe that a ‘fast-track’ procedure for rejecting manifestly unfounded applications makes sense, but only if the truncated procedure is not used as a mechanism to reject applications from nationals of a ‘white list’ of countries that the Department believes do not create refugee flows. Indeed, granting the authority to reject an application as manifestly unfounded at the regional level emphasises the character of the manifestly unfounded decision as an individualised determination rather than one based on nationality, a principle important to uphold in providing a refugee determination procedure consistent with international law. The authority to determine that an application for refugee status is manifestly unfounded resided in the 1994-2000 period at the level of the Standing Committee. In line with our recommendation that individualised refugee hearings be conducted by intake officers, we would also recommend that the power to reject an application as manifestly unfounded be devolved to the initial intake officers – but only if accompanied by the built-in protections that exist elsewhere in our model of the decentralised hearingbased system, i.e. the provision of a written decision with reasons, an administrative filter by the supervisory body for cases of mistake or fraud, an internal legal review function by the Appeal Board, and judicial review.

Part III: The Refugees Act: Properly Interpreted in Terms of a Decentralised Hearing-based Model On 20 November 1998, South African President Nelson Mandela signed into law a Refugees Act.44 The first paragraph of the new Act states that

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the Act is intended ‘[t]o give effect within the Republic of South Africa to the relevant international legal instruments, principles and standards relating to refugees; to provide for the reception into South Africa of asylum seekers; to regulate applications for and recognition of refugee status; [and] to provide for the rights and obligations flowing from such status’. In this section, we briefly examine whether the new Act does in fact accomplish these goals in its specification of the procedures to govern refugee status determination. We investigate several topics relevant to key components of the decentralised hearing-based model: hearing and legal representation, the internal appellate tribunal and the right to written reasons. We argue that the Act is an important step forward and, properly interpreted, reflects our decentralised hearing-based model. In this section, we also review the Department’s implementing regulations, issued in April 2000.

Hearing and Legal Representation The Act as introduced to the National Assembly contained provisions explicitly requiring that every asylum applicant be afforded an oral hearing before a Refugee Reception Officer. Furthermore, that version of the Act (the ‘draft Act’) guaranteed to refugees a right to legal representation in their oral hearing. The specific language granting an oral hearing with legal representation was contained in section 24(2) of the draft Act, which provides, in pertinent part, that: When considering an application the Refugee Status Determination Officer must have due regard for the rights set out in section 33 of the Constitution, and in particular, must – (a) hear oral evidence; (b) allow legal representation (c) ensure that the applicant fully understands the procedures, his or her rights and responsibilities and the evidence presented.

This language was substantially altered in the Act as amended by the National Assembly’s Portfolio Committee on Home Affairs, which was the version of the Act that was eventually passed into law (hereinafter referred to as the ‘final Act’). Section 24(2) of the final Act provides only that: ‘When considering an application the Refugee Status Determination Officer must have due regard for the rights set out in section 33 of the Constitution, and in particular, ensure that the applicant fully understands the procedures, his or her rights and responsibilities and the evidence presented.’ In short, section 24(2) of the final Act drops the explicit reference to an oral hearing with legal representation that was included in the same section of the draft Act. This change from the draft Act to the version enacted does not mean, however, that the Act does not require that asylum applicants be afforded a hearing. The provision of a hearing may still be required by section 24(3)

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of the Act, albeit not quite as clearly as in section 24(2) of the draft Act. Section 24(3) of the final Act provides that: The Refugee Status Determination Officer must at the conclusion of the hearing – (a) grant asylum; or (b) reject the application as manifestly unfounded, abusive or fraudulent; or (c) reject the application as unfounded; or (d) refer any question of law to the Standing Committee.

The use of the word ‘hearing’ in section 24(3) could be a mere drafting error, a failure on the part of the legislature to remove the word ‘hearing’ from section 24(3) when it removed the provisions in section 24(2) establishing an applicant’s right to an oral hearing with legal representation. But we believe it far more likely that the continued presence of the word ‘hearing’ in section 24(3) of the final Act reflects a determination by the drafters to provide some kind of oral hearing, the exact parameters of which remain to be defined by regulation. We believe that the drafters recognised, for reasons similar to those stated above, that the refugee determination process cannot provide, in the absence of a hearing, the procedural fairness that the right of just administrative action provided in section 33 of the Constitution requires. Genuine refugees are often forced to flee their native country with little or none of their property. Accordingly, the records that might provide evidence for an applicant’s claim for refugee status may not be available to aid his or her claim. Additionally, persecutors do not ordinarily issue documents evidencing that a claimant has indeed been persecuted. While an applicant may be able to document conditions in his or her country that relate to the reason for his persecution, the applicant will most often lack documentary evidence of the relationship between country conditions and his own story of persecution. For all these reasons, a fair decision ‘on the papers’ is simply not possible in respect of many asylum claims. In most cases, the Refugee Status Determination Officers will be obliged to make a decision based on little more than the internal consistency of the applicant’s account of persecution, along with other, more intangible, indications of credibility. However, unless the applicant is heard in person, the internal consistency of the applicant’s account cannot be fully probed, and many other important indications of credibility will be lost. For example, the applicant will be unable to demonstrate credibility by giving testimony consistent with the facts as presented in his written application. The applicant will also be deprived of the chance to demonstrate credibility by answering questions regarding the details of his account. Just as importantly, the Department will be unable in most cases to probe applicants to determine whether the facts presented in their written application are truthful. For all these reasons, hearings are vital to the fairness of the refugee determination process and, we believe, are therefore constitutionally required, in addition to representing the best policy choice for applicants and the Department.

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The Department at least initially formally agreed with this view. Section 38(g) of the final Act provides that the Minister of Home Affairs may make regulations pertaining to ‘any … matter which is necessary or expedient to prescribe in order that the objects of this Act may be achieved’. Regulations published on 6 April 2000 detail the refugee status determination process and implement the Act.45 These regulations define a hearing to be ‘an informal, non-adversarial interview with a Refugee Status Determination Officer’.46 Regulation 10(1) provides as follows: ‘In complying with the provisions of section 24 of the Act, the Refugee Status Determination Officer will conduct a non-adversarial hearing to elicit information bearing on the applicant’s eligibility for refugee status and ensure that the applicant fully understand the procedures, his or her rights and responsibilities and the evidence presented.’ The Refugee Status Determination Officer may receive evidence and question the applicant and any witness.47 The applicant has the right to be represented by legal counsel, present witnesses and submit affidavits of witnesses and other evidence.48 Importantly, regulation 10(5) provides: ‘At the end of the initial hearing, the applicant’s counsel or representative shall have an opportunity to make a statement or comment on the evidence presented, subject to the Refugee Status Determination Officer’s discretion regarding the length of such statement or comment. Comments may also be submitted in writing.’ The precise character of this hearing will undoubtedly vary over time through departmental capacity, negotiation and case-by-case issues.49 But the threshold issue has been dealt with adequately. We believe that the Department’s principle of provision of hearings and legal representation is both wise policy and a sound statutory and constitutional interpretation.

Judicial Review and the Appeal Board An important part of the model we propose is the monitoring by the judicial system of the internal tribunals on refugee affairs. The Act and regulations are both silent on whether and under what conditions unsuccessful applicants who have exhausted their administrative remedies may resort to the courts. It is also true that neither document explicitly purports to oust judicial review. Given that ousters of judicial review are particularly disfavoured under South African law, we see no reason to construe the Act as providing for ouster. Instead, the default rule of section 7(2)(a) of the Promotion of Administrative Justice Act 3 of 2000 would presumably apply. Judicial review in terms of this Act is available only where ‘any internal remedy … has been exhausted’. This exhaustion of remedies requirement is the substantive condition on access to court.50 Applicants unhappy with their cases will have to go first to the Appeal Board before going to the High Court.51 But there is clearly no possibility of an ouster of judicial review. Additionally, there are persistent concerns regarding the independence of the Refugee Affairs Appeal Board. Section 33(3) of the Constitution

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requires that all administrative action must be subject (via national legislation) to review ‘by a court or, where appropriate, an independent and impartial tribunal’. While significant, the language in section 12 of the Act providing that the Appeal Board ‘must function without any bias and must be independent’ cannot by itself guarantee these ‘independence and impartiality’ requirements of the right of just administrative action. Two features are of particular concern.52 First, under section 17(1), the Minister of Home Affairs is given the authority to remove a member of the Appeal Board ‘on account of misconduct or inability to perform the functions of his or her office properly’. This standard is far too hazy for comfort. Could the Minister, for example, dismiss a member of the Appeal Board who persisted in reaching decisions he did not like, even if they complied with the terms of the Refugees Act, by finding that the member was incapable of performing the functions of his or her office properly? We would suggest not, but the question remains open.53 The Minister should adopt a regulation clarifying and addressing the issue. The second concern regarding the Appeal Board’s lack of independence is much broader than the question of the Minister’s power to hire and fire its members. Neither the Act nor the draft regulations suggest that the Appeal Board will enjoy even the slightest degree of independence within the administrative structure of the Department. In real terms, this means that the Appeal Board’s budget, its staff and its facilities, right down to its supply of pens and paper clips, will potentially be controlled by the Department. That means that, if the Appeal Board makes decisions that displease the Minister, it may feel the Minister’s ire very directly. The Appeal Board’s susceptibility to budgetary strangulation hardly recommends it as an ‘independent and impartial’ body capable of substituting for judicial review under Section 33 of the Constitution. Again, formal adoption of a regulation providing for administrative independence would be helpful to the ultimate success of the Refugee Affairs Appeal Board.

The Right to Written Reasons in Refugee Status Determination The Act does not contain an explicit requirement that applicants be given written reasons should their application for refugee status be denied, but the Department has provided for the provision of written reasons in its regulations implementing the Act. Regulation 12(3) provides that: ‘If an application is rejected, the applicant must be provided with a written decision identifying the reason for the rejection.’ This regulation includes within its ambit those cases rejected as manifestly unfounded, abusive or fraudulent. In these cases, the written reasons must be provided for the applicant within five working days after the date of rejection, pursuant to section 24(4)(a) of the Act. In line with the decentralised hearing-based model, this rejection is within the authority of the Refugee Status Determination Officer. The five-

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day deadline to provide written reasons in the context of applications rejected as manifestly unfounded, abusive or fraudulent will facilitate the Standing Committee’s expedited review of this class of applications.54 In respect of applications rejected for ordinary reasons – i.e. as merely ‘unfounded’, rather than ‘manifestly unfounded’ – the regulations do not set a deadline for the Department to provide the applicant with written reasons. However, under Regulation 14(1)(a), rejected applicants are required to lodge an appeal with the Appeal Board within thirty days of receipt of a letter of rejection. Obviously, in order to make the applicant’s appeal possible, the Department will have to provide the applicant with written reasons well in advance of the expiration of the thirty-day deadline. It is worthwhile to pause at this point to make clear that the Department’s provision of written reasons in the draft regulations was not a matter of discretion – rather, it was required to save the Refugees Act from constitutional invalidity. Under the 1994–2000 status determination system, the initial practice of the Department’s Refugee Affairs Appeal Board was not to give written reasons for their decisions. This practice was the subject of litigation by the refugee rights community. The issue was resolved against the Department of Home Affairs when the Board agreed in the Pembele55 settlement to provide written reasons. The reason for the Department’s change of heart can best be found in section 33(2) of the Constitution, which provides that ‘everyone whose rights have been adversely affected by administrative action has the right to be given written reasons’. In the context of the Department’s administration of South Africa’s refugee status determination system, section 33(2) makes clear that any adverse decision rendered by a Refugee Status Determination Officer must be embodied in a written document that sets forth the reasons why the Department has rejected the applicant’s claims.56 What is required in order to comply with the right to written reasons? The decided cases initially expressed a rationale of linking the provision of detail to the severity of the consequences of the decision.57 Given the potentially severe – indeed, possibly fatal – consequences of deporting a bona fide refugee, this rationale would clearly act in favour of the need to disclose the basis for the denial of refugee status in considerable detail. More recently, the right has been grounded in the necessity for effective judicial review.58 The latter rationale is, in our opinion, by far the more important. If the applicant does not know exactly why his application was rejected, his ability to have that decision reviewed by a court will be crippled. This is an outcome that the Constitution, which subjects administrative action to judicially enforced standards of due process, cannot countenance. In order for a Refugee Status Determination Officer’s written decision to provide an adequate basis for judicial review, it must, at a minimum, set forth the relevant facts as found by the Refugee Status Determination Officer, as well as testimony by the applicant found not credible by the

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officer, and the grounds for such adverse credibility findings. The written decision must also provide the reason or reasons for the adverse finding. For example, it must disclose that the intake officer has determined that the applicant lacks a well-founded fear because country conditions have changed or that the applicant is ineligible for asylum due to firm resettlement in another country. More importantly, it must set forth the facts and analysis underlying each reason for the adverse finding.59 Unless this degree of specificity is provided in the written decision, applicants will lack the knowledge necessary to mount a successful appeal against the denial of their claim for relief.

Conclusion As it had when drafting the Refugees Act, the Department of Home Affairs, now working with the Refugees Act having legal effect, still has a chance (indeed, a duty) to identify and implement a workable system of refugee determination. The 6 April 2000 regulations are a good start. The courts, however, have made clear that the policy area of refugee determinations is an area in which they as judges feel competent and in which they will grant relief to sympathetic applicants. They and the Department will both by necessity engage in a process of interpreting as well as implementing the Act. We argue that the component elements of an efficient and fair decentralised and hearing-based system – which are laid out in the Refugees Act and confirmed in the regulations at a formal level – need to be given substance by the Department in its training programmes and its organisational policies. If this does not occur, then the policy development in this area over the next few years will be a process that is driven by court decisions. Such decisions, we believe, will emphasise fairness elements at the expense of efficiency concerns. The swift and thorough institutionalisation of the decentralised hearing-based model would be a proactive political strategy, rather than a reactive court-based one.

Notes 1. Some of the material in this first section is adapted from J. Klaaren, ‘Contested Citizenship in South Africa’ in The Post-Apartheid Constitutions: Perspectives on South Africa’s Basic Law, ed. P. Andrews and S. Ellmann (Johannesburg, 2001), 304–25. 2. Before the period 1991–93, South Africa had a refugee problem but no refugee regime. Indeed, the apartheid state was involved in creating refugees through its policies of regional destabilization. In particular, Mozambican refugees came in significant numbers to what were then homelands in the eastern Transvaal. C. Murray, ‘Mozambican Refugees: South Africa’s Responsibility’, South African Journal of Human Rights 154 (1986): 2. Little attention was given to the issue by the apartheid central government, certainly not from a human rights perspective.

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3. 4.

5.

6.

7.

8.

9.

10. 11.

12. 13. 14. 15.

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For the most part, these refugees were left to find their own accommodation with the homeland governments of the time. Since the time of these Mozambican refugees, however, dramatic changes have occurred both at the level of formal law and at the level of state bureaucracy. See generally L. de la Hunt, ‘Refugees and Immigration Law in South Africa’, in. Beyond Control: Immigration and Human Rights in South Africa, ed. J. Crush (Cape Town, 1998), 124. In 1991, the UNHCR had signed a Memorandum of Understanding with South Africa. This related largely to the return of exiles. South Africa has ratified several international treaties regarding the treatment of refugees and asylum-seekers. These treaties are: the 1951 UN Convention on the Status of Refugees, the Protocol to the UN Convention on the Status of Refugees (both ratified in the Senate on 14 September 1995, Hansard col. 2966, and in the National Assembly on 11 October 1995, Hansard col. 4361), and the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (Hansard, ibid). These treaties were formally acceded to in January 1996. Section 6 of the Refugees Act states that that Act must be ‘interpreted and applied with due regard to’ these treaties, among others. See Passport Control Instruction No. 20 of 1994. Initially, applicants who appeared to be refugees were issued with permits on the condition of proceeding to Gazankulu or KaNgwane for contact with the UNHCR and assistance in repatriation to Mozambique. This condition was later dropped. An attachment to this Passport Control Instruction contained criteria to be used in the evaluation of refugee claims by Mozambicans. Passport Control Instruction No. 63 of 1994. Issued on 23 September 1994, this Passport Control Instruction specifically mentions and draws upon the Basic Agreement signed between the government and the UNHCR. The Minister of Home Affairs approved a set of ‘Voluntary Repatriation Arrangements’, which were intended to ‘give effect to’ the UNHCR Basic and Tripartite agreements. These arrangements were known as the asylum procedures and constituted the understanding between the Minister and the UNHCR as to the content of applicable asylum procedures. See 3 July 1996 communication from C. Schravesande, Department of Home Affairs, to J. Klaaren with `voluntary repatriation arrangements’ attached. For instance, in 1994, asylum-seekers in Johannesburg initially went to the District Office at Market Street, but this office could not cope with the demand. (See Passport Control Instruction No. 32 of 1995.) In response, a specialised office dealing with asylum-seekers was opened in Braamfontein. See, inter alia, Kabuika and Another v Minister of Home Affairs and Others 1997 (4) SA 341 (C), Pembele and Others v. Appeal Board for Refugee Affairs (unreported, Case No. 15931/96, 10 December 1996, Cape Provincial Division), and Baramoto v Minister of Home Affairs 1998 (5) BCLR 562 (W). See Chapter 6 of this collection. Section 41(1) provides: ‘The Minister may issue to a prohibited person a temporary permit on the prescribed form to enter and reside in the Republic for the purpose, and subject to the other conditions, mentioned therein.’ This discretionary function was delegated to the level of immigration officers. See, for example, Passport Control Instruction No. 29 of 1997 (replacing Passport Control Instruction No. 33 of 1992). See Chapter 3 of this collection. There were special procedures for stowaways claiming to be refugees. PCI No. 33 of 1995. Passport Control Instruction No. 63 of 1994 (Procedures for Handling AsylumSeekers and Refugees). See South African Human Rights Commission, Illegal? Report on the Arrest and Detention of Persons in Terms of the Aliens Control Act (Johannesburg, 1999).

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16. Communication from M Schoeman, Department of Home Affairs to J. Klaaren, 20 May 1999. 17. Voluntary Repatriation Arrangements (see n. 7) at section 6.2.2. 18. Lawyers for Human Rights and Wits Refugee Research Programme, ‘Asylum and Naturalisation: Policies and Practices’, unpublished workshop preparatory document, 1996. 19. Voluntary Repatriation Arrangements at s. 6.2.3. 20. Personal communication from Home Affairs official to Jonathan Klaaren, Pretoria, May 1998. 21. Departmental Circular No. 50 of 1998. 22. This was entirely a matter for self-enforcement. In discussions with the National Consortium for Refugee Affairs in mid-1999, neither the UNHCR nor the Department of Home Affairs was aware of any person deported after having had an asylum application rejected. 23. Letters from Director-General regarding Documents for Travel Purposes to Refugees, dated 7 March 1995 and 20 January 1995. 24. Voluntary Repatriation Arrangements at s. 1.3. 25. Voluntary Repatriation Arrangements at s. 3. 26. The chairmanship had also been at the deputy Director-General level but the practice of delegating evolved since such top officials did not have the time to give to the consideration of applications. 27. Lawyers for Human Rights,‘Asylum and Naturalisation: Policies and Practices’, unpublished Workshop Report, 14 November 1996. 28. Voluntary Repatriation Arrangements at. s. 3.7. 29. This advice is gathered from a number of sources, including embassy and NGO reports as well as input from UNHCR. 30. A similar standard articulated for a determination with respect to stowaways is whether a country is one ‘where the safety or freedom of any such person [claiming to be a refugee] is seriously threatened’. Passport Control Instruction No. 33 of 1995 (Stowaways Procedures). 31. Lawyers for Human Rights and Wits Refugee Research Programme, ‘Asylum and Naturalisation’, 5. 32. Voluntary Repatriation Arrangements at s. 1.4. The procedures for the appointment of the first member did not follow the terms of the voluntary arrangements entered into by the government with the UNHCR, in that the Department of Justice was not consulted in the appointment. The Refugee Affairs unit had recommended such consultation but this was not heeded. See n. 27: ‘Asylum and Naturalisation: Policies and Practices’, 3 (notes by the organisers of a talk by C. Shravesande, Director of Refugee Affairs). Since that appointment (where the response of the Department of Justice was not thought of as adequate), these procedures have been amended by the Minister. Communication from a Home Affairs official to one of the authors. 33. Voluntary Repatriation Arrangements at s.4.2.8. 34. See, for example, Human Rights Watch, ‘Prohibited Persons:’ Abuse of Undocumented Migrants, Asylum Seekers, and Refugees in South Africa (New York, 1998). 35. According to the Voluntary Repatriation Arrangements, Eligibility Committees established near the border areas would have the power to declare an application ‘manifestly unfounded’ but, as has been pointed out in the text, this was not the source of authority for the operative manifestly unfounded procedure. 36. An alternative to the arrangements would have been to have such declarations confirmed instead by the Refugee Affairs Appeal Board, the body that heard appeals from adverse decisions of the Standing Committee with respect to applications not declared manifestly unfounded. This alternative was within the powers of the Standing Committee under the asylum procedures. Voluntary Repatriation Arrangements at s.2.1.4 and s.3.9.

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37. Section 3(a) and (b), Refugees Act 130 of 1998. 38. In general, South Africa has refused to grant asylum to refugees who could have applied for asylum elsewhere, and as a rule takes residence as longer than three months. 39. The institution of a wide-ranging independent review structure within the department may be worth investigation. The argument for such a body is that not only would it go a great way towards remedying many of the manifestly unconstitutional practises of the Department and contribute better legitimacy, it would foster more rational and effective immigration policy and better-informed decisions. See Draft Green Paper on International Migration, 1997, paragraph 1.3.5. A scaled-down version of this vision – and one that may contribute to greater independence from political decision-making – would be an important concept to retain and may contribute to a streamlining of the refugee determination process. 40. Section 24 of the Aliens Control Act 96 of 1991 established the Immigrants Selection Board. 41. Section 3, Refugees Act 130 of 1998. 42. The Canadian Immigration and Refugee Board has established an official Documentation Centre. The Centre’s legal database has been opened to the public online through QuickLaw, Canada’s largest on-line legal research database. 43. Such a database, to be credible, must draw information from a wide variety of sources, including government reports (such as the country conditions reports of the United States Department of State), NGO reports (such as those published by Human Rights Watch, Amnesty International, the Lawyers Committee for Human Rights, and many others), reports of the United Nations High Commissioner for Refugees, and news articles from the domestic and international press. Additionally, this database must be accessible to the public – preferably online. Of course, the existence of such a database will not preclude applicants from being afforded the opportunity to supplement the materials in the database both with materials relating generally to country conditions, and with data specifically corroborating their own factual account. 44. Act 130 of 1998. 45. Refugees Act Regulations (No. R 366) (6 April 2000), GG 21075. 46. Refugees Act Regulation 1 Definitions. 47. Refugees Act Regulation 10(2). 48. Refugees Act Regulation 10(4). 49. Perhaps the most striking character of this hearing is its split personality. The Regulations speak of ‘the initial hearing’ and the later ‘conclusion of the hearing’. Regulation 12(2) provides: ‘The applicant must return to the designated Refugee Reception Office to conclude the initial hearing and personally receive the decision on his or her asylum application. At his or her discretion, the Refugee Status Determination Officer may ask the applicant additional questions regarding eligibility for refugee status.’ One issue that will surely arise will concern access to information during the period of time between the initial hearing and the conclusion of the hearing and service of decision. For instance, must country condition information contrary to that supplied by the applicant be disclosed? The answer is likely to be yes. Another issue that is also likely to arise is that of legal representation at the conclusion of the hearing referred to in Regulation 12(2). To the extent that questions will be directed to the applicant, a legal representative should be allowed to be present to advise his or her client. 50. Here, the Regulations’ definition of a final determination is somewhat broader. According to Regulation 1, a ‘final determination’ means ‘a determination for which any appeal to the Refugee Appeal Board has been exhausted or the time period to file an appeal has expired, or [any] mandatory review by the Standing Committee has been completed’.

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51. In terms of Regulation 14(1)(a), an appeal to the Appeal Board must be launched within thirty days of receipt of the letter of rejection and must be lodged directly in person. The Regulations do not provide for any target time period for the Appeal Board decision of appeals. 52. Another feature is perhaps of concern as well. Under section 13(1), the members of the Appeal Board will be appointed by the Minister of Home Affairs. There is no provision in the Act or draft regulations that establishes any mechanism that would result in Appeal Board members being less beholden to the Minister for their jobs. Such a mechanism could be a committee tasked with recommending persons to be appointed to the Board or even involvement by the Judicial Service Commission. In fact, a selection committee did meet in April 2000 and decided to recommend two persons for immediate appointment and further to recruit more broadly for additional part-time members. This procedure should be formalised. 53. Section 17(2) requires the Minister to ‘tak[e] … into consideration’ comments by the relevant member as well as the Appeal Board’s chairperson before removing a member, but it does not subject the Minister’s decision to review by any Departmental body or a court. And even if a court eventually finds that the Minister’s authority to fire Appeal Board members is more circumscribed than the vague text of section 17(1) suggests, for the moment at least Appeal Board members have a strong incentive to follow their Minister’s directives closely. 54. Also in line with section 24(4)(a), Regulation 13(4) provides that the Standing Committee shall normally inform the Refugee Status Determination Officer of its decision within five days of referral of the determination of whether an application was correctly rejected as manifestly unfounded, abusive or fraudulent. 55. See note 9 above. 56. See also section 5 (reasons for administrative action) of the Promotion of Administrative Justice Act 3 of 2000. 57. Moletsane v Premier of the Free State and Another 1996 (2) SA 95 (O). 58. Afrisun Mpumalanga (Pty) Ltd v Kunene NO and Others 1999 (2) SA 599 (T) at 631I – 632A. 59. Regulation 12(1)(c) allows the Refugee Status Determination Officer while making an eligibility determination to ‘consider country conditions information from reputable sources’.

PART II THE IMPLEMENTATION OF REFUGEE POLICY IN SOUTH AFRICA

5 DUE PROCESS

ASYLUM DETERMINATION IN SOUTH AFRICA FROM A PRACTITIONER’S PERSPECTIVE: DIFFICULTIES ENCOUNTERED IN THE INTERPRETATION, APPLICATION AND ADMINISTRATION OF THE REFUGEES ACT IN

Lee Anne de la Hunt and William Kerfoot

 Introduction This chapter deals with asylum determination procedures before and after the implementation of the new South African Refugees Act. The framework for our analysis is the administrative justice jurisprudence and practice that has developed in South Africa, especially as measured against international practice. Many of the problems encountered before the Act was passed have continued well into the post-Act implementation phase, demonstrating that it is not enough to have adequate legislation in place, if there is neither the will nor the capacity to implement it correctly. We also examine the difficulties encountered in the interpretation, application and administration of the Refugees Act 1998, which came into effect on 1 April 2000.1 As we shall show, many of the problems encountered in the implementation of the old administrative regime proved also to be of concern in the new administrative regime.

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Constitutional and International Requirements It must be emphasised that the South African Constitution and Bill of Rights stress the importance of administrative justice and equity. While any transitional stage is bound to present problems, this must not compromise the commitment to fair principles. Not only is protective legislation required, but there is also need for an attitude consistent with the South African Constitution, which provides for just administrative action for all persons. In addition, international law provides certain binding measures that South Africa, as party to certain legal instruments,2 is obliged to protect. These binding measures form the basis of a range of guidelines – aimed at promoting and ensuring compliance with these measures – produced not only by treaty institutions such as the United Nations High Commissioner for Refugees (UNHCR), but also international human rights organisations. The UNHCR states in its guidelines that an application for asylum ‘should … be examined within the framework by qualified personnel having the necessary knowledge and experience, and an understanding of an applicant’s particular difficulties and needs’.3 The following minimum recommendations are taken from the UNHCR Handbook and a report by Amnesty International:4 • Border officials or immigration officers should have clear instructions for dealing with refugees, which incorporate adherence to the principles of non-refoulement. They should not be required to make status determinations and should be instructed to identify and refer to the appropriate body anyone who may be at risk if turned away. • A refugee should be given the necessary facilities in order to make an application for asylum, such as the services of an interpreter. In making the initial application and in applying to the authorities for permission to remain in the country pending the request, the refugee should receive guidance with regard to the procedures to be followed. • All asylum-seekers should be allowed access to appropriate nongovernmental agencies that provide advice and assistance to asylumseekers. • When a refugee’s status has been regularised as such, he or she should be informed and given documentation indicating his status. If his or her status is not recognised, he or she should be given the opportunity to appeal against the decision, and given permission to remain in the country pending that appeal. • The body responsible for deciding on claims for asylum must be an independent and specialised authority whose sole and exclusive responsibility is examining and making decisions on asylum claims. • The decision-makers of that independent body must have expertise in international refugee law and international human rights law. Their

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status and tenure should afford the strongest possible guarantees of their competence, impartiality and independence. • The decision-makers of that independent body must be provided with services of a documentation office whose task shall be to impartially collect and provide them with objective and independent information on the human rights situation in the country of origin or any countries to which they might be sent. • All asylum-seekers, at all stages of the procedure, must benefit from the right to legal counsel and interpreters, and the right to contact and have access to the UNHCR. • Asylum claims should be examined through a personal appearance by every asylum-seeker before the independent body responsible for deciding on asylum claims, where there should be a thorough examination of the circumstance of each case. Implicit in both the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and the Amnesty International recommendations5 is a measure of empathy on the part of the determining authority or investigating authority.

Problematic Areas in South African Asylum Procedures The system of asylum determination in South Africa after 1994 and before 2000 fell short of the principles of our Constitution, the Organisation of African Unity, and the benchmarks established by the UNHCR and Amnesty International, and listed above. As illustrated more thoroughly later on in this chapter, many of the problems found prior to implementation have persisted. A number of areas have been identified as particularly problematic, and have sadly continued to manifest themselves in the post-Refugees Act procedures. • Implicit in a fair procedure is reasonable dispatch. Determinations have in some cases taken over three years. • Determinations were made not by an independent panel, but by a Standing Committee staffed by the DHA (itself responsible for asylum determination). Not all members were trained in international refugee or human rights law. • The applicant had no right of audience before the Standing Committee, much less a right of legal representation. • The Standing Committee had before it at its point of decision merely the sketchy details contained in the eligibility determination form, taken by an immigration officer, and his or her recommendations (frequently ignored), together with information on the country of origin, provided by a case worker or administrative officer. Before the Order made in the

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•

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Pembele6 matter, the right of appeal meant that the Refugee Appeal Board saw no problem in ‘rubber-stamping’ the decision of the Standing Committee without giving reasons for their decisions. According to Human Rights Watch,7 the ratio of rejected appeals to successful appeals in 1997 was 519 to 2. When reasons were given, they were insufficient and often flew in the face of internationally available information. Reasons were provided in a letter handed to the asylum-seeker stating that his or her application had been rejected. In many instances, the reasons contained in the letter bore little relation to the individual applicant’s circumstances, but appeared to be a pro forma letter containing a view on the circumstances of the country of origin. An assessment of the reasons given indicates that the Standing Committee considered the majority of applications from the standpoint of a wellfounded fear of persecution. There appears to be no consideration of the Organisation of African Unity definition of an asylum-seeker, and at the same time, virtually no individualisation of the applicant’s case. From discussions with officials in the Department and experience of acting for refugees, it would appear that the only salient point was whether or not (in the opinion of the Department) the country of origin is ‘a refugeeproducing country’ or not. Simply put (in Home Affairs terms), if asylumseekers come from a country that is not ‘refugee producing’, they cannot be regarded as having a well-founded fear of persecution. Asylum-seekers were not automatically given a copy of their statement or a copy of the eligibility determination form, in spite of the lapse of a year or more between the filling in of the form and the rejection of their application. In the limited cases where asylum-seekers are able to obtain legal representation, the DHA provides copies of the initial documentation in most cases.8 The Department did not employ properly trained and professional interpreters.9 Asylum-seekers are often prejudiced by the incompetence of friends or acquaintances interpreting for them, or by the incompetence, partisanship or corruption of some employed by the Department.

Some of the problems faced in the mid-1990s were general ones within the administrative and bureaucratic culture of the South African public service. The level of on-the-job training provided for government officials (who often began their careers with inadequate education) was very low and often non-existent. Moreover, systems for addressing corruption within the public service were generally weak. The inefficiency of the bureaucracy inherited from the various apartheid jurisdictions has been legendary (the current DHA incorporated institutions and personnel from formerly separate departments). Yet the lack of administrative justice on the part of the DHA cannot be laid solely at the door of weak administrative justice within the public service generally.

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However, these administrative failings seem to be magnified in asylum determination procedures. This may have had something to do with the vulnerability of the persons in this process – who are by definition without protection. This may be one reason for the persistence of practices such as denying legal representation or refusing to give reasons to rejected applicants or their legal representatives. This high-handedness was very much part of the public service culture inherited from apartheid, which various local government campaigns are now seeking to eradicate. Undoubtedly, the administration of the asylum determination process presented officials with difficulties, as it demanded new and unfamiliar skills. Owing to decades of apartheid isolation, South Africans were, and have often remained, ignorant of the political climate in other countries, particularly elsewhere on the African continent. They were ill-prepared for tasks that involved a sophisticated grasp of affairs in other countries, a legal understanding of international instruments and the support of personnel such as interpreters.

Failings of Due Process To expand on some of the points made above, perhaps one of the most serious problems encountered by asylum-seekers and their legal representatives before implementation of the Act in 2000 was that of blanket assessments of countries as non-refugee-producing. To make matters worse, these assessments by the DHA were vague and inconsistent and often flew in the face of known facts about those countries. Little effort was made to follow closely or accurately the course of turbulent events in countries that were producing asylum-seekers. For example, the following remarks were made by the Standing Committee in 1997 in justifying the rejection of applications from Angolans: ‘No information is available of any organised harassment or persecution of opposition party members by the Government for their political opinion;’ and ‘Information from national and international sources indicated that the war in Angola has now come to an end and the peace agreement signed in 1994 was successful.’ In contrast to the rosy picture of Angola painted by these remarks, Amnesty International’s Report for 1997 on Angola said the following: [T]he implementation of the Peace Agreement … lagged far behind schedule … UNITA [União Nacional para a Independênica Total de Angola] was reported to be concealing large quantities of military material and thousands of soldiers in Northern Angola, and in its police force … An estimated million or more displaced persons … were unable to return to their homes … Despite the Peace Agreement, there was little security for ordinary citizens … Poorly paid, illdisciplined police and soldiers were also involved in crimes … Fighting continued in Kabinda … There were reports of severe beatings and other ill-treatment by government soldiers and police … Government police and soldiers carried out killings which appear to be extra-judicial executions … UNITA continued to

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hold prisoners. Of the thousands of people who remained in Jamba, hundreds of civilians had been taken there as prisoners … UNITA forces were responsible for torture … UNITA continued to sentence people to death for both political and non-political offences.

Likewise, the Human Rights Watch World Report for 1998, in its report on Angola, stated: ‘the Government … and the armed opposition UNITA restricted freedom of movement, arbitrarily abducted or detained civilians and intimidated journalists. Both sides violated ceasefire agreements: indiscriminate attacks on civilians were a persistent feature of military operations … Between June and September [1997] there were many new reports of troop mobilisation, the movement of military equipment and forced conscription.’ One wonders what information, if any, concerning the situation in Angola the Department drew upon to justify their claims made in letters of rejection. These blanket rejections of refugee status applications were sometimes made in spite of the recommendations of the interviewing officer and regardless of horrifying details of persecution provided by the asylum-seeker. The experience of Angolan asylum-seekers was not isolated. Similar patterns were identified in the case of asylum-seekers who fled Zaire during the last months of the Mobutu regime, and a client who left Pakistan after the military coup. Letters sent by the DHA refusing status in these cases showed no awareness of the true state of turmoil in these and other countries. Even worse, in 1999 the Department cancelled approximately 3,000 applications for asylum from applicants from countries such as Tanzania, Senegal and Nigeria on the basis that they were not from ‘refugeeproducing countries’ and were ‘economic migrants’. Here, the Standing Committee’s reliance on blanket assessments of countries seemed to suggest that a country that produced economic migrants could not, by definition, produce asylum-seekers. Another major failure of due process concerned the fact that asylumseekers were not granted a hearing before the Standing Committee. The following bureaucratic error, for example, would have been avoided by the right to a hearing.10 After a Burundian national had his application refused, the Legal Resources Centre (LRC) spoke to a senior official at the DHA, who agreed to investigate the matter. She reported back that the Department had UNHCR confirmation and photographic proof that the LRC’s client had sought asylum in Malawi. The client denied ever having been in Malawi in his life, so the LRC had to submit an affidavit with his photograph. Upon receiving this, the official (to her credit) conceded the injustice. It is suspected that the asylum-seeker in Malawi had the same surname as the client, but bore no resemblance to him. More errors arose through the use, or attempted use, by the Department of expedited asylum determination procedures. These often interpreted the concept of ‘manifestly unfounded’ so broadly that any apparent contradiction in the asylum seeker’s statement was grounds for rejection.

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Old Dogs and New Tricks: Difficulties Encountered in the Interpretation, Application and Administration of the Refugees Act 1998 and Regulations Since the Refugees Act No. 130 of 1998 was passed and implemented in April 2000, and regulations promulgated, many of the problems identified under the previous determination regime and many of the decisions and policies carried out continue to point to either ignorance of or disregard of the Constitution and the Conventions governing refugees. In other words, many of the problems that had their origins in the previous regime, such as widespread inefficiency, persisted in the post-2000 status determination regime. The interpretation, application and administration of the Refugees Act has proved to be problematic in many respects, including the fact that Refugee Status Determination Officers (RSDOs), who took over from the Standing Committee in making status determinations have been both understaffed and undertrained. In addition, Refugee Reception Officers (RROs) seem to have inherited the behaviour of the former influx control officials, whose poor treatment of (black) foreigners was notorious, marked by a lack of respect and consideration of their situation. On the other hand, the Standing Committee and Appeal Board’s interpretations of their functions have already had a considerable impact on the implementation of the Act, although the High Court has, up until now, made only a limited contribution to refugee jurisprudence. As such, the comments on the interpretation of the Act are based on the authors’ interviews with lawyers and other refugee advocates, the Appeal Board and, to a lesser extent, officials from the Department.11

Policy on ‘Internal Flight Alternative’ The internal flight alternative12 had, particularly under the earlier refugee determination regime, often been referred to in both rejection letters and Appeal Board hearings. The Department did not seem to accept that the provision ‘seriously disturbing or disrupting public order in either part or the whole of his or her country of origin or nationality’ precluded a finding that protection could be denied on the basis that the asylum-seeker could have found protection in another area of the country. It is not clear on what basis the Refugee Status Determination Officer or Appeal Board member considered that it was reasonable for the asylum seeker to have accessed the internal flight alternative. A lawyer who has represented many clients before the Board was critical of the burden of proof placed on the appellant,13 particularly since the Board seemed to require the appellant to show objectively, and at the time of the hearing, that no other options were available to him or her. This impression was confirmed by one member of the Appeal Board, who stated to the present authors that ‘the onus is on the

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asylum seeker to discharge the burden of proof that all domestic remedies, including the relocation alternative, have been thoroughly exhausted before surrogate protection is justified’.14

Policy on Use of the OAU (Extended) Definition of a Refugee As explained earlier in this collection, South Africa’s Refugees Act incorporates the broader definition of a refugee in the light of the OAU Convention Governing Specific Problems of Refugees in Africa. From discussions with both lawyers and Department officials, it would seem that the official view is that the extended OAU definition15 applies only to refugees who are from Africa. Therefore, unless an asylum-seeker faced persecution as an individual in Afghanistan, he or she would not receive protection, whereas a person from Côte d’Ivoire in a similar situation would.16 A plain reading of the Act does not support this view. According to the Appeal Board, most approvals of refugee status relate to asylum seekers from the war-torn Great Lakes region, and decisions are largely based on section 3b of the Act. Lawyers, however, were under the impression that, for asylum-seekers from African countries,17 most officials focus on the UN definition and, in particular, persecution based on political opinion or social group or ethnicity.

Definitions Contained in the Act and Regulations The Refugee Definition and Principle of Non-refoulement In view of the significance of the principle of non-refoulement, the White Paper Task Team, which drafted the Refugees Bill, recommended that section 2 of the Refugees Act contain a general prohibition of refusal of entry, expulsion, extradition or return to another country in certain circumstances. It should be noted that, as with the OAU Convention, the Act permits no exceptions to the principle. The definition of a person who qualifies for refugee status in terms of the Act largely follows the definitions contained in the UN and OAU refugee Conventions. There are one or two differences in wording and the purpose of the deviation in the Act from the Conventions is not clear. Subsection (a) (which reflects the UN definition) extends the list in Article 1 A (2) of that Convention to include ‘tribe’, but omits ‘owing to such fear’, which qualifies the clause ‘unwilling to avail himself of the protection of that country’ in the UN and OAU conventions. Subsection (b) (which reflects the OAU extended definition) follows the wording of Article I (2) of that Convention, except that the words ‘in order to seek refuge in another place outside his country of origin or nationality’ are replaced by ‘in order to seek refuge elsewhere’.

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Limiting and Expanding Access to Asylum Fraudulent Applications for Asylum Subsection 1(xi) of the Refugees Act provides a narrow definition of a ‘fraudulent application for asylum’. For the Department to show that an asylum application is fraudulent, it has to establish intention, specifically that the application was based ‘without reasonable cause on facts, information, documents or representations which the applicant knows to be false’. Furthermore, such facts, information, documents or representations ‘must be intended to materially affect the outcome of the application’.

Challenge to the Safe Third Country Principle Subsection 1(v) of the Refugees Act states that ‘“asylum” means refugee status recognised in terms of this Act’. In effect, the definition of asylum contained in the Act precludes the Department from accepting that an applicant is a refugee on the basis that he or she meets the requirements in the definition, and then refusing to grant asylum on the basis that he or she should have applied for asylum in another country. In terms of section 24 of the Act, a Refugee Status Determination Officer cannot make such a finding, as the only options open to him or her are to (1) grant asylum, (2) reject the application as manifestly unfounded, fraudulent or abusive, (3) reject the application as unfounded or (4) refer any question of law to the Standing Committee. Should an asylum-seeker meet the requirements of section 3 and not be excluded in terms of section 4, status must be granted. It is clear from many letters of rejection issued by the DHA that the Department takes the view that the provisions of the Act do not preclude them from refusing status on the basis that the asylum-seeker has travelled through one or more safe countries en route to South Africa, and could have sought asylum elsewhere: the so-called ‘safe third country policy’. This principle was successfully challenged by Lawyers for Human Rights in 2001. However, unfortunately these aspects of DHA’s obligations under the Act were not thoroughly examined by the Pretoria High Court in the case brought by Lawyers for Human Rights, which was challenged primarily on the basis of section 2, the prohibition on non-refoulement.

Denying Refugee Status: Exclusion The section in the Act on exclusion is problematic; instead of excluding persons on the basis that the asylum country has ‘serious reasons’ for considering that they are not deserving of protection, section 4(1) states that ‘A person does not qualify for refugee status for the purposes of this Act if there is reason to believe that her or she …’. This is clearly a standard lower than that required in international law.

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Likewise, section 4(1)(b), instead of using the adjective ‘serious’ as in the Article 1 F of the UN convention and Article 5 (b) of the OAU Convention, refers to a crime ‘which, if committed in the Republic, would be punishable by imprisonment’. The wording of the Act does seem to imply that only crimes committed outside South Africa are to be considered in excluding someone from refugee status. This is despite the fact that the Act replaced the phrase ‘he committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee’ with the phrase ‘he or she has committed a crime which is not of a political nature and which, if committed in the Republic, would be punishable by imprisonment’. Further, instead of incorporating the wording of Article 1 E of the UN convention and Article 3 of the OAU convention, section 4(1)(b) excludes a person who ‘enjoys the protection of any other country in which he or she has taken residence’. Finally, section 4(1)(c) excludes those who act contrary to the objects and principles of the UN or the OAU. However, a progressive step is made by the inclusion of section 4(2), which states that ‘[f]or the purposes of subsection 1(c), no exercise of a human right recognised under international law may be regarded as being contrary to the objects and principles of the United Nations Organisation or the Organisation of African Unity’.18

Loss of Refugee Status: Cessation The cessation clause of the Refugees Act generally follows the UN and OAU Conventions, except a provision contained in section 5(1)C of the Act that the voluntary acquisition of a new nationality includes a refugee who ‘becomes a citizen of the Republic’. Clauses not included in the Act include provisions similar to that in Article 4(f) and (g) of the OAU convention regarding the commission of a serious non-political crime outside the country of refuge after his or her admission to the country of asylum, and the infringing of the purposes and objectives of the OAU Convention. Where, in the opinion of the DHA, a refugee ceases to qualify for protection in terms of the Act, his or her status can only be withdrawn after the Standing Committee informs the refugee of its intention of withdrawing status and the reasons therefore, and gives the refugee an opportunity to make representations. The refugee is, of course, entitled to have any decision concerning him or her made in conformity with the law relating to just administrative action.19

Incorporating the Constitution’s ‘Equality Clause’ Usefully, subsection 1(xxi) reflects the ‘equality clause’ in the South African Constitution, serving to clarify that a ‘social group’ includes, among others, ‘a group of persons of particular gender, sexual orientation, disability, class or caste’, thus saving our courts the trouble of deciding whether and which

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jurisprudence to apply if faced with claims based on, for instance, gender or sexual orientation.

Interpretation, Application and Administration of the Act and Delegation of Powers and Duties It is interesting to note that the Act explicitly mentions that it must be both interpreted and applied with due regard to the refugee conventions and protocols, the Universal Declaration of Human Rights and ‘any other relevant convention or international agreement to which the Republic is or becomes a party’.20

Structures Set Up to Implement the Act This chapter will not discuss in detail the structures set up to implement the Refugees Act.21 In brief, the Minister is empowered to establish Refugee Reception Centres. These centres are staffed by at least one Refugee Reception Officer and one Refugee Status Determination Officer. The Standing Committee has oversight of the Refugee Reception Officers and their staff, and is responsible for managing the asylum process. The Standing Committee is appointed by the Minister, and must consist of a Chairperson and a number of other members.22 At least one of the members must be legally qualified.23 The Act provides that the Standing Committee must function independently and be without bias. In the case of Watchenuka and Another v The Minister of Home Affairs and Others,24 the judge expressed the view25 that the composition of the present Standing Committee indicated that it could not, and did not, function independently. In this case, and in a number of other cases against the Minister of Home Affairs, a member of the Standing Committee (and an official employed in the Department) filed an opposing affidavit on behalf of not only the Standing Committee, but the Minister and the Director-General as well. She was an official employed in the Department of Home Affairs.26 Subsequent to the decision in the Ruyobeza case,27 which confirmed the view of the court in Watchenuka, the Standing Committee was reconstituted as an independent body. Finally, the Minister is empowered to appoint an Appeal Board. This body also consists of a Chairperson and other members, and at least one member must be legally qualified. This body is also required to function independently and without bias, and makes its own rules. In the view of at least one lawyer who has argued numerous cases before the Board, both under the ‘old’ and under the ‘new’ system, the Board has, in recent years, on the whole, functioned rather well and has not been afraid to exercise its independence. However, such improvements have not prevented ‘logjams’

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from developing, whereby some judgments have taken as much as two years or more to be issued.

Making an Application for Asylum Lodging an Application Applications for asylum must be made in person and lodged at a Refugee Reception Office28 without delay.29 An ‘Eligibility Determination Form for Asylum Seekers’ must be completed in duplicate.30 This fairly comprehensive, nine-page application form includes questions relating to the applicant’s personal details, country background and reasons for applying for asylum. A Refugee Reception Officer must accept the application form from the applicant, see that it is properly completed and, where necessary, assist the applicant.31 If necessary, the Refugee Reception Officer must conduct an enquiry to verify information furnished by the applicant.32 He or she must also see to it that adequate interpretation is provided in terms of Regulation 5,32 and that unaccompanied children and mentally disabled persons who appear to qualify for refugee status are assisted in making an application.34

Access to the Asylum Process This section, which analyses asylum-seekers’ access to the asylum process, is based on extensive interviews by the authors, primarily with legal practitioners and administrative officials. One of the major difficulties in applying for asylum is the difficulty in accessing the system. Access to the system is important, as asylum-seekers without permits are vulnerable to arrest and detention. Practically speaking, it has been difficult getting into the Refugee Reception Office and obtaining a date for an interview. Legal practitioners and other refugee advocates have received numerous allegations35 that access to the system is easier if you have money to bribe an interpreter, security guard or Department official. Furthermore, trying to gain access to the centre day after day jeopardises the employment of those asylum-seekers who have been able to find work.36 Asylum-seekers queue from the early hours of the morning and a number sleep overnight outside the Refugee Reception Offices. Women and children are supposed to receive priority, but in some instances, they too have been asked to pay bribes or are jostled to the back of the queue. The result is that it takes many asylum-seekers months to ‘get into the system’ or at least onto the Department’s computer system, and therefore to be able to apply for asylum as set out in the Act.37 Once entry to the building is secured, this does not mean that an asylumseeker will be interviewed by a Refugee Reception Officer. He or she may be handed a letter with an appointment for some future date. At some

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offices, asylum-seekers are given letters valid for fourteen days, which are extended if they cannot be dealt with on the day of their return. There have also been reports of asylum-seekers from particular countries not being allowed to apply for asylum.38 Furthermore, children without guardians have been turned away from some offices. Some individuals have alleged that the DHA has sent away asylum-seekers from certain countries without identity documents or passports.39 Apparently, at one office each Monday, the first twenty people without documents were allowed into the office. The Department then sent the remaining asylum-seekers to a refugee service provider40 or a country-based refugee committee or centre,41 with a letter asking them to verify the asylum-seekers’ nationality.42 Access to the asylum process at ports of entry is even more problematic. As is the case elsewhere, South Africa imposes carrier sanctions on airlines and other transporters, should a passenger land without a valid visa. One Somali woman arrived in Johannesburg en route from Pakistan to Mozambique. The airline was not prepared to let her continue to Mozambique, and she was sent back. The South African Human Rights Commission became involved in negotiations with the airport company and the Department regarding asylum-seekers who arrived without papers, but it seems that the practice is continuing. In 2002, Lawyers for Human Rights brought an application to compel the Department to allow an asylumseeker at Johannesburg International Airport (whom they were trying to deport) to submit an asylum claim.43 As far as other ports of entry are concerned, some report that refugees are detained at borders due to problems with their travel documents. It is very difficult to monitor the extent to which asylum-seekers are turned back at the borders. There is lack of scrutiny at the borders, and immigration officers are not trained or empowered by the Act to assess asylum cases. An asylum seeker arriving at the border does not have access to UNHCR, legal representation or interpreters. However, many lawyers who act for asylum-seekers report that their clients generally do not cross into the country at the border posts, but enter illegally. A departmental circular was issued to immigration officers at border posts shortly before the implementation of the Act, stating that people arriving with fraudulent documents should be detained. If they are detained and they are asylum-seekers, they are to be held until their status is determined.44 Access to the asylum process was the subject of a specific legal action in the Kiliko case, in which the judge declared that the admissions procedures at RROs were ‘inconsistent with the fundamental rights’ of the applicants.45 The judgment of the Court in this case included a structured interdict, requiring the Department to improve the admissions procedures at RROs and to report back to the Court on their progress. At the time of writing, the lawyers involved in this case were still concerned that, while some changes had taken place, their remained considerable problems still to

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be overcome, such as the issuing of slips of paper instead of formal section 22 permits to applicants, which left them vulnerable to arrest and detention.46 However, the long-awaited backlog project (see Chapter 6 of this volume) had finally been put in place, with the stated aim of not only reducing the extensive backlog of applications, but also improving the efficiency of the Department’s admissions and determination procedures.

Problems with Interpreters The Act provides in section 38(1)(f) that the Minister may make Regulations for the provision of interpreters at all levels of the determination process. The Regulations, however, merely provide that ‘where practical and necessary, the Department of Home Affairs will provide competent interpretation at all stages of the asylum process’.47 If the Department is not able to provide translation, it is up to the applicant to provide an interpreter. In a survey conducted for the NCRA Report,48 lawyers and refugee advocates, as well as Department officials, listed interpretation (and interpreters) as one of the major problems with the implementation of the Act. Immediately prior to the implementation of the Act, the DHA employed interpreters at most of the Refugee Reception Offices. Now, interpreters work ‘freelance’ at all the centres. Either the asylum seeker arrives at the Reception Office and takes ‘pot luck’, or else he or she must bring an interpreter, who usually requires payment. Generally, interviewees felt that, in order to provide a reasonably competent service and to avoid corruption, interpreters should be employed and trained by the Department. No system of recruitment exists presently. At present, it is difficult to get interpreters for a number of languages and dialects. Interpreters receive no training. Although the Regulations state that the interpreter ‘must be competent to translate a language spoken and understood by the applicant, to a language spoken and understood by the Refugee Reception Officer or Refugee Status Determination Officer, and vice-versa’,49 there is no method in place to test competency. Interviewees gave examples of interpreters who did not understand the basics of refugee law and who confused the word ‘persecution’ with ‘prosecution’. A number of interpreters did not translate word for word, but paraphrased or reworked the asylum-seeker’s story. Interpreters have had to be replaced due to poor translation. Interviewees alleged that, at some Refugee Reception Offices, interpreters operated as ‘gatekeepers’ to the system. By paying them, one could get into the building and be processed. They alleged that Department officials were aware of the situation, and sometimes vouched for individual interpreters. There is also a perception that interpreters help asylum-seekers with their stories, and that the amount paid determines the success of the application, with reports of asylum-seekers being told what to say in their initial applications. These claims, however, are largely based on hearsay.

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Nevertheless, it is clear that interference by interpreters, well-meaning or otherwise, threatens to undermine the entire system.50 To further complicate matters, the DHA regularly disregards confidentiality. Files and application forms are left on desks in open view. Interpreters and other officials speak loudly about details of cases in earshot of other asylum-seekers and colleagues. Interpreters appear to have free run of many of the centres, and therefore have access to applicants’ files. Often, the interpreters collect permits for internal distribution.

Asylum-seeker Permits In August 1998, by means of an internal memorandum, the DHA directed that asylum-seekers could only renew their asylum-seeker permits at the office where they originally applied for asylum. Lost or destroyed permits would not be replaced,51 and anyone who did not renew his or her permit timeously would be arrested, detained and deported. The issuing of an urgent application in the Cape High Court the day before his deportation in breach of the principle of non-refoulement saved a Mr Garcia from being sent back to Angola for having failed to renew his permit on time, and the Department undertook not to take such action thereafter. However, the DHA persisted in requiring asylum-seekers to renew their permits at their original offices, until an urgent application was lodged for a Mr Pavlov. As the state attorneys representing the Department were clearly in good faith when undertaking that the DHA would not continue with this practice, the Legal Resources Centre did not insist on making the undertaking an order of Court. However, the LRC had to launch similar applications at least once thereafter – as did colleagues in Gauteng – before the Department abandoned this absurd and inhumane requirement. Insisting that an asylum-seeker renew his or her permit at the centre where the first application was made violates his or her right to freedom of movement. The South African state provides no social assistance for asylum-seekers, and assistance provided by the UNHCR through implementing partners is limited. Few asylum-seekers are able to afford to travel from one city to another for the purposes of renewing his or her permit. The LRC and the UCT Legal Aid Clinic made numerous, futile representations to the Department to require the renewal of permits on a six-monthly rather than a three-monthly basis, in view of the practical hardships that scores of asylum-seekers are forced to endure as a result. Many have to sleep outside the Cape Town Refugee Affairs offices to avoid being turned away. On some days, even those who arrive as early as 5:30am are not processed that day. Instead, they get a slip of paper stating that they should return the following week – by which time their permit would have expired, making them vulnerable to arrest. The effect on the morale of asylum-seekers and the prejudice to their employment can be imagined. Yet, in spite of the Department’s lack of capacity to cope with the numbers of

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renewals and a spiralling backlog, after a phase of granting renewals valid for up to six or nine months, at the time of writing it had, once again, imposed only a three-month renewal period. In terms of section 22 of the Act and Regulation 7, an asylum-seeker is to be given an asylum-seeker permit. If a person enters South Africa and is in violation of the Aliens Control Act, and has not submitted an application for asylum, but indicates that he or she intends applying for asylum, then a temporary permit shall be issued valid for fourteen days to enable him or her to approach a Refugee Reception Office to complete an asylum application.52 Although neither the Regulations nor the Act provide for this, it can be assumed that, should an asylum-seeker report at a port of entry and ask to apply for asylum, he or she should be issued with a temporary permit and directed to a Refugee Reception Office. The Act provides that ‘an application for asylum must be made in person in accordance with the prescribed procedures to a Refugee Reception Officer at any Refugee Reception Office’.53 It therefore follows that an immigration officer at a port of entry cannot receive an application for asylum and adjudicate the application. For a number of reasons, implementation of permit distribution has been difficult. Due to limited resources – staff and computers – asylum-seekers who reported to Refugee Reception Offices received letters valid for fourteen days. These letters directed the asylum-seeker to return to the centre for an interview with the Refugee Reception Officer. These letters carried no legal weight, and asylum seekers were arrested. In November 2000, however, the Department issued a circular directing that section 22 permits could be issued as a replacement for appointment letters issued to asylum-seekers who cannot be attended to at Refugee Reception Offices. However, asylum-seekers were not informed that the validity of these permits would not count towards the 180-day period within which an application for asylum was to be finalised. This should have been endorsed on the permits.54 Thereafter, DHA issued permits that looked like section 22 permits. But the photograph was not computer-generated and it did not have a bar-code number. On a number of these permits, ‘not in terms of the Act’ was written by hand. This circular was clearly ultra vires, and the LRC subsequently launched an application in the Cape High Court challenging the issuing of these permits.55

Adjudication within 180 Days/Prohibition on Work or Study Problems experienced with asylum-seeker permits have been compounded by Regulation 3(1), which states that ‘applications for asylum will generally be adjudicated by the Department of Home Affairs within 180 days of filing a completed asylum application with a Refugee Reception Officer’.56 While this in itself was a laudable objective, there were difficulties with the related

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and controversial provision that asylum seekers were not permitted to work or study during this period.57 Though the Regulations do provide that, for applications exceeding 180 days, the work/study prohibition can be lifted by the Standing Committee, which Watchenuka sought to address, this has not been sufficient. What has also been problematic is that both the initial ‘fourteen-day letters’ and – ‘not-in-terms-of-the-Act permits’ were often extended time and again before an asylum-seeker was at last interviewed by a Refugee Reception Officer. The Department would only start counting the 180-day period only from the interview onwards, which was usually also the date on which a ‘proper’ asylum-seeker permit was issued.58 When asylum-seekers did finally get section 22 permits, they would have no proof of their initial date on their old permits, because the Department retained the old permit. A related problem is that the Department does not keep a record of appointment letters or ‘not-in-terms-of-the-Act’ permits, so there is no way to go back and check to see when a person tried to enter the system. It remains extremely difficult to obtain relief from the conditions imposed on the asylum-seeker permit after the 180-day period. The Standing Committee has rarely responded to lawyers’ letters asking that the prohibition be lifted,59 and few refugees know that this is an option. Occasionally, Refugee Reception Officers randomly lift the restriction by hand, although, strictly speaking, this cannot be done without specific instructions from the Standing Committee. In the Watchenuka case, the Court accepted the applicant’s argument that these conditions were an unreasonable and unjustifiable limitation of the asylum-seekers’ right to work and study.60

Detention of Asylum Seekers If the Minister withdraws an asylum-seeker permit, subject to certain restrictions,61 an asylum-seeker may be detained pending finalisation of the asylum process. Refugees are often detained because their asylum permits have not been renewed on time. Refugee lawyers and other NGOs frequently assist asylum-seekers who have been detained. Generally speaking, they are released and not detained pending finalisation of the asylum process, as immigration officials are eventually persuaded that it was not possible for the asylum-seeker to comply with the condition to renew his or her permit on time.62

The Adjudication Process Although earlier versions of the Refugee Bill provided for an oral hearing and imposed a duty on the Refugee Status Determination Officer to lead evidence (i.e. to explain their decision) and to explain to the applicant the right to representation, the Refugees Act provides that the ‘Refugee Status

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Determination Officer must have due regard to the rights set out in section 33 of the Constitution, and in particular, ensure that the applicant fully understands the procedures, his or her rights and responsibilities and the evidence presented.’63 This leaves open the question of the precise nature of the proceedings. However, the word ‘hearing’ was retained.64 The Regulations define ‘hearing’ as ‘an informal, – non-adversarial interview with a Refugee [Status] Determination Officer’. The Regulations set out the manner in which the Refugee Status Determination Officer will conduct the hearing ‘to elicit information bearing on the applicant’s eligibility for refugee status and ensure that the applicant fully understands the procedures, his or her rights and responsibilities and the evidence presented’.65 The Refugee Status Determination Officer may ask questions to verify the identity of any interpreter,66 or dependants,67 as well as receive evidence.68 The Refugee Status Determination Officer may question the applicant and witnesses.69 The applicant is obliged to answer questions relating to his or her identity and that of any dependants.70 Reasons for seeking asylum71 and any possible grounds for exclusion are also subject to questioning.72 The applicant has a right to representation at his or her own cost.73 The involvement of the representative in the hearing is limited to making statements or comments on the evidence presented.74 The Regulations do not stipulate as to the qualifications of the representative. The onus is on the applicant to show that he or she is a refugee as defined in the Act, and not excludable in terms of the Act.75 However, ‘in the absence of documentary evidence, an applicant’s credible testimony, in consideration of conditions in the country of feared persecution or harm, may suffice to establish eligibility for refugee status’.76 As with the initial interview, it is difficult for asylum-seekers to get an appointment with a Refugee Status Determination Officer. Refugee Status Determination Officers are frequently unprepared. They do not know enough about country conditions and do not ask relevant questions. To improve the quality of the status determination hearing, a more uniform process needs to be established. The Refugee Status Determination Officers must be better prepared, and provide a better environment and schedule. If they work to time limits and have to give decisions within a set time, they will be more inclined to conduct a better interview. Refugee advocates questioned the recruitment and qualifications of many of the RSDOs and their understanding of the principles of administrative justice. People interviewed felt that many officers operate on an ‘anything goes’ basis, and that the officers are not properly supervised. The Appeal Board is, however, of the opinion that the quality of their decisions is improving. A very small minority of asylum-seekers are legally represented at the status determination stage of the process. Therefore, most lack proper understanding of the law and the process. One lawyer described this as ‘running a hurdle race blindfolded’. Asylum-seekers are asked about issues

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such as the internal flight alternative and safe third countries, without having been instructed on the process, what terms such as these imply legally or how to prepare themselves for the interview.

The Decision At the conclusion of the interview, the Refugee Status Determination Officer has four choices at his or her disposal. He or she must either: (1) grant asylum; or (2) reject the application as manifestly unfounded, abusive or fraudulent; or (3) reject the application as unfounded; or (4) refer any question of law to the Standing Committee. The Regulations state that the applicant must return to accept in person the decision from the Refugee Status Determination Officer. If the application is rejected, the Refugee Status Determination Officer must give written reasons within five working days of the date of rejection or referral. With regard to the decisions of the Refugee Status Determination Officers, and in particular the rejection letters, refugee advocates were particularly critical. Advocates observed that letters seemed to be cut and pasted from letters used previously. These are recycled, often without any updating or acknowledgement of the changing conditions in many countries.77 Many rejection letters fail to deal with the actual basis of the refugee claim.

Appeals The Refugees Act provides for review of a decision that an asylum application is manifestly unfounded, abusive or fraudulent by the Standing Committee, and appeal of an application rejected as unfounded by the Appeals Board.

Review by the Standing Committee A decision that a claim is manifestly unfounded, fraudulent or abusive is automatically reviewed by the Standing Committee. The Act does not provide an asylum-seeker with an opportunity to make representations to the Standing Committee. In contrast, an asylum-seeker was afforded such an opportunity under the procedures that existed prior to the implementation of the Act. A rejected applicant may, of course, take the decision of the Standing Committee to uphold the Refugee Status Determination Officer’s decision to the High Court. Until recently, the Refugee Status Determination Officers have been rejecting claims as being unfounded, rather than making decisions that claims are manifestly unfounded, fraudulent or abusive. For a brief period in the early years of the Refugees Act’s implementation, the Standing Committee determined manifestly unfounded solely on the basis of the RSDO’s submission. The applicant did not have a right to make

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submissions in light of the RSDO’s finding. However, to its credit, the Standing Committee later acknowledged that this process was not in conformity with administrative justice and asylum-seekers were provided with a document informing them of their rights to make submissions to the Standing Committee. In the first half of 2006, the Department invoked the “manifestly unfounded” provision to issue virtually blanket rejections of asylumseekers’ claims for refugee status. In a case of one group of asylum applicants from Zimbabwe, whose matters were handled by a lawyer in Johannesburg, the Department allegedly gathered the applicants in a parking lot to deliver their refusals as a single group.

The Appeal Board Should the Refugee Status Determination Officer reject an application as unfounded,78 the asylum-seeker is entitled to appeal the decision and must do so by lodging an appeal to the Appeal Board within thirty days of receipt of the Refugee Status Determination Officers letter of rejection.79 The appeal must be lodged by the asylum seeker in person at a Refugee Reception Office.80 The Act states that ‘the Appeal Board may after hearing an appeal confirm, set aside or substitute any decision taken by a Refugee Status Determination Officer in terms of section 24(3)(c)’.81 A hearing implies that the asylumseeker should be given an opportunity of being present at the hearing. All the lawyers interviewed in the study for the NCRA Report82 had appeared before the Appeal Board on a number of occasions – before and after the implementation of the Act. A fundamental problem was that the record (the application form, the Refugee Reception Officer and Refugee Status Determination Officer’s notes) was invariably inadequate, and the case had to be heard de novo.83 Lawyers complained that although they were entitled to prepare and submit documents to the Appeal Board before the hearing, members of the Board read neither the documents nor the record. The Appeal Board, however, complained that, apart from two or three lawyers who appear before them on a regular basis, most lawyers did not provide written heads of argument before a scheduled hearing. The Appeal Board also noted that a number of legal representatives they saw had a limited understanding of refugee law and based their arguments on the economic prejudice their client would face should he or she have to leave South Africa. Appeal Board members also complained that they experienced difficulty in getting the Department to release the files to them before appeal hearings. In the past, Board members questioned the appellant on differences between the version of their story contained in the record and what they said at the appeal hearing. While in theory such questions were meant to test the credibility of the appellant, the problem was that incompetent and

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often corrupt officials (Refugee Reception Officers, Refugee Status Determination Officers and interpreters) ‘created the record’. The initial interview was never at any point read back to the applicant for verification, so the applicant never knew if their authentic and original story had in fact been put into the record. Appeal hearings were frequently held without interpreters, and circumstances were not conducive to a fair hearing. Cellphones would ring and other proceedings could be overheard. The questions asked of the appellant – illustrated in the NCRA Report84 – seemed to follow a fairly predictable pattern and bore no relation to the individuals’ specific situation. The answers to many of the questions asked, such as the appellants’ date of birth, appeared several times in the documents, and lawyers expressed frustration that what they felt to be the more important issues raised in the documents85 were not canvassed in the hearing. Lawyers commented that Board members did not necessarily have an understanding of the political situation in certain countries.86 They also questioned whether in fact the Appeal Board was independent of the Department as a whole, or even the Standing Committee. It was felt that it was imperative that refugee tribunals be independent, and there was doubt that this could be the case while it remained under the administration of the Department. The fact that the Appeal Board is no longer in the same building as the Department in Pretoria has gone some way towards establishing independence. A suggestion was even made that the Appeal Board fall under the administration of the Department of Justice.87 The lack of resources, as well as the fact that the Appeal Board makes decisions on appeals in committee, rather than as individual adjudicators,88 means that the outcomes of appeals often take a long time to reach the appellant. The Appeal Board itself would prefer a system of individual adjudicators to deal with the growing backlog. Lawyers have reported waiting for two years or more for decisions. It would be fair to distrust decisions made by members of the Board so long after they had actually heard the matter, particularly as many of the rejections are based on a lack of credibility. The delays particularly prejudice appellants with strong claims, who may have to wait months for the entitlements that come with the granting of refugee status. Lawyers have, on the one hand, reported that the quality of decisions by the Appeal Board has improved substantially over the past four years, which is likely related to the considerable training that Appeal Board officials received at the time of the early backlog projects (see Chapter 6 of this volume). On the other hand, lawyers have complained that the time period within which decisions are taken remains unacceptably long.

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General Observations from Practitioners Asked to comment on the implementation of the Refugees Act as opposed to the previous system, refugee lawyers and NGOs interviewed for the NCRA Report89 felt that, while the Act and the Regulations were satisfactory as documents, there were a number of problems with the implementation of the Act. The DHA’s insistence on the three-monthly renewal of both asylum seeker permits and refugee status was identified as particularly troublesome, as were attempts to force asylum-seekers to return to the office where they originally applied for asylum. The major criticism of the regulations has, predictably, been the prohibition on work and study for the first 180 days of the application, and the difficulty in having this restrictive condition removed from the permit. This provision has reduced asylum-seekers complying with this provision to beggars, and, in the absence of any welfare provisions, it has threatened to create a criminal underclass. Asylum-seekers have been forced to work illegally and in some desperate cases to steal to survive. Asylum-seekers who work illegally have been placed at risk of losing their permits and being detained pending the finalisation of their application.90 During the initial stages of the implementation of the Act, the Department processed applicants fairly quickly. However, for some time this has no longer been the case. Applicants have been incorrectly entered onto the computer system, or not entered at all. According to one source, a number of early decisions were incorrectly determined, and are now being reassessed. The same person who reported this felt that there was insufficient training for officials on the Regulations at the time of implementation, which has led to uncertainty. One example given was the lack of consistency around issues such as the links between refugee and immigration law and policy. Another example relating to inconsistency has been the operation of the exclusion clause. On a positive note, those interviewed mentioned that the Act gave them a sense of the legality of the process. They felt that the old system was flawed in many ways, and complained that everything was dealt with on an ad hoc basis. Indeed, from the point of view of certainty of the procedures for the determination of status, matters have improved, and there seems to be a set of standards to be met, for instance, the time period for adjudication. However, some interviewees have felt that under the previous system, there was more consistency regarding decisions on asylum adjudications, as there was one decision-maker, the previous Standing Committee. It was felt that, even in the same Refugee Reception Centre, there have been inconsistent decisions on similar cases from the same country of origin. A number of people responded positively to changes in the appeals process. The Appeal Board had, in anticipation of the implementation of the Act, implemented a system of oral hearings at the regional offices. It was felt that these lend legitimacy to the process.

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Other problems raised by those asked to comment included: • The failure of the Department to adhere to orders of court, or to recognise at one office an order or agreement made an order of court in another jurisdiction. • Lack of communication between Refugee Affairs and the South African Police Services. • Lack of systematic management of the directorate and the process. • Seldom receiving a response to correspondence sent to Refugee Reception Offices. • Lack of awareness on the part of officials of the importance of their work. • There is no formal process for effectively distributing DHA internal policy circulars, either within offices of the Department or to practitioners in the field, with the result that some officials have had to pass these ‘secretly’ to lawyers and NGOs, suggesting a lack of transparency. • The need for more resources on the part of the Department and for those resources it has at its disposal to be properly used. • The manner in which asylum-seekers and refugees are handled, which gives the impression that South Africa is trying to discourage people from seeking asylum here.

Corruption Everyone interviewed raised the issue of corruption. Lawyers and refugee advocates explained that among the reasons this problem has been so difficult to tackle is that their clients were seldom prepared to lay charges against the individuals involved for fear of reprisals. Both the UCT Legal Aid Clinic and the Wits Law Clinic have acted for refugees who have assisted in investigations and suffered the consequences.91 Corruption is believed to be widespread and ‘fairly basic’, as described by one lawyer. For instance, it is alleged, that if one goes to the Rosettenville Refugee Reception Office in the morning, Asians will not be seen in the queue. They will arrive later in the day after everyone else has been sent away. It is alleged that money still passes hands (apparently handed over in matchboxes or in paper bags), and only after this are they allowed into the building. There have been instances where refugees have complained about being asked for money. In one case, the refugee involved wrote to the Department and was asked to attend the office and point out the person against whom he had complained. He had to do so in front of the entire office. It was, and still is, difficult to know which official is corrupt, as an equally reprehensible security guard or interpreter could be acting as go-between. In this case, the person picked out in this ‘line-up’ became angry and threatened the refugee, who then consulted a lawyer. The refugee wrote a

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letter of complaint to the Regional Director and requested a disciplinary hearing. A hearing was apparently held, but no action was taken against the official concerned. The lawyer was never notified of the outcome. Much of the information regarding corruption has been hearsay, reported to lawyers by their clients.92 There have also been people outside the Department who have been able to forge documents, and there are allegations that they have been able to do so effectively with assistance from those within. Lawyers in Durban and Cape Town have felt that corruption was not as bad in their cities as in Gauteng. Once again, this has been an impression that lawyers have gained from their clients. Allegations of corruption have also been made against staff at the Lindela Centre and the police. Clients have alleged that certain nationalities have been targeted and that police officers made money for the weekend by threatening to tear up permits unless they were paid not to. Although allegations have been made that there is corruption at all levels within the Department, few suggestions have been made to counter it. Where suggestions have been made, they have not been followed up. For instance, it has been suggested that NGOs set up advice desks at each of the Refugee Reception Offices. These desks could be staffed on a rotational basis to serve as an advice or information bureau, as well as a watchdog. This could help prevent both blatant and subtle abuses of asylum-seekers and of the process. It was suggested that, if NGOs monitored the various offices and reported their observations, this would give the advocacy community more solid information in lobbying for an improvement in the implementation of the Act.93

Conclusion Legal practitioners and refugee advocates are of the view that although dialogue with the Department should continue, litigation is probably the only way to settle many of the issues facing them in their work as legal representatives and refugee rights activists. Most of the current issues that are of concern to practitioners and advocates relate to process and the implementation of the Act. Substantive issues of refugee law, such as persecution by non-state actors, are also of concern, but these will no doubt need to be tackled later in the further development of the South African refugee policy regime. While practitioners and other refugee advocates appreciate the constraints under which the Department operates, people’s rights cannot be trampled merely because of insufficient resources. Principles of international, constitutional and administrative law reflected in the Refugees Act must be practised consistently by the Department of Home Affairs. There have been some positive developments. The Refugee Appeal Board appears to take its duties seriously and, even before the Refugees Act came

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into force, the Board regularly held hearings at which asylum-seekers could have legal representation. This encouraging development has not, however, mitigated the lack of due process at earlier stages in the procedure. While the procedures presently being implemented have positive aspects, practitioners are still disappointed by the absence of independent structures in determining asylum applications and the prospect of under qualified and under trained Refugee Status Determination Officers. Asylum-seekers deserve better from a democratic country with a superb Bill of Rights and a commitment to a human rights culture.

Notes 1. Part of this chapter draws on a report by L. De la Hunt, Tracking Progress: Initial Experiences with the Refugees Act, 130 of 1998 (Pretoria, 2002), researched for the National Consortium for Refugee Affairs and used with their permission. 2. These include the 1951 Convention Relating to the Status of Refugees (and associated 1969 Protocol) and the 1967 OAU Convention Governing Specific Aspects of Refugee Problems in Africa, as well various international human rights instruments. 3. UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (Geneva, 1979) (re-edited in Geneva, 1992), at paragraph 190. 4. In this section we have quoted directly from the Handbook and Amnesty International, Refugees: Human Rights Have No Borders, (London, 1997). 5. Amnesty International, Human Rights, 107. 6. Unreported, Order by Consent, High Court of South Africa (Cape Provincial Division), Case No. 15931/96. 7. Human Rights Watch, ‘Prohibited Persons:’ Abuse of Undocumented Migrants, Asylum Seekers, and Refugees in South Africa (New York, 1998), 175. 8. Although the Department now requires a signed and stamped power of attorney. 9. Although they ceased to employ interpreters at all after the implementation of the Refugees Act. 10. See Chapter 4 of this collection. 11. Unfortunately, not all officials approached were cooperative. 12. Also referred to as the internal relocation or internal protection alternative. 13. Regulation 11(1) reads that ‘the applicant bears the burden of proof to establish that he or she is a refugee as defined in section 3 of the Act and is not excluded from refugee status pursuant to section 4 of the Act’. 14. Although we argue that section 3b of the Act precludes the application of the internal flight or internal protection alternative, at the very least the onus should be on the Department to establish the existence of an internal protection alternative. See Michigan Guidelines on the Internal Protection Alternative, April 1999. 15. Section 3(b). 16. Adherents to this view within the DHA argue that the OAU definition was meant only to extend protection to African refugees. 17. The vast majority of asylum-seekers in South Africa are from elsewhere on the continent. 18. Although the Act assumes the obligations of the OAU refugee convention, no provision reflects the undertaking ‘to prohibit refugees residing in [South Africa] from attacking any State Member of the OAU, by any activity likely to cause tension

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19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36.

37. 38.

39.

40. 41. 42.

43. 44. 45. 46.

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between Member States, and in particular by use of arms, through the press, or by radio’. Certain restrictions on refugees’ freedoms in this regard would fall foul of the South African Constitution. Section 33 of the South African Constitution. Section 6(1)(e). A more detailed discussion of the structures can be found in de la Hunt Tracking Progress. Section 10(1). The Minister may determine the number of members, having regard to the likely volume of work. Section 10(4). Case No. 1486/02. This was obiter (an opinion expressed by the judge). M.M. Watchenuka and Another v. Minister of Home Affairs and Others, Case No. 1486/02. p.116 of the record. Ruyobeza & Another v Minister of Home Affairs & Others 2003(8) BCLR 920(c) Section 21(1). Regulation 2(1)(a). Regulation 2(1)(b) and (c). Form BI-1590, Annexure 1 to the Regulations. Section 21(2)(a) and (b). Section 21(2)(c). Regulation 4(1)(a). Regulation 3(5). Such allegations are rarely confirmed by asylum-seekers for fear of recriminations, notably to avoid prejudicing their asylum application. As mentioned elsewhere in this book, the Regulations to the Refugees Act prohibit asylum seekers from working during the first six months of their asylum application. However, since no material assistance is provided by the state and NGOs can offer only limited assistance, asylum-seekers face little option to survive, but to find employment. In Cape Town, those interviewed suggested that it took at least a month to get into the system, whereas, in Gauteng, the period seemed to be longer. It was alleged that at one stage the Braamfontein Refugee Reception Centre refused to accept applications for asylum from Ethiopians because ‘Ethiopia was not a refugee-producing country’. There are reports of Swazis and Zimbabweans experiencing similar difficulties. It was also alleged that refugees from other countries were turned away because the official versed in those country situations was away from the office. One interviewee maintained that UNHCR had raised this issue with the Department, which had agreed to accept such applications. It was also alleged, that in certain centres, this applies only to asylum-seekers from certain countries, such as Asians. Such as Jesuit Refugee Services. Such as the Ethiopian Centre. This is obviously difficult for the service provider or refugee committee, and some organisations refuse to assist the Department in this way. Apart from obvious concerns over legal accountability, it is difficult to understand how this practice corresponds with Part 2 of the application form – country background – which is meant to assist the Refugee Status Determination Officer in determining whether or not asylum-seekers are from the country they claim to be. Jacques Katam Bayi v. Minister of Home Affairs, WLD Case No: 5312/02. One lawyer interviewed reported nine people detained at the border with Swaziland. De Gaule Kiliko and others v. Minister of Home Affairs and others, Cape of Good Hope Provincial Division, Case No. 2730/05, Judgment 16 January 2006. This particular practice became the subject of an additional court challenge, launched on 17 July 2006.

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47. 48. 49. 50.

51.

52. 53. 54. 55. 56. 57. 58. 59.

60.

61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77.

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Regulation 5(1). See above n. 2. Regulation 5(3)b). For example, one interpreter told a man to say that he had left behind a wife and child, thinking that this would make his case seem more compelling. The asylumseeker duly did so, but, much later, when he applied for permanent residence on the basis of his marriage to a South African citizen, the Department ‘reminded’ him that he still had a wife back in his home country! The lawyer in this instance noted that most of her clients were from francophone countries and did not have too many difficulties with interpreters. Regardless of whether or not, as has been documented, a member of the South Africa Police Services destroyed the permit, or whether or not the papers were stolen in the course of a mugging. Before the Immigration Act of 2002 came into force, this was generally a section 22 permit; before the implementation of the Refugees Act, this was a section 41 permit. Section 21(1). Departmental Circular No. 49 of 2000 dated 8 November 2000 and sent to Refugee Reception Offices and Regional Directors. A.N. Nkulu v. Minister of Home Affairs and Others, CPD Case No. 7702/02. Regulation 3(1). Section B9 of Annexure 3 to the Regulations. A permit in terms of the Act, includes a computer-generated photograph, fingerprints and a bar-code number. After failing to respond to numerous letters and faxes on behalf of asylum-seekers seeking to have these restrictions lifted, the Standing Committee has recently requested that the UCT Legal Aid Clinic provide them with signed powers of attorney for each and every one of its clients. The Respondents have lodged an appeal against judgment in the case of M.M. Watchenuka and Cape Town Refugee Forum v. The Minister of Home Affairs, the D.-G. of Home Affairs and The Chairperson of the Standing Committee, Case No. 1486/02 in the CPD. Section 29. However, in Cape Town, two clients were fined R1,000 and R1,500, respectively. In both cases the permit had expired at least a month before the arrest. Section 24(2). Section 24(3). Regulation 10(1). Regulation 10(2)(a). Regulation 10(2)(b). Regulation 10(2)(c), which includes documentary evidence. Regulation 10(2)(d). Regulation10(3)(a). Regulation 10(3)(b). Regulation 10(3)(c). Regulation 10(4)(a). Regulation 10(5). The RSDO may even limit the length of such a statement or comment. The representative may submit written comments. Regulation 11(1). Regulation 11(2). The RSDO may request the applicant to provide documentation, where available. One lawyer gave an example of a male nurse from Congo who was rejected. Later, this same office clearly recycled the text they used in his letter for other men from Congo, without even reading the text or noticing that not all the recipients were ‘nurses’!

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78. 79. 80. 81. 82. 83.

Section 24(3)(c). Section 26(1) and Regulation 14(1). Regulation 14(1)(b). Section 26(2). See above, n. 2. One lawyer pointed out that asylum-seekers ‘have the worst of both worlds, because the Appeal Board makes the claim that “interpreters are usually so bad that they can’t trust anything they say’; yet on the other hand, they will tell the refugee “but you said THIS in your initial interview”. They use the bad interpreter excuse only when it helps them reject a claim.’ See above, n. 2. As there are no Regulations, nor is there a particular format, appeals are submitted in letter form. or as a summary or similar to heads of argument, depending on the lawyer or other representative. Some representatives do not provide written argument, but merely summarise their clients’ case at the end of the hearing. One lawyer gave the Ivory Coast as an example of a country that members of the Board had no knowledge of and were of the view that it was unlikely that anyone would flee for refugee-related reasons. The Immigration Act of 2002 provides for immigration courts, which, among other functions, might eventually replace the Appeal Board. During the Backlog Appeals Project, appellants were frequently told of the outcome of the decision immediately after the hearing. See above n. 2. However, no one had direct experience of this. In the UCT Legal Aid Clinic case, the client assisted the South African Police Services Fraud Squad and the Department’s internal investigation unit. He was exposed by his interpreters and severely assaulted and threatened on two occasions. He allegedly also received threats from an official. A client of the Wits Law Clinic tried to take a camera into a reception office to get proof of money changing hands. He was caught and the Department attempted to deport him. An urgent application was brought to prevent this and the Department released the client. When he went back to the office to renew his permit, he found that his application had been rejected. He lodged an appeal. Another shocking incident involved a complaint from a woman asylumseeker that an official had demanded that she ‘drop her pants’ in his office. He clearly considered himself beyond reprisal, as he gave the woman his name and number on a piece of paper and told her to call him if she wanted a successful outcome of her application! She refused to lay a formal complaint, as she knew that she had to keep going back to the office to expedite her application. For instance, they are told that an amount of R400 can expedite the process. See Appendix B of the NCRA Report (see above, n. 2), report on a two-week study of the Cape Town Refugee Reception Office.

84. 85.

86.

87. 88. 89. 90. 91.

92. 93.

6 STARTING WITH A CLEAN SLATE? EFFORTS TO DEAL WITH ASYLUM APPLICATION BACKLOGS IN SOUTH AFRICA Jeff Handmaker

 Introduction The Refugees Act 1998, with corresponding Regulations, did not come into force until early April 2000. Bringing the Act into force presented significant administrative challenges to the Department of Home Affairs (hereinafter the DHA or the Department), the government department designated to administer the refugee status determination regime in South Africa. One of the biggest challenges concerned a backlog of over 27,000 applications that were still awaiting first-instance decisions and a further 4,000 applications awaiting decisions at the appeal level. By the time of the second backlog project, this figure had risen to over 110,000 unprocessed applications. Many asylum-seekers have been waiting for years to receive a determination of their status. This wait has been made all the more frustrating by the onerous task of having to renew permits at regular intervals (as often as once a month), a situation that has also made the system vulnerable to corruption. Recognising these challenges, the office of the United Nations High Commissioner for Refugees (hereinafter the UNHCR), through its Southern African Regional Office in Pretoria, offered to assist. Based on its own needs assessment and experience in advising and assisting the DHA’s asylum determination regime since its establishment in 1993, the UNHCR offered a project that aimed to help the government to deal with the

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administrative backlog of asylum applications received under the ‘old’ (i.e. pre-Refugees Act) regime, build capacity within the Department with regard to refugee status determination and improve the credibility of the status determination procedure. The UNHCR also engaged the services of local non-governmental organisations (NGOs) in the implementation of both phases of the project. What became known as the ‘first backlog project’ ran into considerable challenges in its implementation. These challenges raised questions regarding the relationship between the government and NGOs, the degree of compliance with principles of administrative law and the continuing unresolved capacity constraints within the DHA itself. This chapter presents a tentative evaluation of what became the first backlog project and assesses prospects for the introduction of a second backlog project, which was formally launched in 2006.

Legal Basis, Funding and Structure of the Backlog Project The purpose of the project was to facilitate a smooth transition from the asylum determination procedure as implemented in terms of the Aliens Control Act 96 of 1991 to implementation of the asylum determination procedure in terms of the Refugees Act 130 of 1998. As mentioned earlier, the Refugees Act came into force only in April 2000, with the Department’s introduction of administrative Regulations.1

Legal Basis for the Project The specific legal basis for the backlog project came from an additional two-paragraph Regulation 19, issued in September 2000 in terms of sections 11 and 38 of the 1998 Refugees Act.2 It provided as follows: (a) Pursuant to Section 38(1)(g) of the Act, transitional arrangements are hereby agreed upon between the Department and the United Nations High Commissioner for Refugees in order to reduce the backlog in outstanding asylum applications. (b) Pursuant to Section 11(a) of the Act, the Standing Committee shall formulate and implement specific procedures for the purposes of the exercise as envisaged in (a) above. The document setting forth the procedures shall be made available to any interested party on request to the Department of Home Affairs.

The document mentioned in (b) ultimately referred to two unpublished documents, both drafted by the UNHCR: ‘Operational Modalities for the Clearing of the Backlog of Asylum Applications in South Africa’ (hereinafter ‘Operational Modalities’) and ‘Project Description’.3 Together they contained the operational details of the backlog project.

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Funding and Implementation Oversight Funding was provided through the UNHCR and implemented as part of its Refugee Status Determination (RSD) project, based at its headquarters in Geneva. This was purportedly one of the largest initiatives ever undertaken by the RSD project, with a budget of around half a million US dollars.4 Originally, it was assumed that implementation was to be carried out solely in terms of a ‘sub-agreement’ between the UNHCR and the DHA.5 However, the UNHCR’s policy required that funds be disbursed through an NGO,6 and thus the South African NGO Lawyers for Human Rights (hereinafter LHR) was approached (and agreed) to become a partner in the project. Lawyers for Human Rights’ role soon grew beyond that of administrating funds, and it assumed a larger coordinating role, in collaboration with UNHCR protection officers and the DHA. To promote a smoother implementation of the project, a senior management committee was established, composed of senior representatives of all three organisations.7

Operational Modalities While the legal basis of the first backlog project came directly from the Refugees Act, the very fact that the details of the process were not to be found in official gazettes, or as an official departmental instruction or circular, raised questions regarding public access to information.8 Guided by the two UNHCR documents, the project was to be implemented in two phases. The first phase involved initial (re)processing of applications that were still pending at the time the Regulations were published (i.e. 31 March 2000), at both the first instance and appeal stages. According to DHA statistics, a ‘grand total’ of 27,115 applications met this description.9 During this first phase, LHR argued that all those whose applications were processed as part of the backlog project were entitled to an automatic appeal. This met with some resistance on the part of the government, perhaps because of the unique administrative arrangements designed to expedite processing and, in some cases, correct administrative irregularities.10 The argument was, however, successful. The LHR further argued that the same opportunity to appeal should be extended also to those applicants that the DHA might have considered ‘manifestly unfounded’.11 The acceptance of this argument during the first phase may have enhanced due process, but also greatly increased the number of cases the appeals board would have to process during the second phase of the project.

Staffing and Training New staff were hired and trained to deal with the extra workload created by the project.12 These included a general coordinator, three fieldworkers

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(team leaders), forty lawyers/eligibility officers (caseworkers) and ten clerks. Along with the DHA Standing Committee (consisting of senior DHA officials) and DHA eligibility officers provided for by policies of the old Aliens Control Act,13 these newly employed recruits were expected to take collective decisions on asylum applications. Legally, with the exception of the general coordinator, each additional staff member was to be employed by LHR. However, these staff members were based primarily within DHA offices for the duration of the project, which enhanced their legitimacy (i.e. they were directly accountable to a government department rather than an NGO). While the project aimed to create a ‘pool of trained lawyers’, as described in the ‘Operational Modalities’ document, each additional staff member’s contract of placement explicitly stated that no position would ‘give rise to any expectation or entitlement to future employment’ with either the DHA, LHR or the UNHCR.14 As it happened, a number of former caseworkers and team leaders employed for the project were subsequently hired by the DHA, or took up positions with NGOs and in the legal profession, having gained a considerable amount of training and unique experience in refugee law.

Terms of Reference for General Coordinator An RSD general coordinator was identified and appointed as a staff member of the UNHCR.15 In terms of UN guidelines, the position was a relatively senior one, with an expectation of ‘excellent service at the P-5 level and above’. The general coordinator was to be placed ‘under the overall supervision of the Director of the Division of International Protection and with guidance from the UNHCR Representative in Pretoria’. He or she was further expected to ‘liaise with the DHA and LHR Coordinators within the framework of the Senior Management Committee’. Designated duties and responsibilities included coordinating and supervising the project’s team leaders, ensuring ‘quality of decisions’ (notably consistency), clearing the ‘weekly list of applicants’ and providing ‘regular briefings’ and reports to the DHA, UNHCR and LHR, as well as ‘other duties and responsibilities as required’.

Terms of Reference for Field Coordinators – ‘Team Leaders’ Three team leaders16 were also hired, to be based in the DHA’s refugee reception offices (where interviews are taken and some applications processed) in Cape Town, Johannesburg and Durban. Each team leader was to be placed ‘under the overall supervision of the Senior Management Committee … and the direct guidance of the UNHCR General Coordinator’. Duties and responsibilities included coordinating and supervising caseworkers (and associated activities, such as interpretation), ensuring

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quality and consistency; providing ‘on the job training’, submitting ‘on a weekly basis a list of applicants … for clearance … to the Standing Committee for final decision’, and reporting weekly (including supplying statistics) to the senior management committee. The team leaders were also expected to support DHA eligibility officers (including during interviews) and to perform ‘other duties and responsibilities as required’.

Terms of Reference for Eligibility Officers – ‘Caseworkers’ Supervised by the team leaders and general coordinator, eligibility officers or ‘case workers’17 were expected to conduct a ‘proper assessment … and to arrive at a reasoned conclusion and recommendation’ on backlogged asylum applications, where ‘the information contained therein [was] sufficient and adequate to do so’. Deciding whether or not an applicant needed to be re-interviewed was to be done in consultation with the team leader. Indeed, as will be mentioned later, a significant number of applicants needed to be re-interviewed, as the information contained in the files was inadequate for purposes of making a determination. The case workers’ role was clearly key to the process. They were expected not only ‘to conduct refugee status determination interviews’, but also ‘to analyse the information’ and ‘submit (an) assessment and recommendation on each case’. Nevertheless, caseworkers were not DHA officials – they were able to make recommendations, but had no power to take decisions. While the DHA ultimately shouldered the responsibility for taking the final decision on an application, the added capacity the caseworkers brought to the department meant that their input to the project had to be reduced gradually to avoid bringing the project too abruptly to conclusion. Interestingly, the caseworkers’ terms of reference explicitly referred to the importance of ‘a thorough yet compassionate manner, using a wide range of interviewing techniques, in order to gather sufficiently accurate and detailed information to assess eligibility’.18 This may have been an indication of concerns about how interviews had been conducted up until then, but in any event, this was a positive indicator of standards that could be expected in a fair and rights-regarding interview. Furthermore, the terms of reference indicated that caseworkers were also expected to provide ‘pre-screening counselling to asylum seekers to ensure that each individual called for interview is acquainted with their rights and obligations under this procedure’. Again, whether or not this reflected critically on the then state of affairs at the DHA, the fact that the project recognised the value and importance of such a pre-screening was another positive indicator of the project’s determination to promote rightsregarding procedures.

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Training Provided The Operational Modalities document explicitly mentioned that ‘intensive training’ would be provided for the team leaders and caseworkers. The training course that was ultimately given in August 2000 lasted a week, covered a broad range of issues, incorporated interactive case studies and included a brief examination. Topics included refugee law and relevant legal instruments, as well as guidelines on making credibility assessments, technical arrangements, interviewing techniques (with particular attention being given to vulnerable applicants)19 and researching country of origin information.

Implementation of the Programme As mentioned at the beginning of this chapter, the project faced considerable challenges in implementation. The second phase of the project involved considerable revision of the project’s objectives. Specifically, it became clear towards the end of the first phase of the project that clearing the backlog was not a realistic goal, and that the project should rather focus on building capacity.20

An Administration Unprepared: Inadequate Needs Assessment? The first major challenges encountered in the second phase were lack of preparation and poor administration on the part of the DHA.21 In particular, new files kept being discovered throughout the first phase. According to participants in the first backlog project, caseworkers employed by LHR did not have access to these files from the outset. While it was expected that additional work would need to be done to ensure completion of files, this was a far greater task than anticipated. The main reason for this was insufficient information gathered during initial interviews. Factors relating to poor administration may also have been related to an inadequate needs assessment by the project’s organisers. Apart from a general and obvious assumption that the DHA would require additional staff to implement the objectives of the backlog project, it appears that perhaps not enough thought was given to the longer-term requirements of the DHA to build capacity, or that these requirements were seriously underestimated. Assuming that longer-term capacity building was envisaged, it is not evident that the DHA or the government in general accepted the full implications of capacity building. Capacity building invariably requires a firm political commitment and will to invest in greater resources (in this case, to provide further departmental funds for the status determination regime). It was subsequently acknowledged that some of these problems could have been avoided by a ‘three-phase’ implementation process, involving an

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initial phase of comprehensive preparation, during which all pending files could be inventoried and checked for completion. This initial phase would have been followed by the first instance and appeal phases. However, it is uncertain whether this would have met the UNHCR’s budgetary requirements,22 received the necessary backing from the DHA, and have left enough funds available for the appeal phase.

First Phase of the Project: Processing First Instance Applications Clearing the Backlog and Building Capacity The initial objectives of the project were twofold: ‘To clear the backlog of asylum applications in connection with the entry into force of the new refugee status determination procedure, and to establish a pool of trained and experienced case workers from which new Refugee Status Determination Officers may be recruited.’23 As the project got under way, it soon became clear that a range of administrative, technical and communication problems presented tremendous challenges to the project staff. Moreover, despite the existence of a senior management committee and what appeared (on paper at least) to be clear terms of reference outlining roles and responsibilities, the structural set-up and relations between the DHA, the UNHCR and LHR also presented difficulties.

Legal and Technical Challenges Presented by Preserving Old Structures A number of legal and technical challenges arose as a result of the preservation of a former administrative structure to implement this project. Prior to the Refugees Act coming into force, the Standing Committee had supervisory authority over asylum determination and the capacity to make first instance decisions. In effect, the backlog project kept the Standing Committee alive and unchanged, even though the Refugees Act and Regulations reorganised this structure as one with very different responsibilities and powers, notably without the power to take first instance decisions. According to the UNHCR and LHR, the reason this occurred was that the project was envisaged as a transitional measure between the old and new asylum determination procedures. Furthermore, the legislative framework for the Refugees Act was deliberately set up so not as to disrupt the ongoing process of status determination.24

Communication Challenges and Staff Limitations Communication challenges also arose, particularly from the perspective of LHR. This organisation indicated that, while its communication with the UNHCR was ‘very good’, with the DHA, it was ‘problematic’.25 There was

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a perception that the DHA saw NGOs and the UNHCR as ‘enemies of the system’. Consequently, the DHA was not always forthcoming with information essential to the implementation of the project. All the role-players struggled with staffing limitations. On the part of LHR, the project proved to be far more demanding than originally anticipated, involving considerable administrative responsibilities. A similar challenge was faced by the UNHCR, which was never able to secure a fulltime coordinator. The DHA faced perhaps the most compromising capacity issues of all, with only one staff member initially responsible for the project. A far more serious problem arose when this single staff member was perceived as being ‘too cooperative’ with NGOs and was thus replaced. In general, there was a perception on the part of LHR and the UNCHR that the project was ‘hijacked in the turf wars of the department’.26 In this context, the main challenge facing the backlog project was arguably not one of resources, but one of political commitment.

Difficult Balance It appears that LHR consistently played a deliberate and transparent role in this project. Nonetheless, as an NGO, it was also confronted with a difficult balancing act: it was required to support the process of building greater capacity (and credibility) in the asylum determination procedure, while at the same time retaining its independence and its critical role as a voice of civil society. In particular, pressure came from refugee and asylum-seeker groups in South Africa, some of which were greatly angered by the new asylum regulations and the role of the backlog project in facilitating the transition from the asylum determination procedure according to the Aliens Control Act to the new procedure in terms of the Refugees Act. One group claimed, ‘We’re not confident Home Affairs [the DHA] has the resources to implement this in a few short weeks … our experience is that Home Affairs works very slowly.’27 Many feared that the backlog project would lead to ‘hasty judgments’, and in general, asylum seekers expected ‘bad news’ when they next presented themselves at the DHA for renewal of their permits.28 Eventually, LHR felt that it was not possible to maintain the balancing act demanded of them, especially as their administrative capacity was overstretched. The organisation was also concerned about potential conflicts of interest arising in cases where it would represent a client before the Appeal Board, while simultaneously supervising a caseworker participating in assessing the case.29 For these reasons, LHR took the decision to discontinue its administrative and coordinating involvement after the first phase of the backlog project. In its place, the National Consortium for Refugee Affairs (NCRA), a national network of NGOs and refugee groups, assumed this coordinating and administrative role.

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Second Phase of the Project: Processing Appealed Rejections Unlike the first phase, which faced technical problems associated with retaining the administrative structures of the previous legislative regime, the second phase was less complex, as the Appeal Board was retained under the new system. It was recognised that the objective of eliminating the backlog was unrealistic, and strengthening the Appeal Board became the primary focus of the second phase.30

Strengthening Capacity and Restoring Credibility Unfortunately, the first phase was not comprehensively or independently evaluated before the second phase began. However, some changes were made to the project’s focus and structure, based on the UNHCR’s own reflections on the project’s implementation up until that point. First, a fulltime coordinator for the project was appointed by the UNHCR. Secondly, as mentioned above, the objectives of the backlog project were revised, and were limited solely to improving capacity at the DHA. This meant that at the start of the second phase, the UNHCR had more realistic expectations as to what the project could achieve. As indicated in the Project Description: One of the main lessons learned from the first phase of the exercise is that it is practically impossible to determine every outstanding asylum application due to extremely poor management of the asylum procedure under the previous arrangements … it would not be realistic to assume that the entire backlog at the appeal level will have been cleared by the end of the second phase of the exercise. Therefore, the main objective of the project will be … strengthening capacity of the Appeal Board to clear its backlog through the hiring of additional and qualified manpower for a predetermined period of time.31

By hiring staff for a ‘predetermined period of time’ it was clear that the project aimed to strengthen capacity for a short period of time, although it was presumably expected that some of the benefits of the capacity building would continue beyond the project’s lifespan. In addition, the Project Description also declared that ‘the overall objective … is to restore a measure of credibility to the refugee status determination procedure in South Africa’. One possible route towards credibility was the hope that having qualified persons to assist the Appeal Board would help DHA staff to develop a more professional attitude, while simultaneously building substantive jurisprudence. A second step towards restoring credibility was that, while stressing the importance of ensuring ‘safeguards of due process and fair procedures’, the project also explicitly endorsed removal from South African territory. As stated in the ‘Project Description’, unless this were to happen, ‘the asylum system [would] continue to be seen as the back door for unauthorised migration into South Africa and another backlog [would] creep up’. This expression of concern was a clear reference to growing global anxiety over what has been termed ‘irregular migration’.32 Consequently,

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the Project Description noted that the DHA and the International Organisation for Migration (IOM) were consulting to ensure that removals took place in an ‘orderly and humane fashion’. The UNHCR made clear that, while it supported these efforts, it would ‘not be directly involved in the removal of finally rejected cases’.33

Window of Opportunity? The NCRA believed that the backlog process presented a ‘window of opportunity’ for addressing enduring problems in the asylum determination procedure, particularly through the instrument of the Appeal Board. Halfway through the exercise, the NCRA noted a ‘difference in the attitude of officials in the appeal board and those in the [rest of] the department’.34 Furthermore, ongoing supervision was provided by non-South African judges (see below), and caseworkers and members of the Appeal Board attended weekly training sessions. This support was in addition to the intensive preparatory training conducted, which was aimed particularly at the appeal assessors.35 A key feature of the second phase of the backlog project was that judges were brought in from abroad to work alongside the existing Appeal Board and to assist in making determinations. This was achieved in collaboration with the International Association of Refugee Law Judges, which provided experienced arbitrators from the United Kingdom, Australia and New Zealand. However, despite their best intentions, the standards upheld by these judges was not always consistent; for example, the standards of New Zealand judges tended to be ‘more liberal’, as compared with the ‘more rigid’ standards of the Australian judges.36 Moreover, without any experience or much preparation in adjudicating asylum applications under the South African system, the judges had moments of uncertainty, particularly about how to interpret section 3(b) of the Refugees Act, which refers to the more expanded definition of a refugee provided by the OAU Refugee Convention.37 The presence of experienced judges nevertheless made a positive contribution to promoting professionalism and developing substantive jurisprudence on the part of the Appeal Board. Cultural differences between the judges and members of the Appeal Board were identified as significant challenges, however; these were not foreseen and were dealt with on an ad hoc basis.38

Further Lack of Planning and Obstruction by the DHA Unfortunately, some problems encountered in the first phase, in particular relating to the lack of proper planning on the part of the DHA, were found in the second phase as well. Similarly, instances of what appeared to be deliberate obstruction by the DHA once again raised questions about departmental and government political commitment to the project.39

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The Appeal Board is technically independent from the DHA regarding decisions taken on applications. Nevertheless, the Appeal Board is dependent on the DHA for certain administrative functions. In the context of the second phase of the backlog project, these included providing access to files and sending letters to applicants; considerable delays were experienced with regard to both functions. At one point, matters were so bad that the project’s coordinators presented the DHA with an ultimatum: if it did not cooperate, the project would be closed down. After this, matters apparently improved considerably.40

Results of the Backlog Project According to the preliminary results of the project, 20,000 out of the approximately 27,000 backlogged cases were processed. At the time of writing, the exact figures were still not known. Nevertheless, it was possible to establish that approximately 6,000 applicants received refugee status through the project.41 In addition, a considerable amount of capacity building was achieved during the course of this project. In particular, LHR mentioned that the ‘quality of the appeal board’s decision[s] improved considerably’ and that they were ‘more independent and exercised that independence’.42 However, in the absence of long-term investment in resources by the DHA, a question mark hangs over the sustainability of this capacity building effort to the benefit of DHA. While it remains uncertain whether the DHA will generate the resources (and political will) to employ much-needed additional staff,43 a number of the caseworkers and team leaders who participated in the project have already moved on to work for NGOs and legal practices. They possess skills (and contacts at the DHA) that will enable them to provide experienced advice to asylum-seekers in future. In this regard, the project has built capacity within the legal sector. Finally, measurable improvements in professionalism and consistency of decision-making have been noted by NGOs involved in the backlog project, particularly on the part of members of the Appeal Board. Further results, however, cannot be identified, as the project has yet to be evaluated, a step the UNHCR has acknowledged to be necessary and important.44

The Second Backlog Project In November 2004, a meeting was held with the UNHCR and the author at their regional office in Pretoria, South Africa, both to discuss the first backlog project and to determine what arrangements were being made for a second backlog project, initially set to kick off in early 2005. While the

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second backlog project was only formally launched in June 2006, the project had already begun processing backlogged applications in Port Elizabeth, Durban and Cape Town several months prior to the formal launch. The November discussion identified that there had existed both weaknesses in the first backlog project, and a lack of preparedness to undertake a new backlog project, especially since the first backlog project had never been properly evaluated.45

Request by the DHA Unlike the first backlog project, which was proposed by the UNHCR, the second backlog project was proposed in response to a request from the DHA for assistance in eliminating a backlog of well over 100,000 asylum applications that had accumulated since the first project came to an end.46 However ambitious this request for assistance, it was nevertheless encouraging to note the DHA, led by a more dynamic new Minister, taking responsibility for resolving its considerable administrative challenges.

Preparation for the Second Backlog Project According to the UNHCR, many of the applications falling within the second backlog were in fact duplicates: they included applications that were processed, but rejected during the first backlog project, as well as applications originally submitted at one Refugee Reception Office and then (because of administrative inefficiency) resubmitted in another Refugee Reception Office. To clarify a range of unknown factors and prevent a repeat of the mistakes made in the first backlog project, the UNHCR planned in November 2004 to undertake a ‘strategic meeting’ to help map a ‘way forward’.47 Such a meeting, it was said, was to clarify data on an estimated 85,000–90,000 pending cases at the DHA and, in the view of the UNHCR, assist in ‘packaging their processing’, in particular through programmes of ‘accelerated procedures’ for applications determined to be ‘manifestly unfounded’48 or ‘manifestly founded’. In total, the UNHCR was of the view that approximately 60 percent of the backlogged applications could potentially be processed through an accelerated procedure, although there was little elaboration on the nature of such a procedure or the criteria that would be considered in earmarking an application for an accelerated procedure. It was mentioned that the Standing Committee would most likely have to play a key role in reviewing applications deemed to be manifestly unfounded or manifestly founded.49 However, this was quite unrealistic, given that the Standing Committee met only irregularly and would have been incapable of reviewing tens of thousands of claims.

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Need for Identification Documents (IDs) to be Issued In the light of ongoing discussions with a German company regarding the issuing of automated, machine-readable identification documents or ‘smart cards’, the UNHCR suggested that it would be helpful if officials employed in the second backlog project could issue these new IDs immediately to approved applicants, in order to streamline the process and reduce further delays. It was further suggested that it would be desirable if some alternative form of status were available for those whose applications were rejected, in order to encourage the broadest possible participation.50 Unfortunately, at the time of the second backlog project’s formal launch in June 2006, the technology for processing the ‘smart cards’ was not yet in place.

Regional Implementation of the Second Backlog Project From as early as April 2006, DHA began implementation of the second backlog project in three of its regional centres, in Durban, Port Elizabeth and Cape Town. Separate premises from the existing Refugee Reception Offices were established for the duration of the backlog project. It was rumoured that these new facilities would replace the old Refugee Reception Offices.

Reflections by UNHCR In November 2004, UNHCR claimed its principal motivations for supporting a second backlog project were the following: (1) to eliminate confusion between refugees and other migrants (who they felt were ‘clogging up the system’), but also to resolve the status of what it termed ‘irregular migrants’ by channelling the latter into alternative procedures; and (2) to build and maintain the integrity of the refugee status determination system. The UNHCR claimed it was frustrated by the growing level of reported corruption within the DHA, and the perception that ‘the current system favoured those who can pay [a bribe]’. Ultimately, the UNHCR stated its goal was a ‘credible system that people can depend on’.51 By the end of April 2006, UNHCR appeared to be more modest in its expectations, claiming that the backlog project was ‘linked with capacity building’.52 UNHCR stated that it was encouraged by the fact that the project was not only coordinated by DHA, it was also politically supported. According to UNHCR’s Assistant Regional Representative: ‘The backlog project falls under the Minister’s office, with full political backing. The general co-ordinator is the Director of Finance at DHA. Refugee Affairs is simply facilitator, not responsible for the day-to-day administration.’53 UNHCR expressed concern, however, that the target for processing applications, ten per day per determination officer, was far too high.54 As

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mentioned above, during the first backlog project, it became clear that elimination of the backlog was, in itself, an unrealistic objective. This emerged as an even more significant concern in DHA’s preparations for the second backlog project, during which the DHA concluded that 110,000 pending applications existed at the time of the cut-off date of 31 July 2005, close to five times more than the previous backlog project.55 A further concern expressed by UNHCR was that there was inadequate information available to NGOs, let alone the public, concerning the mechanics of the backlog project. In the absence of such information, UNHCR were concerned that there would be a great deal of ‘no shows’ unless a more intensive information campaign was undertaken. However, at the time of writing, the only major effort undertaken by the DHA to publicise the backlog project consisted of various pronouncements made during public meetings connected with Africa Refugee Day and World Refugee Day in June 2006. Finally, UNHCR expressed the hope that the DHA would consider an ‘amnesty’ for what it predicted to be a ‘very large’ number of applicants whose applications would be rejected. It was felt that there were both legal precedents and a strong moral basis for such a measure, given that many applicants had been resident in South Africa awaiting determination of their refugee status for long periods, in some cases up to ten years.56

Additional Early Feedback to the Second Backlog Project Early feedback to the second backlog project appeared to be mixed. Very little, if any, consultation took place outside DHA concerning the location of the backlog project facilities. This had led to considerable difficulties on the part of both lawyers and applicants.57 Furthermore, lawyers have expressed doubts whether officials were ‘properly applying their minds’ to each individual application.58 In general, some lawyers expressed mixed praise that some staff members were accommodating and helpful, while other staff members were not. A further, second-hand complaint came from some DHA backlog staff, who reported to lawyers that they did not feel adequately trained to make the determinations they were being asked to make and had requested additional training from a local NGO.59 While it was too early at the time of writing to make definitive conclusions on the second backlog project, it appeared that there had been better preparation and planning as well as a clear commitment to improve both facilities and administrative bottlenecks. However, consultation had been lacking and at the time of writing there had been no resolution of certain major issues, such as transport for asylum-seekers to the backlog processing centres.60

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Conclusion As the NCRA concluded in its own preliminary evaluation report on the backlog project: ‘The project can serve as a yardstick in a critical analysis of the overall asylum status determination system in the country, with a view to making vast improvements.’61 Notwithstanding the need for a more comprehensive evaluation, some tentative conclusions can be drawn at this stage, based on reflections from organisations that participated in or observed the project’s implementation (notably the UNHCR, LHR, the NCRA and refugee community groups in South Africa) as well as initial reflections by those observing implementation of the second backlog project, which at the time of writing, in August 2006, was still being implemented. First, the aim of actually eliminating the backlog was clearly unrealistic. This is something that should have been foreseen by the first backlog project’s organisers from the start, although in the second backlog project it still appeared to be a politically attractive justification.62 Secondly, there was a marked lack of preparation on the part of the DHA concerning both phases of the first backlog project. At least part of this lack of preparation appears to have been related to widespread resource, training and staffing constraints; it was possibly also exacerbated by an inadequate needs assessment at the outset, which could have been addressed by a ‘three-phase’ implementation.63 It should be noted that there appeared to be far more planning and preparation put into the second backlog project. Thirdly, the project created an administratively demanding and politically compromising situation for NGOs involved in the first backlog project. Indeed, it is questionable whether this degree of NGO involvement in such a complex (and sensitive) project is appropriate. It was therefore encouraging to note that in the second phase of the first backlog project, it was decided that the role of NGOs should be restricted to training. In the second backlog project, NGOs have hardly played a role at all.64 Fourthly, there was a lack of both ongoing and final evaluation of the project – this should have been conducted following the conclusion of both phases of the first backlog project. Finally, considerable doubts arose regarding the level of political commitment on the part of the DHA. According to outside observers, this last area of concern seemed to be far less of an issue in the second backlog project, which involved several new senior staff members and a new Minister of Home Affairs. While it is not clear whether there existed a realistic appreciation of the true implications of capacity building in the first backlog project, namely the need for long-term investment by the department in terms of staff and material resources, the Minister of Home Affairs made it quite clear at the launch of the second backlog project that capacity building had become a central consideration.65 While at the time of writing it was still far too soon to evaluate the results of the second backlog project, it did appear that the DHA’s efforts to eliminate the, now much larger, backlog stemmed both

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from a new sense of political commitment and a continuing need to rid itself of a considerable administrative headache. What can ultimately be learned from both of these backlog projects will, however, depend upon further independent and more comprehensive evaluations. Yet even the tentative conclusions on lessons learnt offered here can be considered as relevant if one is to appreciate the considerable challenges of implementing South Africa’s status determination regime, and indeed other aspects of the DHA’s nascent migration policy regime.

Notes 1. Regulations to the Refugees Act 130 of 1998, R366, 6 April 2000. 2. Refugees Act (130/1998): Regulation 19: Transitional Arrangements, Department of Home Affairs, Government Notice 938, 15 September 2000. 3. First Phase: UNHCR, ‘Operational Modalities for the Clearing of the Backlog of Asylum Applications in South Africa’, unpublished, Pretoria, not dated; and Second Phase: UNHCR, ‘Project Description (on the Backlog Project, Second Phase)’, unpublished, Pretoria, not dated. Both the UNHCR and Lawyers for Human Rights (LHR) confirmed to the author that these were the documents referred to in paragraph b of Regulation 19, regarding (respectively) the first and second phases of the project. 4. Confirmed at a meeting at UNHCR headquarters in Geneva on 27 September 2001, with the author and representatives of the UNHCR, the NCRA and LHR present. The UNHCR confirmed that the project cost approximately US$500,000. 5. UNHCR, ‘Operational Modalities’, 6. 6. Confirmed in a meeting with the UNHCR’s Refugee Status Determination (RSD) project, together with NCRA and LHR, Geneva, 27 June 2001. 7. This consisted of the UNHCR Deputy Regional Director for Southern Africa, the Director-General of Home Affairs and the National Director of Lawyers for Human Rights. 8. A common complaint of attorneys and legal advisers representing immigrants and refugees in various matters before the DHA is that documents relating to a client are not often readily forthcoming from the DHA, raising allegations of ‘ad hocism’. See J. Handmaker, ‘Who Determines Policy? Promoting the Right of Asylum in South Africa’, International Journal of Refugee Law 11, no. 2 (1999): p. 295. While the department has improved matters by introducing ‘quality control’, with some information posted on its website, DHA policy continues to be difficult to assess because even when it is promulgated in official government circulars, guidelines, instructions, etc., access to such documents remains limited. With the Promotion of Access to Information Act 2 of 2000, South Africa has, however, opened up new possibilities for requesting Departmental documentation. For more on this, see I. Currie and J. Klaaren, The Promotion of Access to Information Act: A Commentary (Johannesburg, 2002). 9. UNHCR, ‘Operational Modalities’, 5. 10. As explained later, it became clear during the course of the project that many files were incomplete and inadequate for purposes of making a status determination. 11. Confirmed in an email communication from LHR to the author, 11 March 2002. 12. UNHCR, ‘Operational Modalities’, 3–5. 13. Retaining this committee raised certain legal and technical questions, as discussed later in this chapter.

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14. Contract of Placement in the Sub-directorate: Refugee Affairs, Department of Home Affairs, as part of the DHA/UNHCR/LHR Tripartite Agreement, entered into between Lawyers for Human Rights, item no. 8, no date indicated. 15. UNHCR, ‘RSD Project UNHCR General Coordinator: Terms of Reference’, unpublished, Pretoria, no date. References and quotes in this section are taken from this document. 16. UNHCR, ‘Refugee Status Determination Project Field Coordinator (Team Leader): Terms of Reference’, unpublished, Pretoria, no date. References and quotations in this section are taken from this document. 17. UNHCR, ‘Refugee Status Determination: Project Eligibility Officer (Case Worker): Terms of Reference’, unpublished, Pretoria, no date. 18. Ibid. 19. Facilitators from the Trauma Clinic of the Centre for the Study of Violence and Reconciliation (CSVR) in Johannesburg made a substantial contribution to this component of the course. 20. Meeting at UNHCR offices in Geneva, on 27 September 2001, above, note 6. 21. The US State Department reported in 2002 that ‘asylum applications are not processed efficiently by the Department of Home Affairs due to poor management and insufficient resources’, United States Bureau of Democracy, Human Rights, and Labor, Country Reports on Human Rights Practices 2001 (Washington, 2002). 22. The author has since been informed that the UNHCR’s policy in this respect has changed, and they have introduced a ‘staged approach’ to all projects. Email communication from the UNHCR, dated 14 March 2002. 23. UNHCR, ‘Operational Modalities’, 1. 24. Meeting at the UNHCR on 27 September 2001, above, note 6. 25. Ibid. 26. Ibid. 27. ‘New asylum regulations anger refugees’, IRIN News (South Africa), UN OCHA, posted 9 April 2001. 28. Ibid. 29. Confirmed in an email communication from LHR to the author, dated 11 March 2002. 30. NCRA, ‘Report on the Exercise to Clear the Backlog of Asylum Applications at Appeals Phase in South Africa’, unpublished, Pretoria, 2001, p. 1. 31. UNHCR, ‘Project Description’, 2. 32. Irregular migration is becoming a dominant focus (if not a kind of mantra) of states’ and indeed intergovernmental organisations’ attempts to ‘combat migration while preserving the institution of asylum’. See J. Handmaker, ‘review of B. Ghosh et al., Managing Migration’, International Journal of Refugee Law, 13, no. 3 (2001): 483, footnote 2. 33. This aspect of the project was a further indication of increasing collaboration between the IOM and the UNHCR. For further details of this, and resulting tensions that have emerged, see a range of documents concerning migration and control that have been posted on the Internet: http://www.lhr.org.za/refugee/global.htm. 34. Meeting at UNHCR offices in Geneva on 27 September 2001, above, note 6. 35. NCRA, ‘Report’, 1. 36. Meeting at UNHCR offices in Pretoria on 8 November 2004. 37. Email communication with New Zealand judge Martin Treadwell, 2 July 2001. 38. Meeting at UNHCR offices in Geneva on 27 September 2001, above note 7. 39. The problems encountered were mainly concerned with the ‘scheduling and tracing of files’, NCRA Report, above note 31, p. 2. 40. Meeting at UNHCR’s offices in Geneva on 27 September 2001, above, 6. 41. Ibid. 42. Meeting at LHR’s offices in Pretoria on 8 November 2004.

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43. Two vacant posts have apparently been filled from the pool of lawyers trained by the project; NCRA, ‘Report’ 3. 44. Meeting at UNHCR’s offices in Geneva on 27 September 2001, above, note 6. 45. By ‘properly’ is meant an independent and comprehensive evaluation. This was seen as a ‘big problem’ by UNHCR’s Regional Office in Southern Africa; meeting at UNHCR offices in Pretoria on 8 November 2004. 46. Ibid. Apparently, one of the principal causes of the huge backlog was the closing of the DHA’s largest refugee reception office in Braamfontein for a year and a half, while the replacement office was being prepared. It was never explained why the replacement office was not synchronised to open with the closure of Braamfontein office. 47. Ibid. 48. Ibid. The UNHCR indicated that ‘manifestly unfounded’ applications would be those received from India, Pakistan, Bangladesh, amounting to approximately 30–40 per cent of the total. Interestingly, the UNHCR had proposed that applicants whose claims were deemed to be ‘manifestly unfounded’ be permitted to apply for ‘another status’, both for the purposes of the second backlog project and in order not to ‘clog the system’ in future. 49. Ibid. 50. Ibid. 51. Ibid. 52. Interview by the author, 29 April 2006. 53. Ibid. 54. Ibid. 55. Ibid. 56. Ibid. 57. One lawyer in Cape Town complained that the backlog project had been moved to Airport Industria in Nyanga township, quite some distance from Cape Town city centre, without any external consultation. After DHA were informed that there was no existing public transport to the premises, the DHA responded that it intended to approach minibus taxi operators at Nyanga taxi rank to assist asylum-seekers. This was of dual concern to asylum-seekers. First, it would entail considerable extra costs; the Refugee Reception Office was located in the centre of town, closer to where most asylum-seekers and refugees live. Secondly, foreigners had for many years faced numerous, and often violent, xenophobic instances in Nyanga township, including documented instances where houses were burnt to the ground. At the time of writing, there seemed to be no permanent solution to this crisis. Letter to the author dated 17 July 2006. 58. Interview by the author, 10 April 2006. 59. Interview by the author, 24 April 2006. 60. Above, note 52. 61. NCRA, ‘Report’, 4. 62. This has been recognised even in countries with considerable resources, such as the USA. Similar programmes to eliminate asylum application backlogs have been criticised as leading to a ‘diminution in due process’; statement of Stephen YaleLoehr, American Immigration Lawyers Association on the Operations of the Executive Office for Immigration Review (EOIR), Before the House Committee on the Judiciary Subcommittee on Immigration and Claims, 6 February 2002, Washington, DC. 63. The UNHCR has reportedly since introduced a ‘staged approach to all projects, allowing [them] to evaluate at different stages … and analyse before the start of each project the implementing capacity on the ground’. Email communication from the UNHCR to the author, 14 March 2002.

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64. This may have gone to unnecessary extremes, as in Cape Town, where local lawyers were requested by DHA to train officials. UNHCR vigorously objected on the grounds that ‘it was responsible for doing the training’. Interview by the author, 24 April 2006. 65. Minister of Home Affairs, ‘Speech on the Occasion of Africa Refugee Day’, unpublished, Johannesburg, 2006.

7 SOLUCÃO DURÁVEL? IMPLEMENTING A DURABLE SOLUTION FOR ANGOLAN REFUGEES IN SOUTH AFRICA Jeff Handmaker and Dosso Ndessomin

 Introduction The debate on durable solutions for refugees has been a contentious one, generating a wide range of differing views on the value of various solutions. The search for durable solutions remains arguably the most formidable challenge in refugee protection, particularly in the case of large refugee populations from areas with long drawn-out conflicts that show little sign of abating. Historically, repatriation has been considered the most favoured solution, notably by the United Nations High Commissioner for Refugees (UNHCR), which saw the 1990s as the ‘decade of repatriation’. However, efforts to realise this have had mixed success, as Allen and Morsink1 and, more recently, Black and Koser2 have shown in great detail. Angola has long been a site of intense conflict. Blessed with some of the most abundant mineral resources on the African continent, notably diamonds and oil, it has been embroiled in conflict for four decades, ever since social and political movements fighting for their right to selfdetermination took up arms against Portuguese colonialists in 1961.3 While Angolans have been coming to South Africa for various reasons over the years,4 the country has hosted only small numbers of individual asylumseekers from Angola. By May 2004, South Africa had received a total of 13,725 applications for asylum from Angolans, of which nearly 5,000 had been approved.5 While this is a small number when compared with the

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hundreds of thousands of Angolans who found refuge in refugee camps in the Democratic Republic of Congo, Zambia and elsewhere, it is a sizeable proportion of the comparatively low numbers of asylum-seekers overall seeking asylum in South Africa. With efforts to secure peace in Angola showing some sustainability, the justification for claiming refugee status is becoming difficult to sustain; consequently, efforts to find a durable solution for Angolan refugees are gaining momentum throughout southern Africa, with a stress on repatriation as the ‘most preferred’ solution. On 14 September 2003, the South African government signed a tripartite ‘voluntary repatriation agreement’, together with the government of Angola and UNHCR, becoming the last country in the region to sign such an agreement in what is described as ‘Africa’s largest repatriation programme’.6 This agreement was signed despite the fact that no independent study has been undertaken of the readiness of Angolan refugees in South Africa to take part in such a programme and that the South African government and UNHCR have very limited experience of implementing large-scale repatriation programmes from South Africa.7 In fact, the only repatriation programme that has been undertaken from South Africa involved predominantly rural-based refugees from Mozambique, which as explained later proved largely unsuccessful. While the response from the government of Angola to the repatriation agreement has been lukewarm at best, reflecting some understandable concern as to how these young, urban-based refugees will be reintegrated, particularly in Angola’s overcrowded cities, the government of South Africa has expressed more enthusiasm. Explaining its support for the voluntary repatriation agreement as an act of humanitarian assistance, the South African Minister of Foreign Affairs stated: South Africa has a responsibility in the reconstruction of Angola … It was home to many South Africans during the anti-apartheid struggle, and the old regime was part of the destruction of Angola. We will do whatever we need to do to help.’8 Meanwhile, it appears that few Angolan refugees in South Africa share this enthusiasm. According to recent independent studies of Angolan refugees in Cape Town and Johannesburg, few seem willing to return.9 This chapter explores and confronts this dilemma. We take our cue from other studies on repatriation that have illustrated the fact that the success or failure of a durable solution, particularly voluntary repatriation, is not only tied to the reasons why refugees left their country in the first place, but also to the conditions of reception in the host state. We first present a brief historical sketch of the Angolan conflict and then examine the reasons why Angolans fled to South Africa and the conditions in which Angolans are living in South Africa. We next examine the legal basis for acquiring and losing refugee status for Angolans in South Africa and assess the experience to date of South Africa in providing durable solutions for refugees. We also explore the prospects for finding a durable

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solution for Angolan refugees, assessing their prospects of return, resettlement or integration in South Africa. Throughout, we try as best we can to reflect the perspectives of refugees.

Forty Years of Conflict in Angola: 1961–2001 The conflict in Angola began with a fight for liberation,10 and then turned into a civil war as the different liberating factions failed to find common ground. Many analysts, including Human Rights Watch, regard the conflict as one of the most violent and devastating in recent history. It forcibly displaced over 4 million people (most of whom stayed within the borders of Angola) and forced 400,000 people to seek refuge in neighbouring Zambia, Democratic Republic of Congo (DRC)/Zaire, Namibia and Congo-Brazzaville.11 Refugees have been hosted predominantly in large refugee camps in DRC/Zaire, Zambia and Namibia, with numbers totalling at least 200,000, but more likely 400,000.12 After the last Portuguese proconsul fled the country and declared Angola to be ‘liberated’, South Africa soon took an interest, both offering ‘sanctuary’ to white Portuguese colonists that fled the country and later playing a key role in destabilising the country. As Birmingham puts it: South Africa had an economic as well as a strategic agenda in Angola: it aspired to establish neo-colonial domination over a neighbour which, during the Portuguese colonial war, had been a valued ally. In order to restore ‘harmonious’ relations with Angola, South Africa decided to destabilise the [Soviet Unionbacked] government in the hope that when it fell it would be replaced by one that was more amenable to the economic needs of its giant industrial neighbour.13

With the discovery of diamonds and large oil reserves, Angola became caught up in the global dynamics of the Cold War, with the United States and the Soviet Union superpowers jostling for influence over the country and its rich mineral resources. Various efforts to broker peace deals in 1991 (the Bicesse Peace Accords) and in 1994 (the Lusaka Accords)14 were short-lived; civil war soon resumed, continuing to ravage the country and forcibly displace people. One of the reasons for the failure of these peace initiatives was the haste with which governments responded, notably concerning the demobilisation of soldiers and the return of forcibly displaced populations to areas that remained highly unstable.15 Porto has argued that, with the killing of the leader of the National Union for the Total Independence of Angola (UNITA),16 Jonas Savimbi in February 2002, a lasting end to the conflict between the government and rebel UNITA forces is in sight,17 although the country remains deeply scarred by the conflict, underdeveloped and filled with landmines. As Alex Vines put it already in 2000, some time before the conflict had finally

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ended: ‘Four decades of armed conflict have left Angola’s economy and social fabric in ruins.’18 Guus Meijer and David Birmingham commented in 2004 that: ‘Peace in Angola remains incomplete. The physical and psychological scars of war are still evident. The democratic deficit has not been remedied. The regime is still marked by its predatory history.’19

Fleeing the Conflict in Angola and Finding Refuge in South Africa: Reasons Why Profile of Angolan Refugees in South Africa According to the International Organisation for Migration (IOM), most Angolan refugee claimants (40 percent) originated from Luanda, with another large group coming from Uige (15 per cent), and the rest from other provinces.20 As mentioned earlier, they have settled almost exclusively in urban areas, mainly in Johannesburg (24 per cent) and Cape Town (75 percent), with smaller numbers in Durban and Port Elizabeth.21 Angolans began applying for political asylum as soon as South Africa implemented its fledgling refugee policy in 1994. A few who arrived before 1994 regularised their status through the SADC amnesty programme.22 The urban background of most Angolan refugees23 in South Africa is in contrast to countries such as Zambia and Namibia, where refugees usually come from a rural (farming) background. The Forced Migration Studies Programme of the University of the Witwatersrand in Johannesburg carried out an extensive, demographic survey of refugees in South Africa (hereinafter ‘Wits FMSP Study’), with comparisons with citizens and nonSouth Africans, including eighty-nine Angolans in Johannesburg (see Annexe 2 of this chapter). Most of those interviewed (73 per cent) were male and unmarried (80.9 per cent) and nearly half between the ages of eighteen and twenty-five. The remainder of Angolans interviewed were in their late twenties (20 per cent) or slightly older, with smaller numbers in their forties. Angolan refugees in South Africa tend to be well educated. The Wits FMSP study found that most who were interviewed (49.4 per cent) had finished secondary education (matriculation), with a smaller number (36 per cent) having finished primary education and approximately 11 per cent having finished university and/or postgraduate studies. According to IOM, like most refugees in South Africa, Angolans have difficulty in finding employment (23.5 per cent are unemployed). Of those that work, 14 per cent are vendors, 9 per cent are security guards and a further 8 per cent are employed in the construction industry. While these figures are high, it is worth noting that they are still lower than those for unemployed South Africans, suggesting that, while Angolans still face challenges in finding work, things are not as bad as they are for others.

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Another study concluded that the situation of refugees in South Africa has generally worsened, according to a Refugee Baseline Survey commissioned by UNHCR.24 The Wits FMSP study, asking a different set of questions, presents a more positive picture, concluding that 22.5 per cent of Angolans interviewed were engaged in study at a university or technikon (polytechnic) or in correspondence education, which is quite high when measured against the South African average of 3.9 per cent. A further 9 per cent described themselves as having their own business (also significantly higher than the South African average of 3.1 per cent), while 3.4 per cent reported being engaged in petty trading or working in a professional position (2.2 per cent). Only 3.4 per cent reported that they did not work, which is a positive indication that, despite many challenges, most Angolan refugees make an effort to meaningfully engage themselves in some form of employment or education.

Claimed Reasons for Leaving Angola The main reason for Angolans’ decision to flee their country, according to those who had been interviewed in Cape Town, was an unwillingness to be conscripted into the national army, known as the Movimento Popular da Libertação de Angola (MPLA).25 While this alone would not qualify one for refugee status in terms of the 1951 Refugee Convention, the consequences of refusing to serve might well result in one becoming a refugee. However, on the basis of the OAU Refugee Convention, the fact that the country was at war constituted grounds for affected individuals to claim refugee status on a prima facie basis.26 A few of those interviewed claimed they fled Angola because they had experienced atrocities.27

Reasons Given for Choosing South Africa There are a number of reasons why Angolans have sought refuge in South Africa, where refugees have the right (in theory) to work and study.28 Most came to South Africa not only seeking protection, but also hoping to study, find work and/or receive medical treatment. Refugees in South Africa also enjoy relative freedom of movement, in contrast to countries such as Zambia and Namibia, where they would be required to stay in a refugee camp. According to lawyers representing Angolan clients, some came to join families and social networks already existing in South Africa, knowing that these would supply some degree of support. It seems that some of the Angolan networks in South Africa date back to when the apartheid government recruited Angolans as part of a special battalion. Other Angolans came to work in the South African mining industry. It appears that these communities, which are also able to provide information about conditions in South Africa, have attracted younger Angolans arriving in South Africa since the introduction of refugee protocols in 1994.29

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The Wits FMSP study of Angolans in Johannesburg concluded that most chose South Africa as a place of refuge because it afforded educational opportunities (36.4 per cent), though a sizeable group also indicated political freedom (17 per cent) and economic opportunities (6.8 per cent) as a reason for coming there. Some of the refugees interviewed in Cape Town had previously stayed in refugee camps. They compared the conditions in these camps to prison; apparently, they were not allowed to work or leave the camps without permission, and the living conditions were not good.

The Conditions of Urban Refugees in South Africa: The Quest for Survival Since the early 1990s, when South Africa first began receiving asylumseekers, a total of 72,000 thousand people have sought refuge in the country.30 These refugees have had to cope with considerable legal and socio-economic challenges, in spite of the introduction of new legislation, which replaced the apartheid-era Aliens Control Act of 1991. Trying to cope with the still unclear policy framework (as well as the general reluctance to implement existing policies) adds to the difficulties and stress experienced by already traumatised and displaced people. In particular, the government has frustrated attempts by refugees to apply for permanent residence. Section 27(c) of the Refugees Act 1998 provides that a refugee: ‘is entitled to apply for an immigration permit in terms of the Immigration Act 2001 after five years’ continuous residence in the Republic from the date on which he or she was granted asylum, if [it is certified] that he or she will remain a refugee indefinitely’. Further, because government departments and the private sector fail to circulate the necessary information, it is very difficult for an asylum-seeker or refugee holding a temporary residence permit31 to get assistance from social services. These difficulties are compounded by the rigidity of local and national government rules, which render it virtually impossible for a person without a thirteen-digit identification number or passport to be accepted by any government processing system and therefore provided with any kind of service. ‘Organised corruption’ by government officials in the Department of Home Affairs has also been a significant problem, although the department claims to be taking steps to eliminate it.32 In extreme cases, xenophobia has manifested itself in harassment and even violence meted out both by the general public and the police.33 In the Wits FMSP study, Angolan refugees overwhelmingly reported their lack of faith in the police, with 48.3 per cent claiming that they would not think going to the police would help if they were robbed. Even worse, 86.4 per cent of Angolans in the Wits FMSP Study reported being harassed by the police.

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South Africans have strong opinions about foreigners in South Africa, shaped by the way local media present them. Accurate, truthful and factual coverage on refugees, asylum-seekers and migrants is unfortunately not the norm and there is a general tendency to lump all foreigners together into the same category. The media and the public seldom distinguish between bona fide refugees/asylum-seekers and illegal migrants, for instance. Compounding this is the extreme difficulty refugees experience in accessing social services, health care, education, banking facilities and housing.34 As is the case for many South Africans, refugees struggle to find employment, although refugees and asylum-seekers face the additional struggle of claiming their legitimate right to work. While the Refugees Act provides that both asylum-seekers and refugees are permitted to work, in practice the residence permits they hold are temporary, renewable ones (in the case of asylum-seekers, on a one month or even biweekly basis and, in the case of refugees, annually). Given these restrictions, most employers are reluctant to employ refugees and especially asylum-seekers, which is why many are found in informal or self-help employment situations. Such experiences have, however, resulted in asylum-seekers and refugees developing extraordinary skills and methods of survival.35

Life and Solidarity in Refugee Communities In most cases, asylum-seekers enter South Africa individually. However, they tend to regroup and live together in communities determined by country of origin.36 Regrouping enables refugees to share practical and emotional problems and support one another. This support includes sharing of accommodation (particularly for newcomers), exchange of information on living in South Africa, advice on the rules for applying for and renewing asylum-seekers’ permits and facilitation of basic economic activities. The latter is much needed, as refugees and asylum-seekers do not receive any direct assistance (food and shelter) from the state, and NGOs have only very limited resources. The most proactive member of a community, who tends to be a compassionate and already well-connected person, is often chosen (through a democratic process) to lead a particular refugee community. His or her role is to assist and protect the interests of each member of that community, to interact with other communities and organisations such as refugee service providers and the Department of Home Affairs. He or she also may undertake duties such as disseminating updated information on relevant policies, facilitating the release of a community member from police custody or a deportation camp, or taking a newcomer to the reception centre for the first time.

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Positive Economic Contribution of Asylum-seekers and Refugees Contrary to the popular assumption that foreigners steal jobs away from locals, it has been established that foreign traders in fact contribute to the economic growth of South Africa and create new job opportunities. In a study on the small-enterprise economy in Johannesburg, a key finding was that immigrants in general and refugees in particular created jobs for South Africans, rather than the other way around. The seventy small, micro and medium entrepreneurs interviewed had generated a total of 227 jobs; an average of 3.3 jobs per business.37 The Wits FMSP study came up with similar findings, concluding that the majority of those whom Angolans had hired to do work for them were South Africans of another ethnic group.

Legal Basis for Claiming (and Losing) Refugee Status in South Africa Since the introduction of refugee status determination procedures in 1994, most Angolans arriving in South Africa have been able legally to establish their refugee status. As we have explained earlier in this collection, under the 1969 OAU Refugee Convention, the grounds for claiming refugee status are broader than those provided by the 1951 UN Convention Relating to the Status of Refugees (and associated 1967 Protocol).38 South Africa completed ratification of both these Conventions in 1996 and later incorporated the broader OAU definition of a refugee into its domestic law. As van Beek has illustrated, to enable the processing of large numbers of potential refugees, the South African government has up till now granted refugee status to Angolans on a prima facie basis.39 The fact that South Africa’s refugee legislation – incorporating the broader OAU refugee definition – has provided most Angolans with an opportunity to be legally identified as refugees on an individual basis is in stark contrast to the situation in most other host countries with urban-based refugee populations.40 Section 5 of South Africa’s Refugees Act, in accordance with international refugee law norms, also provides for circumstances in which a person’s refugee status might cease.41 Section 5(2) provides for the customary ‘exception’, namely that one can provide ‘compelling reasons’ why s/he should not be deported.42 This latter provision is particularly important, as Angolan refugees will need to establish these ‘compelling reasons’ in order to justify their stay to a South African administration that up until now has displayed a decided reluctance to grant refugees permanent residence.43 Apart from providing the opportunity to obtain permanent residence, which the South African government has repeatedly demonstrated it is reluctant to do, the Refugees Act does not specifically provide for other durable solutions (resettlement and repatriation) should it be determined that

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refugee status must come to an end. However, in the case of repatriation, South Africa is bound by Article 5(1) of the 1969 OAU Refugee Convention, which states that ‘the essentially voluntary character of repatriation shall be respected in all cases and no refugee shall be repatriated against his will’.44 It is our submission that the ‘voluntary character of repatriation’ can only be respected if Angolan refugees are provided with alternatives, including resettlement (to a third country) and integration (permanent residence in South Africa).

Experiences of Durable Solutions in South Africa South Africa does not have a good track record so far in implementing durable solutions. Its most recent experience was to find a solution for the large, resident population of Mozambicans who remained in South Africa following the 1992 Peace Accord between RENAMO and FRELIMO forces.45 This involved a repatriation programme, followed by a programme to regularise the status of Mozambicans in South Africa by providing them with a form of amnesty.

Failure of Repatriation from South Africa – The danger of false assumptions While in other host countries in southern Africa the repatriation of Mozambicans – in terms of numbers at least – was comparatively more successful,46 the first and only large-scale repatriation programme of refugees from South Africa patently was not. As Dolan pointed out in his wellresearched study of the Mozambican repatriation programme: ‘The major weakness in the planning process was that it was based on a faulty assumption about how many people were interested in returning at that point in time.’47 This assumption was based on highly questionable assessments, conducted by an organisation with no previous experience in this area,48 which excluded those who had migrated to urban areas, relied on a simple ‘yes/no question’ and in one reported instance relied on information gathered at mass meetings where refugee men were ‘lined up in a row and interviewed’.49 In reality there remained serious doubts on the part of Mozambican refugees that the peace accord would prove to be a durable end to the conflict in the country.

Regularisation Programme for Former Mozambican Refugees In 1999, the South African government, with funding from the European NGO – AWEPA-Refugiado, initiated a process for regularising the status of former Mozambican refugees. This was intended for former Mozambican refugees who had not taken up repatriation (or returned on their own) to

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Mozambique and had not benefited from previous government amnesties for miners and SADC citizens. The programme that was ultimately implemented had some positive results, but it also had severe drawbacks, mainly due to persistent delays in implementation but also because of the extent to which NGOs were prevented from playing an effective monitoring role, poor coordination and limited attention paid to social inclusion.50

Key Lessons In summary, the key lessons from South Africa’s earlier efforts to find a durable solution for former Mozambican refugees in South Africa are: (1) that they should be based on proper assumptions about what refugees desire and are prepared to do; (2) that they should provide for adequate, verifiable measures of distributing information on country of origin; (3) that they should follow due process considerations; and (4) that they should be based on an appropriate policy framework developed by government and UNHCR in consultation with civil society. With the hindsight of past experiences, we now assess the prospects for implementing any of the three universally acknowledged durable solutions in respect of the current, urban-based refugee population, namely: repatriation to a refugee’s country of origin (Angola); resettlement (to a third country) and integration (in South Africa).51

Prospects for Return to Angola Following the death of UNITA rebel leader Jonas Savimbi, it seems that, with the exception of Cabinda province,52 the prospects of a durable peace in Angola are more certain than ever before. Consequently, countries around the world are increasingly unwilling to grant permanent status (integration) to Angolans, and are rather more keen to facilitate return to or resettlement in Angola. There is particular pressure being felt by countries hosting large populations of Angolan refugees in refugee camps; riots have taken place in Osire refugee camp in Namibia.53 The UNHCR is also actively pursuing possibilities for facilitating the return of tens of thousands of forcibly displaced persons back to Angola.54 These organised efforts at return are being paralleled by reports of ‘spontaneous returns’ from refugee camps in Zambia, as in the case of Mayukwayukwa camp, from which 500 refugees reportedly left en route to Angola. The UNHCR responded with expressions of concern and hasty explanations, including this statement from a UNHCR representative: ‘I also wish to underline that the few hundred Angolan refugees who left Mayukwayukwa settlement spontaneously, did not do so due to hunger or any other reason, except their desire to return to Angola, in view of the peace currently prevailing in that country.’55

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But to what kind of country are Angolan refugees returning? It is important that, if one is intent on ‘promoting safety and dignity’ in a truly voluntary repatriation programme, two key considerations be taken as a pre-requisite: (1) that there be a proper consideration of alternatives offered to potential repatriates and (2) that it be comprehensively established that the resolution to a conflict that once caused persons to become refugees is durable and lasting.56

Reports of Conditions in Angola While acknowledging that ‘peace has brought hope’, Human Rights Watch reports that it has also brought a range of challenges, notably difficulties being faced in repatriating tens of thousands of refugees. The organisation paints a grim picture: ‘After decades of civil war, Angola’s infrastructure lies in ruins. Landmines litter the countryside and hospitals, health clinics and schools were destroyed in the fighting. A lack of qualified professionals in the interior means basic health and education services are not available to the majority of the population.’57 The same Human Rights Watch report further stresses concerns regarding the demobilisation of combatants who desire to be identified as returning refugees or former internally displaced persons in order to access humanitarian assistance. As a consequence, many former soldiers have been excluded from various demobilisation programmes. Amnesty International has expressed concerns over ongoing human rights violations, recently reporting on arbitrary detentions and torture in the Cabinda province.58 It has also reported on mass forced evictions in Luanda, to which many refugees are returning, particularly urban-based refugees. As Amnesty’s report confirmed: ‘Few of Luanda’s inhabitants enjoy an adequate standard of living. Most of them live in overcrowded shanty towns, or musséques … they expanded … as people fled to the city as a direct or indirect result of the 27-year conflict.’59 The South African-based Institute for Security Studies (ISS), while relatively optimistic that the peace process will succeed, is less so concerning repatriation. Referring to a lack of basic services and lack of effort being put into the reconstruction of Angola,60 one researcher commented ‘the country is not yet ready for the returnees’.61 On the other hand, it is reported that, despite Angola’s dubious reputation as ‘one of the world’s most corrupt regimes’,62 it is still acknowledged that UNITA has suspended its armed rebellion. It even seems that preparations are being made for a donors’ pledging conference,63 which signals that the country’s economy is moving away from one based on war to ‘something more recognisable’, which is likely to attract investors keen to exploit the country’s considerable resources.64 However, despite what the conditions might objectively be in Angola, it is the perceptions of refugees that ultimately determine their reluctance or desire to return.

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Reasons for Reluctance While most Angolan refugees who were interviewed in the Cape Town and Johannesburg studies reported their reluctance to go back, a distinction could be made between those who want to go back eventually and those who emphasised that they definitely did not want to return. These sentiments were confirmed by legal assistance organisations, UNHCR and IOM, all of whom communicated in interview that they did not expect many Angolan asylum-seekers in South Africa would want to return at this stage.

Desire to Go Back, but Not Now The majority of those interviewed in Cape Town who wanted eventually to go back still had the feeling that Angola was their home, though they confirmed that the conditions in Angola were ‘not good’. They expected that there would be no schooling for their children, limited prospects for work or study opportunities, poor hospitals and no support from government.65 But there were also more protection-related reasons that Angolans raised. Although it was acknowledged that Angola might officially enjoy peace, many Angolan refugees interviewed in Cape Town had their doubts that this would be sustained. They claimed that their faith in peace was destroyed in 1992 when fighting started again just after the ceasefire was announced as part of the Bicesse Peace Accord. The lack of faith in government was also raised; it was claimed that Angola had not reached a state of democracy and power was in the hands of a few families. Angolans insisted that they would wait and see what the next election would bring.66 The lack of willingness to return for this reason was confirmed by legal assistance organisations, which claimed that most Angolans were reluctant to return as they felt that safety in Angola was not guaranteed.67 The Wits FMSP study approached this issue from another perspective, asking Angolans in Johannesburg where they would like their children to grow up. Most (44.3 per cent) stated that this would be Angola, while the second largest group (23.9 per cent) mentioned (resettlement to) a third country, with the third largest group (21.6 per cent) claiming they would like their children to grow up in South Africa. Angolans were clearly concerned with a long-term option; most Angolans in Johannesburg (40.5 per cent) expected they would be in South Africa, with a still sizeable group (34.8 per cent) claiming they expected to be back in Angola. A smaller group (11.2 per cent) expected to be resettled to a third country.

No Desire to Go Back The other group of Angolan refugees interviewed in Cape Town expressed a complete reluctance to go back and wished to stay in South Africa

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permanently. Many of the refugees from this group had experienced terrible atrocities, from which they claimed to be deeply traumatised; they do not feel mentally capable of going back. For this group of Angolan refugees, it should not prove too difficult to establish ‘compelling reasons’ for not wanting to repatriate back to Angola, as indicated above.

Indicators Rather than Conclusive Reasons Ultimately, it was difficult on the basis of the interviews to conclusively establish as to whether (and why) Angolan refugees might be enthusiastic or reluctant to return to Angola. Decisions were influenced by different, often interlinking, circumstances, including study and job opportunities, perspectives of peace in Angola, levels of trust in government and other issues. However, it was possible to identify a range of important indicators. Notably, although (often violent) instances of xenophobia68 in South Africa make it difficult to establish a permanent home in South Africa, Angolan refugees still overwhelmingly expressed a preference for these living conditions to the situation in Angola.

Lack of Information to Make an Informed Decision A common reflection amongst nearly all those interviewed is that there is a fundamental lack of information feeding back from Angola to make a (voluntary) decision on repatriation. This has been identified in numerous recent studies on repatriation to be a key factor in a refugee’s decision whether or not to return to the country of origin. As Dolan has illustrated, this was a key contributing factor to the failure of the repatriation programme for Mozambicans from South Africa.69 Considerations that are taken into account by refugees in deciding whether or not to repatriate are far more complex than is generally acknowledged. As the interviews in Cape Town confirmed, Angolan refugees confirm the importance of not only knowing what the conditions are in Angola, but in developing their own education and skills base and generating additional income to help assist their resettlement in Angola. Dolan refers to this phenomenon as ‘iterative processes’, which he describes as an ‘ongoing calculation … about how the socio-economic and political conditions in both host country and country of origin affect the prospects of different individuals in the household’.70 The recent history of Angola has amply demonstrated the link between awareness raising and efforts to find a durable peace. In 1997, during the last peace accord in Angola (which tragically proved to be short-lived), Angolan combatants that were interviewed by Hansen and Tavares had expressed considerable uncertainty regarding demobilisation and integration into Angolan society. Indeed, Hansen and Tavares indicated that

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the complete failure to take these doubts into consideration and support a process of demobilisation was one of the key reasons why an early peace accord in 1991–92 failed to take hold. As they concluded: ‘one clear message emerges from our survey: awareness that reintegration programmes exist … will encourage more soldiers to demobilise and this will further the peace process’.71 If these are the sentiments of parties to a conflict, then the views of those who are victims of the conflict are surely also worthy of consideration. Indeed, the interviews in Cape Town confirm that concerns over the durability of the current peace accord remain a fundamental issue of concern amongst Angolan refugees: ‘People can say that there is peace, but that is what they said last time as well and the war started again … I don’t want to return.’72

Prospects for Resettlement For refugees in South Africa, resettlement to a third country is largely an illusion. While UNHCR has continued to misleadingly suggest that this is an option, the UN organisation has only very rarely endorsed applications for resettlement from South Africa, despite an ever-increasing number of applications received directly or through one of its implementing partner organisations. UNHCR facilitated the resettlement of only a handful of refugees (eighty) in 200273 and to the authors’ knowledge none were Angolans. The US Committee for Refugees Report in 2002 reflected the UN agency’s sentiments, based on what they reported as a ‘trend of unfounded applications’, and claiming that the increasing discontent felt by refugees in South Africa regarding their (restrictive) selection criteria and length of time in processing increasingly ‘posed a security risk to the agency’s staff’.74 This has been confirmed by a senior UNHCR representative, who stated off the record that ‘resettlement is not a viable durable solution for large numbers of refugees because the majority of them do not fulfil the relevant criteria’.75

Prospects for Integration in South Africa As Rogge has noted, most refugee situations result in permanent exile: Today’s refugee problems have, clearly, become much more complex and the disruptions caused by flight are much more severe and lasting. Many refugees have now been in exile for over a decade – some for well over two decades – and there is a growing apprehension among many about their prospects of returning. For a variety of reasons some may not even wish to return if and when the opportunity arises.76

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In contrast to the one-off amnesties, efforts to provide a more welcoming environment for post-1994 refugees in South Africa have shown greater promise towards facilitating long-term possibilities for integration by way of social inclusion, although efforts to obtain legal residence have presented more difficulties. Efforts to facilitate greater social inclusion for refugees in South Africa have been largely due to the activities of numerous civil society organisations and groups dedicated to assisting and/or advocating on behalf of refugees. These include the Coordinating Body of Refugee Communities (CBRC)77 and members of the National Consortium for Refugee Affairs (NCRA)78 and especially the Roll-back Xenophobia Campaign. Possibilities for greater inclusion have been enhanced in recent years by an increasing public recognition on the part of the South African government that they must do something to avert rising xenophobia and help integrate refugees in the local population. Accordingly, the Department of Home Affairs has eagerly sought to reassure refugees that it has their best interests at heart, particularly on well-publicised occasions such as Africa Refugee Day. However, these efforts have been hampered by the Department’s continued lack of an effective policy to achieve integration by way of legal residence. Legal services organisations have noted that, while many Angolans have expressed a desire to achieve integration by way of legal, permanent residence in South Africa, very few Angolans, if any, have in fact been granted this status.79

UNHCR Pretoria Regional Office Views on Integration in South Africa Senior representatives of UNHCR’s Regional Office for Southern Africa have openly acknowledged that durable solutions for, especially urban-based, refugees in Southern Africa should favour integration. As Geddo, a former Assistant Regional Representative (Protection) in Southern Africa and now senior legal adviser in the UNHCR’s Africa Bureau, noted, on the basis that resettlement and repatriation from South Africa remained elusive options, ‘the only viable solution for refugees … is therefore local integration’.80 Geddo referred to a number of factors that mitigated against integration, citing lack of employment prospects, housing and other socio-economic factors as well as xenophobic tendencies, tension between refugees and service providers and restrictive government policies. However, despite these challenges, Geddo argued that UNHCR was still committed to local integration: Taking these constraints into consideration, the strategy of UNHCR to promote local integration of urban refugees in Southern Africa is based on a series of initiatives aimed at creating an ‘enabling environment’ which would facilitate it. Such initiatives are based on a three-pronged approach: (a) legal and institutional capacity building, to strengthen the legal framework and national capacity to

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uphold the institution of asylum and refugee protection; (b) public information and awareness campaigns to combat xenophobia and create a more favourable environment for the integration of refugees within the host community; (c) a shift from care and maintenance to solution-oriented assistance to facilitate the attainment of economic self-sufficiency.81

Notably, Geddo saw the creation of this ‘enabling environment’ as key to the success of this process of integration, which principally relied on promoting refugees’ self-sufficiency: The choice of the term ‘enabling environment’ arises from the acute awareness that the efforts of UNHCR and NGOs are not sufficient to achieve local integration of refugees, owing to the limited resources available. The objective is therefore to create conditions conducive for urban refugees to make an effective use of their skills, talents and ingenuity to achieve a meaningful and dignified life while in exile.82

This is consistent with the recommendations of a recent UNHCRcommissioned study of refugees in South Africa, which recommended that ‘The South African government should recognise the valuable contributions that the majority of asylum seekers and refugees can make to the South African economy and refrain from assuming that refugees are unskilled people or people who came to South Africa in search of better work opportunities.’83

UNHCR’s 1997 Urban Policy for Refugees Furthermore, UNHCR’s 1997 urban policy84 for refugees continues to be of great relevance, together with UNHCR’s development through local integration (DLI) initiatives.85 The 1997 policy expressed as its ‘central thrust’ to ‘promote self-reliance and avoid dependency’86 and provided for a range of guidelines on repatriation, provided it was seen as a ‘viable option’, as well as recognising that ‘many refugees, including many who have never received UNHCR assistance, are de facto locally integrated in urban areas’.87 A recent UNHCR-funded external evaluation of this 1997 policy by Sperl,88 in the context of urban refugees in Cairo, highlighted the fact that efforts to achieve self-reliance depended on a ‘developmental’ approach that directly involved refugees: ‘This includes the need to seek a positive partnership with refugees and engage them directly in the design and implementation of self-reliance programmes.’89 The evaluation identified resettlement and local integration as essential elements in a ‘three-pronged approach’, with local integration to adopt the following key objectives, namely: ‘a) increasing assistance for education and vocational training, b) introducing special measures to enhance the income generation potential of refugee women and c) limiting ongoing care and maintenance assistance only to special hardship cases such as the elderly and the infirm’. The evaluation went on to recommend that ‘the design of the reoriented programme should be developed in consultation and

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cooperation with the refugees themselves, and refugees with appropriate skills should be directly involved in the implementation of project activities. To the extent possible this should be coordinated through recourse to the existing network of refugee committees.90

Learning from Other Experiences: The Importance of Communication If comparative experience teaches us anything, it is that effective communication is vital to the success of any durable solution strategy. Two Dutch researchers, Nieuwhof and Mohamoud, in a 2001 study of the Somali community in the Netherlands, concluded that ‘Communication is the key to participation,’ particularly with government officials.91 The researchers organised focus groups in order to identify various bottlenecks that continually arose in the context of relationships between the Somali (refugee) community and Dutch (host country) society and to clarify the role of government in resolving these bottlenecks. Black and Koser confirm these findings in the opening chapter of their comprehensive collection of repatriation studies around the world. According to their findings, a range of ‘systematic issues’ take on special relevance in the contemplation of refugee repatriation programmes; these include ‘the existence and extent of social networks’ and the ‘creation or exacerbation of vulnerability’,92 particularly with reference to children, but also coinciding with gender considerations. Both of these ‘systematic issues’ rely on mechanisms for ensuring effective communication, both within existing social networks and amongst particularly vulnerable groups of refugees.

Conclusions From both a legal and political perspectives, we believe that the starting point of whether a repatriation programme is viable must reflect the ‘voluntariness’ requirement contained in Article 5 of the 1969 OAU Convention on the Specific Aspects of Refugee Problems in Africa,93 which is a principle also reflected in numerous policy documents relating to repatriation programmes in other parts of the world. The lack of ‘voluntariness’ has proved to be a principal factor in the assessment of earlier repatriation programmes, including Dolan’s study, which critiqued the UNHCR 1994 repatriation programme to Mozambique. Dolan’s study emphasised the need for such programmes to recognise the ‘calculation’ that refugees are constantly undertaking about how social, economic and political considerations in both the host country and country of origin affect their future prospects.94

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It is difficult to avoid the conclusion that the South African government’s somewhat vague justification and the Angolan government’s relative ambivalence in supporting the tripartite voluntary repatriation agreement with UNHCR hide a continued reluctance to achieve ‘real’ integration of refugees in South Africa or reintegration in Angola. Rather than actively exploring how refugees might more effectively take part in South African society, beyond promises made around the annual Africa Refugee Day festivities, the South African government instead has accorded far greater attention to ever more restrictive reception provisions, and is possibly even revisiting proposed reception centres for arriving asylum-seekers, discussed in Chapter 8 of this collection.95 Given the significant implications for the individual refugees concerned, not to mention the considerable investments that are being made to ensure the success of these programmes, the governments of Angola and South Africa and UNHCR would all do well to critically examine whether plans for repatriating urban-based Angolan refugees are consistent with the social and economic realities of this group. The contributions that Angolans have made, and continue to make to South African society should not be underestimated, nor should their potential contributions to the reconstruction of Angola in the context of a properly organised voluntary repatriation programme. Any durable solution must be based on the right assumptions. In this regard, it would also be worthwhile to revisit UNHCR’s 1997 urban policy96 for refugees, with reference to the current context of urban refugees in South Africa. As the data we considered have shown, the reasons why Angolans came to South Africa in the first place reflect the complex issues involved in deciding where to seek refuge. They also emphasise that ‘effective protection’ involves considerably more than mere physical security.97 It is worth noting that in seeking a country of refuge, a refugee’s element of choice is undeniably linked to their social and economic background. Coming from an urban background themselves, Angolan refugees in South Africa were clearly not the ‘poorest of the poor’ in Angola, and possessed the means with which to make the long trip to South Africa, rather than being forced to seek refuge in a camp in the DRC, Zambia or Namibia.98 All these factors must surely now be of central consideration in developing durable solutions for this large group of refugees resident in South Africa. More specifically, it is important to assess what can be learned from similar, past programmes in South Africa and from the experiences of other countries. With all this in mind, it is possible to isolate two key factors which South Africa’s future planning of durable solutions ought especially to consider, namely facilitating inclusion and ensuring an appropriate policy framework. The South African government’s role in facilitating inclusion requires an intensive programme for tackling the prevailing xenophobia in the country and allowing for a fair opportunity to obtain legal residence. Consultation on developing such a programme and an appropriate policy framework

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should draw on expert communication skills, involving all key stakeholders and especially refugee communities, from the very beginning of any planning for a durable solution. An appropriate policy framework also requires due process guarantees, requiring the authorities to make objectively verifiable decisions and providing the opportunity for each Angolan to have his/her case heard. In the light of all these experiences, it is hoped that the current Angolan repatriation programme will be independently evaluated, that further lessons will be learned from this and past efforts to find a durable solution, and that there is in future greater involvement from all key stakeholders in finding a durable solution for refugees in South Africa.

Annex 7.1: Results of the Wits Forced Migration Studies Programme (FMSP) Study of Angolans in Johannesburg 1. Respondent’s Gender (item 6 in original survey) Angolan

South African

Non-South African

73.0% 27.0% 89

46.9% 52.8% 390

70.6% 29.4% 343

Angolan

South African

Non-South African

18–25

48.3%

30.2%

37.2%

26–30

20.2%

21.2%

31.8%

31–35

13.5%

14.5%

15.5%

36–40 41–45 46–50 51–55 56+ Total

11.2% 5.6% 1.1% 0.0% 0.0% 89

12.4% 8.0% 4.1% 4.1% 5.4% 387

10.1% 3.9% 1.2% 0 0.3% 336

Male Female Total

2. How old are you/when were you born? (item 101)

3. Have you ever been married? (item 102)

Yes No Total

Angolan

South African

Non-South African

Total

19.1% 80.9% 89

39.0% 61.0% 387

35.7% 64.3% 345

37.4% 62.6% 732

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4. What is the highest level of education you have completed? (item 108)

Don’t know No formal schooling/some primary education Finished primary education Finished secondary education Finished tertiary education (BA, diploma, etc.) Postgraduate degree (masters, doctorate, etc.) Other Total

Angolan

South African

Non-South African

Total

0.0% 2.2%

0.0% 4.6%

0.9% 4.6%

0.4% 4.6%

36.0% 49.4% 5.6%

29.1% 51.8% 13.5%

18.3% 54.2% 18.0%

24.0% 52.9% 15.6%

5.6%

0.5%

3.8%

2.0%

1.1% 89

0.5% 392

0.3% 345

0.4% 737

5. Did you live in a city, town or village for most of your life before leaving country of origin? (item 200)

City Town Village Question not asked Total

Angolan

Non-South African

84.3% 11.2% 4.5%

79.1% 16.5% 3.8% 0.6% 345

89

6. Why did you ultimately decide to leave country of origin? (items 222–223)

For economic reasons (to get a job, improved standard of living) To escape war, conflict To escape political oppression To escape ethnic/tribal persecution/discrimination For educational opportunities To be reunited with relatives Easy access to third country Other (specify) Don’t know/refused answer Question not asked Total

Angolan

Non-South African

20.2%

36.8%

50.6% 6.7%

49.6% 20.9% 12.2% 20.0% 2.3% 2.6% 7.5% 0.6% 0.6% 345

46.1% 2.2% 16.9% 89

Note: Totals do not equal 100 per cent due to inclusion of multiple (2) responses. Responses receiving less than 1% in all categories of nationality have been excluded.

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7. What was the primary reason you ultimately decided to come to South Africa? (item 300) Angolan

Non-South African

6.8%

20.4%

17.0% 1.1%

3.5% 19.8% 0.9% 14.3%

For economic reasons (employment, improved standard of living) This was where I could be resettled To find political freedom To find religious freedom To escape ethnic/tribal persecution/discrimination. Tolerance To escape gender/sexual discrimination For education opportunities To be reunited with family Access to aid from international organisations Already familiar with South Africa In order to try to get to third country Other Don’t know/refused answer Question not asked Total

0.3% 14.3% 2.6% 0.3% .3% 7.3% 14.3% 1.5% 0.3% 343

36.4% 1.1% 1.1% 36.4% 88

8. Are you working now? How would you define your current employment status? (item 400)

Unemployed Working part-time (formal/ informal sector) Working full-time (formal/ informal sector) Casual employment/temporary worker Doing piece work Self-employed (run small business/income-generation project) Voluntary worker (receive no money) Housewife/homemaker University/technikon/ correspondence student Other Total

Angolan

South African

Non-South African

Total

30.3%

41.9%

39.2%

40.7%

5.6%

9.8%

3.8%

7.0%

6.7%

31.6%

7.0%

20.1%

2.2%

1.3% 1.8%

1.2% 1.2%

1.2% 1.5%

10.1%

6.2%

27.9%

16.4%

1.1% 1.1%

1.5%

0.9% 2.6%

0.4% 2.0%

32.6% 10.1% 89

4.4% 1.5% 389

12.2% 4.1% 344

8.0% 2.7% 733

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9. How would you describe the kind of work that you are currently doing here in South Africa/ Johannesburg? (item 401) Angolan DK/RA Factory worker /sweat shop Petty trading Domestic worker/caretaker/ custodian Restaurant employee Own business/businessman/ woman University/technikon/ correspondence student Doctor NGO Other professional Driver Volunteer work Mechanic Construction Housewife/homemaker Shoe repair Hawker Missionary/religious work Primary or secondary school student Does not work Other Question not asked Total

South African

Non-South African

Total

1.1% 3.4%

0.3% 3.1% 0.5%

0.6% 1.5% 6.7%

0.4% 2.3% 3.4%

1.1%

9.0% 3.1%

0.3% .9%

4.9% 2.0%

9.0%

3.1%

7.8%

5.3%

22.5%

3.9% 0.3% 0.3% 2.3% 1.0%

9.0%

14.2% 0.3%

6.3% 0.1% 0.3% 2.0% 0.7% 0.3% 1.0% 0.5% 1.9% 0.1% 6.8% 0.1%

4.4% 1.5% 6.7% 39.8% 344

2.2% 1.0% 16.4% 41.9% 733

2.2% 1.1% 1.1% 1.1% 1.1%

15.7% 3.4% 6.7% 30.3% 89

1.3% 0.8% 1.3% 0.3% 0.3% 0.3% 0.5% 24.9% 43.7% 389

0.3% 1.7% 0.3% 0.6% 0.6% 0.3% 2.6%

10. Since coming to South Africa, have you ever paid someone to do work for you? This could be at home or in your business. (item 429)

Yes No Don’t know/refused answer Total

Angolan

South African

Non-South African

Total

30.3% 69.7%

20.5% 72.4% 7.1% 381

34.1% 65.3% 0.6% 343

26.9% 69.1% 4.0% 724

89

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11. Which of these terms bests characterises the type of person or people you typically hire? (items 430–431) Angolan Refugees/migrants of your ethnic group 6.7% Refugees/Migrants of another ethnic group from country of origin 3.4% Refugees/Migrants from another country of origin 6.7% South Africans of your own ethnic group South Africans of another ethnic group 21.3% Other 2.2% Question not asked 69.7% Total 89

South African

Non-South African

Total

0.5%

3.5%

1.9%

0.5%

3.5%

1.9%

1.5%

6.1%

3.7%

9.0%

0.9%

5.2%

15.1% .8% 78.7% 390

22.7% 1.5% 66.3% 344

18.7% 1.1% 72.9% 734

Note: Totals do not equal 100 per cent due to the inclusion of multiple (2) responses. 12. If you were robbed, do you think going to the police would help? (item 528)

Yes No Don’t know/refused answer Question not asked Total

Angolan

South African

Non-South African

Total

25.8% 48.3% 6.7% 19.1% 89

63.3% 15.1% 5.6% 15.9% 390

40.1% 29.4% 5.8% 24.7% 344

52.5% 21.8% 5.7% 20.0% 734

13. Have the South African police or military or people claiming to be the South African police or military ever stopped you? (item 533)

Yes No Don’t know/refused answer Total

Angolan

South African

Non-South African

Total

86.4% 13.6%

26.4% 70.0% 3.6% 387

71.1% 28.9%

47.4% 50.7% 1.9% 730

88

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159

14. Where do you expect to be living two years from now? (item 800)

Where I am now In another part of South Africa In my community of origin In another part of my home country In a third country Other Don’t know/refused answer Total

Angolan

South African

Non-South African

Total

37.1% 3.4% 29.2%

57.4% 24.0% 3.9%

34.0% 6.1% 17.2%

46.4% 15.6% 10.1%

5.6% 11.2% 1.1% 12.4% 89

1.8% 3.9% 3.6% 5.4% 387

2.6% 24.7% 3.8% 11.3% 344

2.2% 13.7% 3.7% 8.2% 731

15. Where would you like your children/grandchildren to grow up? (item 801) Angolan

South African

Non-South African

Total

Where I am now 18.2% In another part of South Africa 3.4% In my community of origin 38.6% In another part of my home country5.7% In a third country 23.9% Does not want to have children Other 6.8% Don’t know/refused answer 3.4% Total 88

51.3% 31.1% 7.3% .8% 2.3% 2.1% 2.1% 3.1% 386

21.6% 5.2% 27.1% 3.2% 32.1% 0.3% 5.0% 5.5% 343

37.3% 18.9% 16.6% 1.9% 16.3% 1.2% 3.4% 4.3% 729

Annex 7.2: Article V of the 1969 OAU Convention Governing the Specific Problem of Refugees in Africa Voluntary Repatriation 1. The essentially voluntary character of repatriation shall be respected in all cases and no refugee shall be repatriated against his will. 2. The country of asylum, in collaboration with the country of origin, shall make adequate arrangements for the safe return of refugees who request repatriation. 3. The country of origin, on receiving back refugees, shall facilitate their resettlement and grant them the full rights and privileges of nationals of the country, and subject them to the same obligations. 4. Refugees who voluntarily return to their country shall in no way be penalized for having left it for any of the reasons giving rise to refugee situations. Whenever necessary, an appeal shall be made through national information media and through the Administrative SecretaryGeneral of the OAU, inviting refugees to return home and giving assurance that the new circumstances prevailing in their country of

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origin will enable them to return without risk and to take up a normal and peaceful life without fear of being disturbed or punished, and that the text of such appeal should be given to refugees and clearly explained to them by their country of asylum. 5. Refugees who freely decide to return to their homeland, as a result of such assurances or on their own initiative, shall be given every possible assistance by the country of asylum, the country of origin, voluntary agencies and international and intergovernmental organizations, to facilitate their return.

Notes 1. T. Allen and H. Morsink, eds, When Refugees Go Home: African Experiences (Geneva, 1994). 2. R. Black and K. Koser, eds, The End of the Refugee Cycle? Refugee Repatriation and Reconstruction (Oxford, 1999). 3. T. Hodges, Angola from Afro-Stalinism to Petro-Diamond Capitalism (Oxford, 2001). However, fighting had already begun in the 1950s, according to João Patro (interview at ISS in Pretoria, 14 November 2003). 4. These include conscription into a special unit of the South African Defence Force and employment in the country’s mining industry, as explained later. 5. UNHCR/Department of Home Affairs Statistics, May 2004. 6. ‘Angola-South Africa: Refugee agreement to be signed with Pretoria’, www.reliefweb.int, 12 December 2003. 7. Apart from the return of South African exiles, the only programmes that have been implemented concern the repatriation of Mozambicans and regularisation of former Mozambican refugees. UNHCR was not involved in the regularisation programme. 8. ‘New accord paves way for Angolan refugees to return from South Africa – UN’, UN News: Africa, 16 December 2003 (last accessed on 22 December 2003 at www.un.org/esa/africa/UNNews_Africa/lay.htm). 9. L.B. Landau and K. Jacobsen, Johannesburg in the 21st Century: Forced Migration, Survival, and the Socio-Politics of Urban Space, Partly published survey data collected in February-March (Johannesburg, 2003), used by permission of the Forced Migration Studies Programme, University of the Witwatersrand. These data is hereinafter referred to as the Wits FMSP Study. The Wits data confirms additional, non-specific assertions made in this article, which draw on a six-week field study by Suzanne de Kruijk in South Africa in which Angolan refugees and organisations in Cape Town were interviewed. Additional interviews were conducted in Pretoria with the UNHCR, Angolan embassy, IOM and others. 10. See note 3 above; also see J.G. Porto and I. Parsons Sustaining the Peace in Angola: an Overview of Current Demobilisation, Disarmament and Reintegration, ISS Monograph no. 83 (Pretoria, 2003). 11. Human Rights Watch, Struggling through Peace: Return and Resettlement in Angola, New York (August 2003). 12. A UNHCR official, in a telephonic interview on 21 October 2003, put the figure at ‘over 200,000’. Human Rights Watch, ibid., puts the figure much higher, at 400,000. 13. D. Birmingham, Frontline Nationalism in Angola and Mozambique (Trenton, 1992). As Birmingham later explains, one of those key concerns was access to oil, one of the few mineral resources that South Africa was lacking.

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14. Alex Vines refers to this process as having been ‘artificial, and contributed to Angola’s insecurity’, A. Vines, ‘Angola: 40 Years of War’, Track Two (Cape Town) 9, No.2, (2000). 15. A. Hansen and D. Tavares, From Repatriation to Reconstruction? The End of the Refugee Cycle? Ed. Black and Koser, 208. 16. União Nacional para a Independência Total de Angola. 17. J.G. Porto, R. Cornwell and H. Boshoff, Situation Report: Death of Savimbi Renews Hope for Peace in Angola (Pretoria, 2002). 18. A. Vines, ‘Angola: 40 Years of War’, 2. 19. G. Meijer and D. Birmingham, From Military Peace to Social Justice? The Angolan Peace Process, G. Meijer, ACCORD Series, Conciliation Resources (London, 2004). 20. Interview with Mark Heffernan, IOM, Pretoria, 14 November 2003. 21. The settling of refugees in urban areas is also linked to the presence of Refugee Affairs Offices in each of these cities, to which refugees and asylum-seekers must report on a regular basis to renew their permits. 22. SADC stands for ‘Southern African Development Community’. According to J. Crush and V. Williams, The New South Africans? Immigration Amnesties and Their Aftermath (Cape Town, 1999), a total of 145 Angolans were granted permanent residence through this programme. 23. In the Wits FMSP study, most of the interviewees were from a city (84.3 percent) or town (11.2 percent). 24. F. Belvedere, National Refugee Baseline Survey: Final Report (Johannesburg, 2003). 25. Translation: Movement for the Popular Liberation of Angola. One Angolan interviewed claimed that he was given the ‘option’ of joining the police. 26. Explained further later in this chapter. 27. The Wits FMSP study asked the same question in a survey of eighty-nine Angolans in Johannesburg, in which just over half of the Angolan respondents claimed they left their country to escape war or conflict. However, multiple responses provided by respondents emphasised mixed reasons for leaving Angola, with several claiming they left for educational opportunities (46.1 per cent) or for economic reasons (20.2 per cent). 28. The Refugees Act 130 of 1998 initially prohibited asylum-seekers from working and studying. However, this provision was overturned in a groundbreaking court decision, Watchenuka v. Minister of Home Affairs, Case No. 10/2003. 29. Interview with the International Committee of the Red Cross (ICRC) in Pretoria, 12 November 2003. 30. UNHCR Pretoria Office and South African Department of Home Affairs. 31. Permits are issued for a period of three months to two years, depending on the country of origin and issuing office. 32. ‘New Home Affairs DG ready to fight corruption’, City Press, 25 May 2003. 33. J. Handmaker and J. Parsley, ‘Migration, Refugees and Racism in South Africa’, Refuge 20, no. 1 (2002), 40–51. 34. See Chapter 11, this collection. 35. However, rather than noting these accomplishments as positive ones, the ‘street opinion makers’ (the media and politicians in particular) have instead exploited the xenophobic sentiments of the public by suggesting that economically active asylumseekers and refugees are in fact economic migrants who are keeping locals from their rightful jobs. 36. However, as the Wits FMSP study reported, this does not necessarily mean that asylum-seekers and refugees become members of formal organisations. 37. C.M. Rogerson, International Migration, Immigration Entrepreneurs and South Africa’s Small Enterprise Economy, Migration Policy Series, No. 3, (Cape Town, 1997). 38. 189 UNTS 150; 606 UNTS 267; South Africa acceded to the Convention and Protocol on 12 January 1996.

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39. I. van Beek, ‘Prima Facie Asylum Determination in South Africa: a Description of Policy and Practice’, in Perspectives on Refugee Protection in South Africa, ed. J. Handmaker, L. de la Hunt and J. Klaaren, Lawyers for Human Rights, (Pretoria 2001), 23. 40. For example, refugee status for Angolans in urban refugee centres in European host countries has generally not been an option, given that generalised violence is not recognised under the more limited 1951 UN Refugee Convention definition, even though Angolans have in many cases been granted subsidiary forms of protection in these countries. See T. Spijkerboer, ‘Subsidiarity in Asylum Law: the Personal Scope of International Protection’ in Subsidiary Protection of Refugees in the European Union: Complementing the Geneva Convention?, ed. D. Bouteillet-Paquet, et al (Brussels, 2002), 19–42. 41. Section 5(1) of the Refugees Act 130 of 1998 states that: A person ceases to qualify for refugee status for the purposes of this Act if – a) he or she voluntarily re-avails himself or herself of the protection of the country of his or her nationality; or b) having lost his or her nationality, he or she by some voluntary and formal act reacquires it; or c) he or she becomes a citizen of the Republic or acquires the nationality of some other country and enjoys the protection of the country of his or her new nationality; or d) he or she voluntarily re-establishes himself or herself in the country which he or she left; or e) he or she can no longer continue to refuse to avail himself or herself of the protection of the country of his or her nationality because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist and no other circumstances have arisen which justify his or her continued recognition as a refugee.

42.

43.

44. 45. 46. 47. 48. 49. 50.

Section 5(3) includes a further provision, one that runs contrary to international practice. This states that the government has the right to ‘withdraw’ an individual’s status if the reasons for their refugee status cease to exist. Ibid, section 5(2): ‘Subsection (l)(e) does not apply to a refugee who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself or herself of the protection of the country of nationality.’ Wits Law Clinic, in an interview with members of staff on 14 November 2003, reported that although many Angolan refugees have applied for permanent residence, none have been granted it. See Annex 7.2 of this chapter. Resistëncia Nacional Moçambicana (Mozambican National Resistance) and Frente de Libertaçâo de Moçambique (Mozambique Liberation Front). R. Jogge, ‘Repatriation of Refugees’, in When Refugees Go Home, ed. Allen and Morsink, 27. C. Dolan, ‘Repatriation from South Africa to Mozambique – Undermining Durable Solutions?’, in End of the Refugee Cycle, ed. Black and Koser, 90. This was ‘Masungulo’, a subsidiary organisation of the South African Catholic Bishop’s Conference, a South African non-governmental organisation. G. Rodgers, unpublished MA. thesis, 5–6, referenced by Dolan, ‘Repatriation from South Africa to Mozambique’. J. Handmaker and J. Schneider, The Status ‘Regularisation’ Programme for Former Mozambican Refugees in South Africa, Working Paper for the Wits Research Unit on Law and Administration (RULA) (Johannesburg, 2002).

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Available on the web, last accessed 10 November 2004 at: www.law.wits.ac.za/ rula/rula%20working%20paper%20amnesty.pdf 51. As UNHCR’s Executive Committee (EXCOM) stated in paragraph (i) of its General Conclusion on International Protection No. 95 (LIV) of 2003, while repatriation is still identified as the ‘preferred solution’, consideration of resettlement and local integration are also emphasised. The conclusion: ‘Reiterates the crucial importance of achieving durable solutions for refugees and urges States and UNHCR to continue their efforts in this regard to promote and facilitate, in conditions of safety and dignity, voluntary repatriation as the preferred solution, in addition to working proactively on local integration and resettlement opportunities where appropriate and feasible.’ 52. IRIN (the UN’s Integrated Regional Information Network) reports it as ‘one of Africa’s longest, least reported conflicts’; see ‘Web Special on Cabinda’, IRIN News (2003). Available on the web, last accessed on 24 March 2007 at: http://www.irinnews.org/IndepthMain.aspx?IndepthId=25&ReportId=66282 53. ‘Unrest at Osire Refugee Camp’, IRIN News, 20 October (2003). This riot led to a story the following day about UNHCR ‘preparing to repatriate about 200 Angolans from the Osire refugee camp in Namibia’; see ‘Osire Camp Calm after Disturbance’, IRIN News, 21 October (2003). 54. ‘Angola: Repatriations on Track – UNHCR’, IRIN News, 12 September (2003). 55. ‘Concern over Spontaneous Returns’, IRIN News, 24 September (2003). 56. J. Handmaker, ‘Returning Home: Learning Lessons from the Past, and Promoting Safety and Dignity in Repatriation and Return’, Africa Legal Aid Quarterly, JulySeptember (1999), 22. 57. Human Rights Watch, Struggling through peace. 58. Amnesty International, Angola: Arbitrary Detention/Fear for Safety/Fear of Torture/Incommunicado Detention, Report, AI Index: AFR 12/004/2002 (London, 2002). Indeed, it is reported that the South African government continues to grant status to refugees from Cabinda province due to ongoing fighting in the province. 59. Amnesty International, Mass forced evictions in Luanda – a Call for a Human Rights-based Policy, Report, AI Index: AFR 12/007/2003, (London, 2003). 60. In the view of the authors, this is a problem of both limited initiative on the part of the Angolan government and an overall reduction in bilateral assistance provided by major donor countries, such as the Netherlands. 61. Interview with J. Klover, Institute of Security Studies (ISS), Pretoria, 14 November 2003. 62. ‘Holding the cash’, Africa Confidential 44, no. 23, (2004), 3. 63. ‘Economic Reforms Bring Donor Conference Closer’, IRIN, Johannesburg, 19 May (2004). Available on the web, last accessed on 24 March 2007 at: http://www.irinnews.org/report.aspx?reportid=49942 64. ‘Holding the cash’, see note 62 at p. 5. 65. Experts such as those at the ISS confirm this (interview with Klover, see note 61). 66. The IOM reports they expect elections to take place in 2005; interview with Heffernan at IOM, Pretoria, 14 November 2003. This was confirmed in Southscan 18, no. 19, 19 September (2003): 6, in which it was reported that UNITA predicted that elections would take place ‘two years down the road’. 67. Interview with members of Wits Law Clinic, University of Witswatersrand, Johannesburg, 14 November 2003. 68. Handmaker and Parsley, ‘Migration, Refugees and Racism’. 69. Dolan, ‘Repatriation’, 100. 70. Ibid., 107. 71. Hansen and Tavares, ‘From Repatriation to Reconstruction?’, 208.

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72. Interview with ‘Maria’ (not her real name), age 32, in Cape Town at Department of Home Affairs, 3 November 2003. 73. US Committee for Refugees, Country Report: South Africa (New York, 2002), last accessed on 4 November 2003 at: www.refugees.org/world/countryrpt/africa/ south_africa.htm. 74. Ibid. 75. B. Geddo, ‘Durable Solutions to the Refugee Problem: UNHCR’s Regional Strategy for Southern Africa’, in Perspectives on Refugee Protection in South Africa, ed. Handmaker et al., 66. 76. Rogge, ‘Repatriation of Refugees’, 19. 77. The Coordinating Body of Refugee Communities (CBRC) is an umbrella body for refugees, established in 1999 by refugee community representatives to serve as a lobby and advocacy organ for the fourteen refugee communities that are represented in Johannesburg in order to address some of the numerous challenges faced by asylum seekers and refugees. 78. The National Consortium for Refugee Affairs (NCRA), established in 1997, arose out of a need to consolidate input from civil society to the emerging policy framework for refugee status determination in South Africa. It holds regular meetings within its network and has in recent years commissioned a number of research reports. See www.ncra.org.za. 79. Interview with Wits Law Clinic, Pretoria, 14 November 2003. 80. Geddo, ‘Durable Solutions’, 66. 81. Ibid. 82. Ibid., 66–67. 83. ‘High Unemployment among Refugees in SA’, Sunday Times (South Africa), 11 December 2003 (last accessed 22 December 2003 at www.suntimes.co.za/zones/ sundaytimes/newsst/newsst1071136002.asp). 84. UNHCR, Policy on Refugees in Urban Areas, Inter-Office Memorandum No. 90/97 (Geneva, 12 December 1997). 85. J. Crisp, The Local Integration and Local Settlement of Refugees: a Conceptual and Historical Analysis, UNHCR Working Paper, no. 102 (Geneva, 2004). 86. Ibid. at item 1. 87. Ibid. at enclosure, item 9. 88. S. Sperl, Evaluation of UNHCR’s Policy on Refugees in Urban Areas: A Case Study Review of Cairo, EPAU/2001/07 (Geneva, 2001). 89. Ibid., 5. 90. Ibid., 7. 91. A. Nieuwhof and A. Mohamoud, Communicatie, Sleutel tot Participatie (The Hague, 2001). 92. Black and Koser, End of the Refugee Cycle?, 11. 93. 1000 UNTS 46; South Africa acceded to this Convention on 15 December 1995. 94. Dolan, ‘Repatriation’. 95. See also, J. Handmaker, ‘No Easy Walk: Advancing Refugee Protection in South Africa’, Africa Today vol. 48, no. 3 (2001): 102, and J. van Garderen, ‘Introducing Reception Centres’, Botshabelo, Lawyers for Human Rights, Pretoria, 2 no. 3 (1999): 14. 96. UNHCR, Policy on Refugees in Urban Areas. 97. This link between access to socio-economic rights and refugee protection was carefully explored in a report by WARIPNET and the Lawyers Committee for Human Rights, ‘From Response to Solutions – Strengthening the Protection of Refugees through Economic, Social and Cultural Rights’, unpublished discussion paper presented at the 51st meeting of the Executive Committee of the High Commissioner’s Programme, Geneva, 2001. 98. Conditions in refugee camps have been well documented. See B. Harrell-Bond, ‘Camps: Literature Review’, Forced Migration Review 2, August (1998), 22–23.

PART III SPECIAL ISSUES ON REFUGEE POLICY IN SOUTH AFRICA

8 DETAINING ASYLUM-SEEKERS: PERSPECTIVES ON PROPOSED RECEPTION CENTRES FOR ASYLUM-SEEKERS IN SOUTH AFRICA Frankie Jenkins and Lee Anne de la Hunt

 Introduction In contrast to most African countries, refugees and asylum-seekers in South Africa enjoy freedom of movement within the country. In many ways, the circumstances of their arrival are very different from those elsewhere in the continent. Apart from the influx of refugees from Mozambique during the civil war in that country during the 1980s,1 South Africa has never experienced a mass influx of refugees. Many asylum-seekers are what the UNHCR refers to as ‘urban refugees’: young men, predominantly from cities and towns in their countries of origin. South Africa’s post-apartheid Constitution, adopted in 1996, provides that everyone has the right to freedom of movement within the borders of the country, and that all persons shall be free from fear of arbitrary detention. Also in 1996, South Africa became a signatory to both the 1951 UN Convention on the Status of Refuges and the 1969 OAU Convention on Specific Problems of Refugees in Africa. Both the UN and OAU Convention definitions of a refugee have been incorporated into domestic legislation.2 During the policy-making and legislative process that went into drawing up the Refugees Act of 1998, it was accepted that refugee camps or reception centres should be set up only in situations of mass influx, and in terms of specific regulations and minimum standards, and, in this chapter, we argue that the Refugees Act reflects this policy. However, in

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1999, before the Refugees Act had been implemented, the South African Department of Home Affairs (the DHA or the Department) proposed the establishment of reception centres for detaining asylum-seekers in South Africa while their applications for asylum were being considered. Notice was given to Parliament in January 2001 of certain amendments to the Refugees Act that would allow for the establishment of reception centres. However, the amendments have yet to be tabled.3 In the meantime, there is continuing pressure within certain sectors of the Department to push for reception centres, and debate on the matter is likely to continue.4 In this chapter, we examine the rationale behind the proposal to establish reception centres. The stated objectives are to enhance the administrative efficiency of the DHA and to discourage ‘economic migrants’ from ‘abusing’ the protection offered to asylum-seekers. We argue that the establishment of such centres (and supporting legislation and regulations) will be subject to constitutional challenge on the basis of the rights to freedom of movement and freedom from arbitrary detention contained in Chapter 2 (the Bill of Rights) in the Constitution of the Republic of South Africa, Act No. 108 of 1996. The establishment of reception centres will clearly encroach on the rights of asylum-seekers, a view also expressed in the ‘Discussion Document on the Proposed Reception Centres for Asylumseekers in South Africa’ prepared by the UNHCR’s office in Pretoria.5 Moreover, the limitation of the above two rights will have the effect of limiting other rights, such as access to legal representation. We evaluate the proposed amendments (and the policy that drives them) in terms of section 36 of the Constitution, which insists that any limitation of a right must be reasonable and justifiable in an open and democratic society. The elements of the proposed policy will be interrogated within the framework of the limitations clause, with the conclusion that these amendments cannot – and should not – survive constitutional challenge, particularly in a context of a purposive interpretation of the Bill of Rights.

Rationale for Reception Centres: Administrative Convenience and Deterrence The DHA first raised the issue of reception centres with the UNHCR in 1999, and plans to set up reception centres for asylum-seekers were confirmed by the then Deputy Minister for Home Affairs, Lindiwe Sisulu, in an open hearing before the Parliamentary Portfolio Committee for Home Affairs in 2000.6 The proposed reception centres for asylum-seekers in South Africa differ from refugee camps elsewhere in the continent in that they are intended to be administrative tools to process asylum applications, and are geared towards receiving individual applications, as opposed to a mass influx of refugees. The Department argued that reception centres would provide an effective

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administrative and management tool to implement the status determination procedures prescribed in the Refugees Act, and enable it to reach the set target of determining an asylum application within three months. It also argued that these policies would curb illegal migration to South Africa and reduce the ‘pull factor’ to the country. The reception centres proposal endorses a general policy of detaining all asylum-seekers once they have entered South Africa and pending the outcome of their applications for asylum. Detention therefore will not be limited to the specific instances provided for under the Refugees Act (which we discuss below).

Impact of Detention of Asylum-seekers in Terms of Constitutional Rights South Africa’s Constitution provides for freedom and security of the person in section 12(1) and for freedom of movement and residence in section 21(1). South Africa’s extensive ratification of various international laws and the serious consideration that its courts give to the laws of other countries necessarily require that the constitutionality of detaining asylum-seekers be considered in the light of international and comparative law as well. What is detention? It includes confinement within a cell, house arrest and confinement within a particular place, such as a hotel, school, church or detention centre.7 The UNHCR considers detention to be ‘confinement within a narrowly bounded or restricted location, including prisons, closed camps, detention facilities or airport transit zones, where freedom of movement is substantially curtailed, and where the only opportunity to leave this limited area is to leave the territory’.8 States have argued that restricting irregular arrivals – those without proper documentation – to a transit facility at an airport does not amount to detention, and as such does not affect the person’s freedom from arbitrary arrest and detention. For instance, France has argued before the European Commission on Human Rights that the restriction of an irregular arrival in the international zone of an airport must reach a certain level of physical constraint in order to qualify as ‘deprivation of liberty’ under Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.9 This type of argument is anticipated in the UNHCR ‘Discussion Document on the Proposed Reception Centres for Asylum-seekers in South Africa’. Here the UNHCR states that under no circumstances should such reception centres become detention centres.10 It seems in line with the general policy of the UNHCR that detention of asylum-seekers is inherently undesirable. If asylum-seekers are received in conditions of detention, this must be based on the personal facts relating to an individual applicant, must be necessary and must be for the shortest possible period.11 The recognition of the principle of freedom from arbitrary detention vis-à-vis asylum seekers has been evident in refugee law

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from the beginning of the post-Second World War era. For example, the 1951 Conference of Plenipotentiaries responsible for the acceptance of the 1951 Convention discussed the possibility of detention ‘for a few days’ for purposes of verifying identity only.12 The Department’s proposed reception scheme diverges substantially from the recommendations of the UNHCR. According to the DHA proposal, all asylum-seekers were required to be transported to and accommodated in the reception centres pending the outcome of their application for asylum. The set target for processing an asylum application, both in the Regulations to the Act and in the Department’s proposal, was 180 days. However, the reality is that many applications take years to finalise.13 The blanket application of the detention policy and its duration will in all probability result in reception centres effectively becoming detention centres.

Rights of Asylum-seekers and Refugees in Law Refugees Act In terms of the Refugees Act, an asylum-seeker coming to South Africa has the right to enter the territory and apply for asylum.14 In addition, an asylum-seeker coming to South Africa may not be expelled, extradited or returned to any other country, or: be subject to any similar measure, if as a result of such refusal, expulsion, extradition, return or other measure, such a person is compelled to return to or remain in a country where: a) he or she may be subject to persecution on account of his or her race, religion, nationality, political opinion or membership of a particular social group; (and in line with the extended refugee definition, where) (b) his or her life, physical safety or freedom would be threatened on account of external aggression, occupation, foreign domination or events seriously disturbing or disrupting public order in either part or the whole of that country.15

An asylum-seeker applying for asylum in South Africa has the right to have his or her application for asylum received in terms of the Refugees Act.16 The procedural rights of such an asylum-seeker include: assistance in completing the application for asylum;17 the issuing of an asylum-seeker permit;18 the right to have the application for asylum decided on in a lawful, reasonable and procedurally fair fashion, including written reasons for a rejected application;19 the right to appeal an adverse decision;20 and confidentiality in applying for asylum.21

The Constitution The Bill of Rights is clear and unambiguous on whether asylum-seekers benefit from its provisions. Most of the rights in the Bill of Rights have

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universal application in the sense that they are for the benefit of ‘everyone’. (Some rights are restricted in their application to a particular class of beneficiary, such as ‘citizens’ or ‘children’.22) The Constitution applies as much to asylum-seekers as to any person in South Africa, unless they are clearly excluded.23 Asylum-seekers therefore enjoy the same rights as South African citizens to dignity, life, freedom and security, privacy, religion, expression, assembly, association, freedom of movement, administrative justice and access to information and courts.24 Furthermore, asylum-seekers in South Africa have the same rights as any other person with regard to a safe environment, property, access to adequate housing, health care services, sufficient food and water, social security, education, language and culture, individually or within a community.25 Asylum-seeking children have additional rights equal to that of any child in South Africa, including rights to family care, basic nutrition, shelter, basic health care and the right not to be detained except as a measure of last resort.26 The Refugees Act and section 39 of the Constitution fortify the rights of asylum-seekers in South Africa by referring to international human rights law and refugee instruments, including the 1951 UN Convention and 1967 Protocol Relating to the Status of Refugees (hereafter 1951 UN Convention), the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (hereafter 1969 OAU Convention), the 1948 Universal Declaration of Human Rights and other relevant conventions to which South Africa is or becomes a party.27 Alongside the right not to be detained arbitrarily,28 asylum-seekers in detention have the right not to be detained in conditions that amount to cruel, inhuman or degrading treatment.29 Asylum-seeking children should not be detained.30 Both state and privately run detention facilities are subject to these rights. Further, asylum-seekers in detention have the right of access to legal counsel,31 the right to communicate with UNHCR,32 the right to notify their family of the fact and place of detention,33 the right to be visited by, and to correspond with, members of their family,34 the right to communicate with the outside world,35 the right to medical care,36 and the right to humane conditions of detention that take into account their special status as asylum-seekers; in other words, their physical safety may not be endangered and they may not be held with common criminals.37 Section 12(1) of South Africa’s Constitution provides for freedom and security of the person, and section 21(1) for freedom of movement and residence. These rights must be interpreted with due consideration of international law, and any limitation of these rights must be properly justified.

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Evaluation of the Proposal in Terms of the Constitution Detention In terms of South Africa’s Constitution, detention must at least be authorised by law of general application. The law must further demonstrate a rational connection between the limitation and some objectively determinable purpose. If the rational connection is found to be lacking, the substantive aspect of the protection of freedom would be denied.38 In addition to a rational connection, the substantive aspect of the protection of freedom demands that the reason or cause for the deprivation of freedom be just. The meaning of just cause depends on the facts of the particular case. The proposed reception centres can be evaluated in terms of the constitutional prohibition against arbitrary detention and the guarantee of freedom of movement vis-à-vis the limitation clause – section 36 of the Constitution. Section 36 provides that the rights in the Bill of Rights may be limited ‘only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all the relevant factors’, including ‘the nature of the right; the importance and purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose’. Thus, the first question is whether the proposed reception scheme is supported in law. The second issue concerns the reasonableness and justifiability of the proposed reception centres in terms of the limitation clause. The third issue relates to the burden on the state to justify the potential effect of the proposed reception centres. Detention of asylum-seekers in reception centres must be in terms of the law. The normal requirements of rational connection to an objective purpose that is just and administered by an independent judicial authority with fair procedures apply, as well as the requirement of predictability. The European Court of Human Rights found that ‘prescribed by law’ means that the law must be ‘adequately accessible’ and ‘formulated with sufficient precision to enable [one] to regulate his conduct’.39 The rule of law finds expression here. It is an important principle of the rule of law that rules and laws are stated in a clear and accessible manner.40 It should be possible to adapt one’s conduct to the law. Where the infringing provision is legislative, as is the proposal of reception centres, the provision must be predictable or foreseeable. The question here is whether the Refugees Act and Regulations provide for the detention of all asylum-seekers in reception centres pending a decision on their legal status (the terms of the proposed reception scheme) in accordance with the above requirements. Sections 22(6) and 23 of the Refugees Act make clear provision for the detention of asylum-seekers: (1) who contravene a condition endorsed on

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their asylum-seeker permit, for instance, applicants who engage in employment or study, or leave the country without permission, and have their permits withdrawn by the Minister of Home Affairs;41 (2) whose applications have been found to be manifestly unfounded, abusive or fraudulent, and who have their permits withdrawn by the Minister of Home Affairs;42 (3) whose applications for asylum have been rejected and whose permits have been withdrawn by the Minister of Home Affairs;43 or (4) who are or who become ineligible for asylum due to the exclusion or cessation clauses (for instance, the applicant is a war criminal or an applicant who, having lost the protection of his or her country, voluntarily re-avails him- or herself of the protection of that country), and have their permits withdrawn by the Minister of Home Affairs.44 The Minister is authorised to order the arrest and detention of such asylum seekers ‘pending the finalisation of the application for asylum’. The latter includes the waiting period for a decision on review or appeal. In terms of section 29, detention is subject to ‘judicial review [and] compulsory judicial review after every 30 days of detention by a judge of the High Court’. Sections 22, 23 and 29 referred to above clearly provide for detention measures. They also provide grounds for justifying such detention, as well as procedural safeguards regarding review by an independent judicial authority. Detention in terms of these sections appears lawful (although we do not suggest that further scrutiny relating to the appropriateness of the legislated grounds within the context of EXCOM Conclusion 44 is not required). However, detention according to these sections is limited to certain classes of asylum-seeker or individuals. An analysis of sections 22, 23 and 29 shows no support for detention as a norm for all asylum-seekers when they first arrive in South Africa. The DHA has argued that the following could be read as legislative support for the proposed reception centres: (1) the present influx of asylum-seekers into South Africa falls into the category of ‘asylum-seekers … who enter the Republic on a large scale’, with the Refugees Act providing for reception centres in such cases;45 and (2) reception centres for asylum seekers constitute an administrative arrangement and a managerial tool to put in place the refugee status determination procedure outlined by the Act.

Detention in Case of Mass Influx of Refugees Section 35 provides for the reception and accommodation of asylumseekers in the event of mass influx of refugees. Section 35(1) allows the Minister of Home Affairs to make a status determination relating to a group of asylum-seekers.46 Section 35(2) reads: ‘The Minister may, after consultation with the UNHCR representative and the Premier of the province concerned, designate areas, centres or places for the temporary reception and asylum-seekers or refugees who entered the Republic on a large scale, pending the regulation of their status in the Republic.’ The

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question is whether this subsection authorises the Minister to set up reception centres for all asylum-seekers when they first enter South Africa. The UNHCR in its ‘Discussion Document on the Proposed Reception Centres for Asylum-seekers in South Africa’ makes it clear that, in its view, the Refugees Act makes provision for reception centres only in relation to a mass refugee influx.47 Defining a mass influx of refugees therefore becomes necessary, as such a determination has practical consequences. The concept ‘on a large scale’, or, as the heading to section 35 indicates, ‘in the event of mass influx’, is also used in Article 3(2) of the United Nations General Assembly Declaration on Territorial Asylum.48 ‘Mass influx’ refers to a sudden and disproportionate influx of asylum-seekers created by a common cause, and can include those fleeing genocide or state-sponsored violence (prior to an election, for example). This is a very specific scenario that requires appropriate solutions.49 A mass influx poses major problems concerning accommodation, food and health. It can also endanger public order, national security and international peace and security. South Africa is not presently experiencing a mass influx of asylumseekers and refugees. The UNHCR has noted that ‘it does not appear that the situation currently prevailing in South Africa is one envisaged in the [Refugees] Act; thus such centres may not be lawfully established under its provisions’.50 The reference in section 35 to ‘any specific category or group of asylum-seekers’ supports this conclusion. The concept ‘mass influx’ has a specific and narrow meaning, following the rule of interpretation concerning limitations on fundamental rights. Section 35 is subject to the same rule; that is, a sound reading of this section limits its meaning in favour of the fundamental rights of individuals. Section 35’s reception scheme is thus only relevant in the specific instance of a mass influx of asylum-seekers and refugees. It is hard to imagine a narrow interpretation of an exception to or limitation on a fundamental right becoming the policy and legal norm of a constitutional state such as South Africa. It is equally difficult to conclude that section 35 provides legislative authority to support the detention of asylum-seekers in general.

Administrative and Managerial Convenience The question here is whether establishing reception centres for asylumseekers as an ‘administrative and managerial’ arrangement (to put in place the refugee status determination procedure outlined by the Refugees Act) passes constitutional muster. In other words, we ask whether subsidiary legislation or departmental regulations that could provide for reception centres as a means to realise some of the objects of the Act can be said to be ‘prescribed by law’.51 The Constitutional Court has noted that the ‘law of general application’ requirement in section 36 of the Constitution is similar to the ‘prescribed by

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law’ requirement.52 It is certain that subordinate legislation and administrative regulations can qualify as ‘laws of general application’. However, these rules should be clear and accessible (as is the case with original legislation), and an asylum-seeker coming to South Africa must be able to predict the consequences of detention in a reception centre upon lodging an application.53 The power to formulate subordinate legislation and administrative regulations must in addition be authorised by the Act. In terms of section 22 of the Refugees Act, an applicant for asylum must be issued with an asylum-seeker permit that regulates the applicant’s presence and sojourn in South Africa, ‘subject to any conditions, determined by the Standing Committee, which are not in conflict with the Constitution or international law and are endorsed by the Refugee Reception Officer on the permit’. The Standing Committee ‘may formulate and implement procedures for the granting of asylum’.54 The question is whether these sections provide the authority to prescribe detention of all asylum-seekers in reception centres upon arrival in South Africa. The Constitutional Court has held that broad discretionary powers given in legislation must be accompanied by legislative guidelines as to the exercise of those powers, or a legislative requirement that relevant delegated legislation relating to the broad powers be properly enacted by a competent authority.55 It is not enough to say that discretionary powers that could limit fundamental rights may be exercised in a manner consistent with the Constitution. A lack of such guidelines, in the context of state administration, prevents the administrator and affected person from knowing their duties and rights, and therefore prevents the affected person from seeking redress from an adverse decision. The omission of guidelines introduces an element of arbitrariness to the exercise of discretionary powers that is inconsistent with constitutional protection of freedom and security of the person. Section 22 must thus be read in conjunction with section 38, which provides that the Minister of Home Affairs may make regulations relating to the conditions of sojourn of asylum-seekers in South Africa. Such regulations must provide for the proposed reception scheme. The present lack of such provisions indicates that there exists no legal basis in the Act or Regulations for the proposed reception scheme. In addition, the Minister of Home Affairs does not enjoy carte blanche in making regulations. Moreover, an empowering Act usually provides for the publication of requirements; for instance, that they be tabled in Parliament and published in the Government Gazette. Except for the regulations relating to a large-scale influx of asylum-seekers, the Refugees Act does not provide for a proper oversight mechanism regarding the making of regulations. Nevertheless, the Minister’s powers should ordinarily be guided by accepted policy forged in Parliament and the Cabinet. The only policy document that provides guidelines on asylum matters in South Africa is the 1998 White Paper

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on Refugees.56 This noted that a change to the previous system should address the backlog and delays in applications as well as the ‘abuse [of the refugee system] by migrants coming to South Africa for non-refugee related reasons’.57 Other than referring to reception centres in the context of mass influx of refugees, there is no provision for the detention of asylum-seekers in reception centres in the policy document.58 The obvious inference from this lack of policy and legislation is that the proposed reception regime enjoys no official support. Certainly the White Paper task team saw a speedy and fair process as the answer to the abuse of the asylum system. One of the principles of legislative interpretation – that the meaning of the provision can be established ex contrariis, which means that the inclusion of certain items implies the intention to exclude others – further supports the conclusion above.59 In the present context, the inclusion of clear provisions relating to certain instances of detention implies the exclusion of other forms of detention. If the legislature intended to authorise the detention of asylum-seekers upon their first arrival in South Africa as a norm, it would have said so in clear terms, as in the instance of detaining asylum-seekers in terms of sections 23, 29 and 35. Detention of asylum-seekers in terms of law further means that the reasons for detention must be clear. In case of judicial muster on the issue of detention of asylum-seekers, the reason for detention should also be accessible. At the very least, then, detention cannot be based on a wide and general policy that is read into the Refugees Act or international law. However, the test itself is not very strict. In De Lange v. Smuts,60 the Constitutional Court found that the requirement was satisfied if the means or limitation furthered some objectively determinable purpose. The difficulty in determining the purpose of the proposed detention of asylumseekers without a policy statement from the Department (apart from the stated reasons of administrative convenience and deterrence) is obvious. Pragmatically speaking, the underlying reason is no doubt to reduce South Africa’s ‘pull factor’ as a refugee-receiving country. EXCOM Conclusion 44 provides some context in which to determine what constitutes a just purpose for the detention of asylum-seekers. It expresses the view that detention of asylum-seekers may only be resorted to in order to: ‘verify identity; determine the elements on which the claim to refugee status or asylum is based; deal with cases where refugees or asylum-seekers have destroyed their travel and/or identity documents, or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum; or protect national security or public order’. The UNHCR Guidelines clearly state that ‘[d]etention of asylum seekers which is applied for purposes other those listed above, for example, as part of a policy to deter future asylum seekers, or to dissuade those who have commenced their claims from pursuing them, is contrary to the norms of refugee law’.61 Deterrence is the rationale for the detention of asylum-

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seekers in many countries. Whether deterrence represents a just purpose depends to some extent on the impact of the restricting measures on the target group. Deterring those who might need asylum in the future could be tantamount to refoulement, while detention of asylum-seekers in order to deter illegal migrants and spurious asylum applications could have disproportionate effects. This issue is investigated more closely in the context of the proportionality test below. In line with constitutional permissibility, detention in terms of the Refugees Act must be ‘reasonable and justifiable’ – that is, subject to judicial review. Detention in terms of the Act for more than thirty days is subject to immediate and compulsory judicial review by a judge of the High Court (as is every additional thirty days of detention).62 This is in line with the UNHCR Guidelines and with the UN Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment.63 Supposing there is legislative authority for detaining asylum-seekers in reception centres upon arrival in South Africa as the norm, then this measure (which would be tantamount to detention under section 23) would be subject to judicial review. Equally, in the event of policy being adopted regarding the proposed reception scheme and the promulgation of related regulations, judicial overview of detention cannot be excluded. In terms of the Constitution ‘[e]veryone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court’.64 Furthermore, freedom from arbitrary detention inherently means judicial control over detention. However, this process is usually protracted and prohibitively expensive. Therefore, an accessible review procedure – as is the case with present provisions relating to the detention of asylum-seekers – will be necessary to give full effect to the rights of asylum-seekers according to the Constitution and international law.65 It means that every individual detained under the proposed reception regime will have the potential right to approach a court, and also that automatic detention of asylum-seekers should be tempered by an automatic review procedure before an independent court.

The Limitation Clause Supposing that legal support for the reception regime is found, the next question is whether the proposal for reception centres for asylum-seekers would survive constitutional analysis in terms of the constitutional provision relating to reasonableness and justifiability. This depends on the relationship between the impact of detention and the importance of the purpose and effect of the reception regime. The measures of detention should go no further than necessary to achieve the purpose of detention: namely, deterrence and administrative convenience.66 More severe detention measures must serve a compelling public purpose. The principle of proportionality should exist between the purpose and the effect of the measures.

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Freedom from arbitrary detention is a fundamental human right and, in the view of the UNHCR, detention of asylum-seekers is inherently undesirable: ‘This is even more so in the case of vulnerable groups such as single women, children, unaccompanied minors and those with special medical or psychological needs.’67 Freedom of movement is also a fundamental human right, but arguably applies to a lesser extent to foreigners. The Constitution reserves the rights to enter, remain in and reside anywhere in South Africa to citizens, as opposed to everyone.68 The 1951 UN Convention provides for the freedom of movement for refugees in their country of asylum ‘subject to any regulations applicable to aliens generally in the same circumstances’.69 The Department’s proposals would require that all asylum-seekers be transported to and accommodated in reception centres until the outcome of their applications for asylum. No asylum-seeker will be allowed to leave the premises of the reception centres without permission from the Department. Even when an asylum-seeker receives permission, he or she will only be allowed outside the reception centres for a specified period. If an asylumseeker is caught outside the reception centre without proper authorisation, that person is to be apprehended and brought back to the centre. In other words, it will be impossible to apply for asylum outside a reception centre. The nature and extent of the potential limitation on asylum-seekers’ freedom from arbitrary detention and freedom of movement are thus extensive. This is particularly evident in the case of freedom from arbitrary detention, and even more so in the case of especially vulnerable groups. It means that, in order to survive constitutional muster, the importance and purpose of the reception centres must satisfy a strict test, similar to a compelling public interest. It also means that the policy concerning reception centres must differentiate between categories of asylum-seekers, and provide special measures to ameliorate the serious impact detention will have on vulnerable groups. The rationale driving the proposed reception regime must be sufficiently compelling to balance against the severe impact it will have. When asked to determine whether a particular limitation was reasonable in terms of the law which can be ‘demonstrably justified in a free and democratic society’, the Canadian Supreme Court emphasised the importance of the function of courts: namely, to conduct an enquiry in the light of commitment to uphold the rights and freedoms set out in the Charter.70 In that case, the Canadian government argued that it could not afford to hold individual hearings for each applicant for asylum. However, the Court did not consider whether the procedures for the adjudication of refugee claims – the limiting provision – were reasonable. Instead, it asked whether it was reasonable to deprive the applicants of the right to life, liberty and security of the person by adopting a system for the adjudication of refugee status claims that did not accord with the principles of fundamental justice. In this light, the Court had considerable doubt as to

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whether the type of utilitarian consideration brought forward by the Minister for Employment and Immigration constituted a justification for the limitation on the rights set out in the Charter: ‘Certainly the guarantees of the Charter would be illusory if they could be ignored because it was administratively convenient to do so.’ The Court recognised that following the limiting procedure could save time and money, but such arguments, in the Court’s view, ‘miss the point of the exercise under s. 1. The principles of natural justice and procedural fairness which have long been espoused by our courts, and the constitutional entrenchment of the principles of fundamental justice in s. 7, implicitly recognise that a balance of administrative convenience does not over-ride the need to adhere to these principles.’71 The Court found that the basis of the justification for the limitation of the right to freedom and security of person needed to be more compelling than administrative convenience and economic efficiency. The limitation clause in the Constitution follows the wording of the Canadian limitation clause regarding the reasonableness of the limitation in an open and democratic society. Article 1 of the Canadian Charter of Rights and Freedoms is also a general limitation clause, like South Africa’s, but unlike, for instance, the German Basic Law or the Constitution of the United States. South African constitutional jurisprudence is thus likely to borrow from Canadian jurisprudence when applying the limitation clause. If this line of argument were to be pursued, the administrative reason for detaining all asylum seekers in reception centres would be insufficient to warrant a reasonable and justifiable limitation. The purpose of institutionalising reception centres for asylum-seekers, namely to deter spurious asylum applications and address the large influx of economic or illegal migrants that abuse the asylum system, must be seen in its specific context. The White Paper on International Migration quotes figures (although it is understood that these are not necessarily reliable)72 of ‘between three to five million undocumented migrants in South Africa’.73 In 2004 the UNHCR estimated that South Africa, in addition to the large numbers of undocumented migrants who enter the country, receives monthly some 1,000 new asylum applications. Then South Africa hosted some 85,000 asylum-seekers, of whom 27,000 were considered eligible for refugee status since the introduction of status determination procedures in 1994.74 The total asylum applications for 2005 was 28,000. The number of people applying for asylum in South Africa rose sharply in the first three months of 2006, with 38 per cent of the 18,800 individuals coming from Zimbabwe, according to the latest government figures.75 The issue is whether the extensive limitation of asylum-seekers’ fundamental rights posed by detention is proportionate to the effect these measures will have in terms of deterring spurious applicants. Based roughly on the above-mentioned figures, it is suggested that even if the reception centres deter spurious applications, this effect will hardly touch on the much larger problem of undocumented migrants. The ratio of failed

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asylum-seekers (and even more so spurious asylum applications) to undocumented migrants is substantially small. In other words, taking action on spurious applications in order to combat undocumented migrants is therefore not only futile, but also disproportionate to the effect that the proposed limiting measure of reception centres will have on bona fide asylum-seekers. The deterrence of spurious asylum applications could be better achieved through alternative and less restrictive means. Instead of focusing primarily on asylum procedures, measures to address the problem of undocumented migration need to be considered with a view to overhauling the entire international migration policy of South Africa in order to make migration management more effective. Whether the proposed reception centres represent a solution that is ‘reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom’ depends on factual evidence before the court. The Department, in order to justify the reception centres, will be required to present sociological or statistical data on the impact of the limitations in relation to the purpose. As Currie and De Waal argue, ‘appropriate evidence must often be led to justify a limitation of a right in accordance with the criteria laid down in s. 36 [of the Constitution].’76 Depending on the applicant before the court, the Department will have to provide evidence relating to that specific asylum-seeker’s circumstances. In the case where an individual forms part of an especially vulnerable group, the Department will also be required to indicate the specific rationale for detention given that person’s status (for instance, single women, unaccompanied minors or trauma victims). Unless the Department can provide specific data relating the impact to the purpose, the detention of asylum-seekers as a norm will be struck down. In the light of the dubious statistics available concerning undocumented migrants, it is most probable that this exercise will prove too onerous to be practical.

Conclusion Placing refugees in reception centres where freedom of movement is restricted would constitute considerable stress in addition to the trauma associated with whatever caused refugees to flee their homes in the first place (serious human rights abuses, civil war or other results of a failed state), the flight itself (travelling overland through Africa can be harsh and dangerous) and the loss of the native land, with the resulting physical and psychological dislocation. We must not lose sight of the fact that loss of freedom of movement restricts access to many other fundamental human rights. South Africa has committed itself to protecting refugees both within its borders and at its frontiers. We are bound by the 1951 UN Convention relating to the Status of Refugees. Under Article 35, South Africa has undertaken to cooperate

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with the UNHCR. This includes supporting the conclusions reached by EXCOM (of which South Africa is a member) and the recommendations made by the UNHCR regarding the detention of asylum-seekers. And the government of South Africa and the Department of Home Affairs are, of course, further bound by the Constitution of the Republic of South Africa.77 The rationale underlying the Department’s proposal to establish reception centres for asylum-seekers during the status determination process is ostensibly to address both the inefficient status determination procedure and the abuse of the asylum system by economic migrants. The Refugees Act of 1998 was implemented on 1 April 2000, and officials have been appointed and trained in the new status determination procedures. Regulations that prohibit employment and study for at least the first six months from the date of application for asylum – designed to reduce the number of abusive applications for asylum – came into force at the same time. The Department and the UNHCR cooperated in a process to deal with the backlog of asylum applications during the period September 2000 to December 2001, and both the new determination system and the backlog project must be evaluated before new and far-reaching policies are introduced. One of the primary objectives of the proposed reception regime – to address the problem of undocumented migrants – is misplaced. Statistics on spurious asylum applications in South Africa indicate that in fact they constitute only a very small part of the overall ‘problem’ of undocumented migration. The thorny problems of corruption and undocumented migrants are issues that need to be dealt with separately by the Department. The recent Immigration Act is perhaps a more appropriate instrument for tackling these, as is other legislation dealing with criminal behaviour such as fraud. Internationally, reception centres for refugees have often been established in response to racist and xenophobic tendencies within certain communities, and the existence of such centres in turn often fuels such tendencies. In camp scenarios elsewhere in Africa, the local perception is sometimes that the encamped refugees receive better food, education, health care and so on from the government and the international community, with resulting resentment, even violence. Again, as experience elsewhere has shown, the proposed reception centres in South Africa might well be the ‘thin edge of the wedge’, with these centres becoming permanent refugee camps. If the Department proceeds with these proposals, or the Constitutional Court accepts on review the arguments put forward in this chapter, the myriad human rights, social and budgetary problems presented by such camps may be avoided.

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Notes 1. Mozambicans were not recognised as refugees by the apartheid government, and people who fled the civil war there were deported. However, during the late 1980s, the ‘homeland’ governments of Gazankulu and Lebowa were permitted to host refugees as ‘visiting relatives’. These refugees were housed in refugee camps in the homelands bordering Mozambique. 2. The Refugees Act, 130 of 1998, implemented on 1 April 2000. 3. The amendments also sought to entrench both a safe third country policy and an internal flight alternative, and to limit the scope of the principle of non-refoulement. 4. Department of Home Affairs, which is responsible for refugee affairs, indicated that it is considering a feasibility study in regard to a proposal on a transit facility and location of asylum seekers, Department of Home Affairs, Strategic Plan 2005/06–2009/10 (Pretoria, 2005), 42. 5. UNHCR, ‘Discussion Document on the Proposed Reception Centres for Asylumseekers in South Africa’, unpublished, 1999. 6. See Cape Times, 19 April 2000. 7. S. Trechsel, ‘Liberty and Security of Persons’ in The European System for the Protection of Human Rights, ed. R. Macdonald, F. Matscher and H. Petzold (Dordrecht, 1993), 277–86. 8. Guideline 1, UNHCR, Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum-seekers (Geneva, 1999). See also de Lange v. Smuts 1998 (7) BCLR 779 (CC), paragraph 28. 9. Amuur v. France No. 19776/92, 10 January 1995. 10. Paragraph 9(j). 11. Detention of Asylum-Seekers and Refugees: the Framework, the Problem and Recommended Practice, EXCOM Standing Committee, 15th meeting, 1999 [EC/49/SC/crp.13], paragraph 26. 12. See generally UN docs. A/CONF.2 SR.13, 13–15; SR.14, 4, 10–11; SR.35, 11–13, 15–16, 19. 13. See Chapter 5. 14. Sections 2 and 21 of the Refugees Act 130 of 1998. 15. Section 2. 16. Section 21(2)(a). 17. Section 21(2)(2). 18. Section 22(1). 19. Section 24. 20. Section 25(1) and 26. 22. See chapter 3 of I. Currie and J. De Waal, The Bill of Rights Handbook, 5th edn. (Johannesburg, 2005). See also Baloro v. University of Bophuthatswana 1995 (8) BCLR 1018 (B) at 1066, which, in terms of the Interim Constitution (1993), held that ‘person’ applies to ‘aliens’ – the terminology of the Aliens Control Act, 1991. 23. See Lawyers for Human Rights v. Minister of Home Affairs 2003 (8) BCLR 891 (T) at 897C. 24. Respectively, sections 10, 11, 12, 14, 15, 16, 17, 18, 21, 32, 33 and 34 of the South African Constitution. Asylum-seekers’ right to work and study must furthermore be evaluated on a case-by-case basis, as the Supreme Court of Appeal has ruled that a blanket denial of these rights could infringe the right to dignity of those applicants who rely on employment as their only reasonable means for support; see Minister of Home Affairs v. Watchenuka and Another 2004 (2) BCLR 120 (SCA) at paragraph 32. 25. Respectively, sections 24, 25, 26, 27, 29, 30 and 31 of the South African Constitution. Some of these rights (such as the right to social security) are dependent on residence status within the country.

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26. Section 28 of the South African Constitution. 27. Section 6 of the Refugees Act. 28. Detention is considered arbitrary if it is not authorised by law or in accordance with the law: article 9(1) of the 1966 International Covenant on Civil and Political Rights. It is also required that detention should be reviewed as to its legality and necessity, according to the standards of what is reasonable and necessary in a democratic society. See G.S. Goodwin-Gill, The Refugee in International Law, 2nd edn. (Oxford, 1996), p. 248. 29. Section 12 of the South African Constitution and Article 5 of the Universal Declaration of Human Rights. 30. Article 37 of the 1989 UN Convention on the Rights of the Child; see also Chapter 9 of this collection and Centre for Child Law & Another v. The Minister of Home Affairs and other respondents, Case No 22866/04 in the High Court of South Africa. 31. Each detainee must be informed promptly of the right to a lawyer of his or her choice, and to avail him- or herself of this right (UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, 13). The detainee has the right to communicate with and be visited by counsel without delay. The detainee and his or her counsel must have adequate time and facilities for the preparation of their case concerning the lawfulness of detention (UN Body of Principles, 17 and 18). 32. EXCOM Conclusions 44(g) and 22 III. 33. UN Body of Principles, 16; 1955 UN Standard Minimum Rules for the Treatment of Prisoners (UN Standard Minimum Rules, 92). 34. UN Body of Principles, 19; UN Standard Minimum Rules, 92. 35. UN Body of Principles, 19. 36. UN Body of Principles, 24, 25 and 26. 37. EXCOM Conclusion 44(f). 38. De Lange v. Smuts 1998 (7) BCLR 779 (CC), paragraph 23. 39. Sunday Times v. United Kingdom (1979) 2 EHRR 245, paragraph 49. 40. The rule of law is a foundational value of the South African Constitution. See section 1C(c), Pharmaceutical Manufacturers Association of SA; In re: Ex parte Application of the President of RSA 2000 (3) BCLR 241 (CC) paragraph 40. 41. Section 23 read with section 22(6)(a). Regulation 7(1)(e) prescribes that the asylumseeker permit notifies the applicant ‘that failure to comply with the condition of appearing personally at a designated Refugee Reception Office will result in the withdrawal of the asylum seeker permit in terms of section 22(6) of the Act and subject the applicant to detention pending a decision on the asylum application’. However, the prescribed form of an asylum-seeker permit in Annexure 3 of the Regulations contains no such notice and instead refers to section 37(b) of the Act, which criminalises failure to comply with the conditions ‘subject to which any permit has been issued’. In the absence of the clear notice it is doubtful whether regulation 4(1)(d), which provides for a Refugee Reception Officer to ‘verbally notify the applicant that the permit may be withdrawn upon failure to comply with the conditions of the permit, subjecting the applicant to detention’, satisfies the foreseeability requirement. If the asylum-seeker permit contains the only written reference to a general authority to detain asylum-seekers pending the outcome of their status determination request, it is certain that such an administrative measure will fall short of the substantive meaning of ‘prescribed by law’, as there will be no legal foundation for such a measure. See also Imanyara v. Attorney General, Judgment of the High Court of Kenya, 20 December 1994, Civil Suit No. 1208 of 1994 (unreported), 121; Seif Shariff Hamad v. The Regional Commissioner of North Region, Unguja, Judgment of the High Court of Zanzibar (Tanzania) 24 March

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42. 43. 44. 45.

46. 47.

48.

49.

50. 51. 52.

53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70.

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1995, Civil Appeal No. 32 of 94 (unreported), 122; and Longwe v. International Hotels, Judgment of the High Court of Zambia [1993], 4 LRC 221, 232. Section 23 read with section 22(6)(b). Section 23 read with section 22(6)(c). Section 23 read with section 22(6)(d). See also sections 4 and 5. The DHA, aware that legislative amendment was necessary, proposed removing the words ‘mass influx’ from section 35 (as this limited authority to receive asylumseekers in reception centres), but the UNHCR intervened on behalf of this and other problematic proposed amendments, which therefore never reached Parliament. The power to invoke includes the power to revoke such a declaration. Section 35. For the purposes of this chapter, the concepts of ‘mass influx’ and ‘refugees who entered on a large scale’ are treated as identical. Both terms are used in section 35. ‘[F]or over-riding reasons of national security or in order to safeguard the population, as in the case of mass influx of persons.’ Adopted by General Resolution 2312 (XXII) of December 14, 1967; in the committee by 24 votes to 20, with 40 abstentions. Goodwin-Gill, 1998, The Refugee in International Law, 141. See EXCOM, 32nd session, EC/SC/16. 3 June 1981, ‘Report on the Meeting of the Expert Group on Temporary Refuge in Situations of Large-Scale Influx’, SubCommittee of the Whole on International Protection, Geneva, 21–24 April 1981, paragraph 26. UNHCR, ‘Discussion Document on the Proposed Reception Centres’, paragraph 7. See Committee for the Commonwealth of Canada v. Canada (1991) 77 DLR (4th) 385. President of the Republic of South Africa v. Hugo 1997 (4) SA 1 (CC), paragraph 102. Rules affecting fundamental rights should be accessible, precise and of general application. Dawood, Shalabi and Thomas v. Minister of Home Affairs 2000 (8) BCLR 837 (CC), paragraph 47. Section 11(a) of the Refugees Act. Dawood, Shalabi and Thomas v. Minister of Home Affairs 2000 (8) BCLR 837 (CC), paragraphs 47 and 54. Refugee White Paper, Government Gazette, No. 18988, 19 June 1998. Ibid., paragraph 3.2.1. Ibid, paragraph 5.2. A related principle is inclusio unius est exclusio alterius, that the inclusion of one is the exclusion of another. See De Beer v. Estate Smith 1919 CPD 259. De Lange v. Smuts (supra notes 8 and 38), paragraph 23. UNHCR, Guidelines, guideline 3. Section 29 of the Refugees Act. UNHCR, Guidelines, Introduction paragraph 5; UN Body of Principles, GA res. 43/173, 9 December 1988, Principle 4. Section 34 of the Constitution. Section 29 of the Refugees Act. S v. Makwanyane 1995 (6) BCLR 665 (CC) paragraph 94; 1995 (3) SA 391 (CC). UNHCR Guidelines, Introduction paragraph 1. Section 21(3) of the Constitution. Article 26. Singh v. Minister of Employment and Immigration [1985] 1 S.C.R. 177. See also Kabuika v. Minister of Home Affairs 1997(4) SA 341 (C), where the court first considered the threat of non-refoulement before considering whether or not the applicant was entitled to rights set out in the administrative justice provisions in the Constitution. Singh v. M.E.I, p.218–19.

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72. These figures have been withdrawn by the Human Science Research Council, which conducted the research upon which they were initially based. 73. Paragraph 4.3.2. 74. UNHCR/DHA Statistics, May 2004. 75. See http://www.unhcr.org/cgi-bin/texis/vtx/news/opendoc.htm?tbl=NEWS&id= 446dd6dc4. The rise in the number of asylum-seekers comes as the Department of Home Affairs is stepping up efforts to tackle a backlog of earlier applications from over 100,000 people – some years old. About 30,000 individuals have received official recognition as refugees. During the first quarter of 2006, officials in the Department approved 112 applications and rejected 1,144 applications. These cases were all earlier requests for asylum. From January to March 2006, 18,800 nationals from forty-three developing countries lodged their applications for asylum at five different Refugee Reception Offices. In addition to the usual countries of origin such as Somalia, the Democratic Republic of the Congo (DRC) and Zimbabwe, new trends emerged with requests from people from Malawi, Pakistan, Bangladesh, India, China, United Republic of Tanzania and Ethiopia. Zimbabweans were by far the largest number of applicants in every reception office, with 7,211 requests for refugee status in the period, or 38 per cent. The next largest groups were from Malawi, with 2,000 applications, and DRC, with 1,668 applications. The rest of the top ten countries of origin were Ethiopia (1,154), Bangladesh (976), United Republic of Tanzania (917), Somalia (903), Pakistan (542), Congo (457) and India (446). The applications were overwhelmingly from men, estimated at 76 per cent of all the applications made in the first quarter. Some 21 per cent were from women and only three per cent for accompanied children. This information suggests that the Department is faced with complex asylum issues and that it recognises that there is a strong need to opt for new strategies to ensure an efficient and effective management of refugee services. 76. Currie and De Waal, Ibid, The Bill of Rights, 167. 77. Section 8(1).

9 PROTECTING THE MOST VULNERABLE: USING THE EXISTING POLICY FRAMEWORK TO STRENGTHEN PROTECTION FOR REFUGEE CHILDREN Victoria Mayer, Jacob van Garderen, Jeff Handmaker and Lee Anne de la Hunt

 Introduction Globally, children are said to form the largest demographic age group amongst refugees. Despite the lack of comprehensive data, it is estimated that children represent half of the world’s forcibly displaced population.1 South Africa has been fortunate in recent years not to witness the largescale refugee movements faced in many other countries on the continent. Consequently, the number of child applicants has been rather small, but not insignificant. Since the introduction of asylum determination procedures in 1994 up until June 2005, the South African Department of Home Affairs had reportedly received a total of 6,495 ‘child-related’ applications for refugee status; these cases include both children who are with their parents or guardians and unaccompanied or separated children who would make an application with a legal representation. More than half of these child applicants come from Democratic Republic of Congo, Angola and Somalia. Out of these, 30 per cent of Somali children have been recognised, 31 per cent of Angolan children and a further 34 per cent of Zaire/DRC children applications have been approved.2 There is currently no way of knowing

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how many child applicants arrive unaccompanied, as official statistics do not reflect this distinction, although there are some indicators, as we discuss in the first part of this chapter. Most of the South African laws and policies concerning children are not exclusive to South African citizens and indeed extend to all children in this country, including refugee children.3 In theory, this legal framework pertaining to children in South Africa creates a satisfactory basis for the protection of refugee children and the furtherance of their socio-economic rights. However, in reality, these laws are disconnected from each other and are in many respects disengaged from the specific realities they face. In 2001 the Department of Social Development established their policy on the treatment of unaccompanied foreign children. Unfortunately, it was only after a series of court cases in 2004 that this policy was implemented in a limited capacity. The policy is geared specifically to the interests of foreign children, especially unaccompanied children. It aims to ensure that all foreign children are ensured a certain level of protection and a mechanism that will enable a child with a refugee claim first to be recognised and secondly to be assisted in formalising their stay in South Africa. This policy was duplicated in the Department of Home Affairs, the Department of Justice and the SAPS and provides a good example of the need for policies to cut across the responsibilities of various governmental departments, recognising the important role of civil society organisations and promoting the social and economic development of foreign children and then, by proxy, refugee children. This chapter examines the law relating to children, considering South African domestic law, international law and comparative laws and policies of other refugee-receiving countries, which, through specific or implicit reference, extends to refugee children as well. Further, we consider the impact of these policies in practice, asking the questions: Are they adequate? Are they being enforced? How do other countries ensure the protection of refugee children? In order to obtain an overview of the current treatment of refugee children in South Africa, interviews were conducted in South Africa with a range of organisations and other service providers who engage with refugee children at various levels. Those interviewed included representatives of the Departments of Home Affairs and Education, the Border Police, Commissioners of Child Welfare, human rights and advocacy groups,4 welfare organisations,5 refugee forums and organisations,6 the United Nations High Commission for Refugees, and other non-governmental organisations.7 For comparative purposes, a small number of additional interviews were conducted with service providers in the Netherlands. Finally, we briefly address a disturbing, global trend in contemporary migration, notably the trafficking of children for the sex trade. In this chapter, we draw a distinction between unaccompanied minors who apply for asylum, and children who are accompanied by their parents.

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Particular emphasis is given to unaccompanied minors as in the case of accompanied minors they are technically ‘protected’ via their parents or guardians as legal dependants. Unaccompanied minors, on the other hand, receive no such protection and are therefore particularly vulnerable, both in a legal sense (status-related issues) and in their access to socio-economic rights. This chapter further lays out the progress in asserting the rights of refugee children and the challenge faced by all stakeholders when policy is not enough.

Applications for Asylum from Unaccompanied or Separated Children One of the initial practical problems faced by unaccompanied children and officials alike is a lack of information. There are no current systems in the Department of Home Affairs to keep specific statistics on unaccompanied or separated children, or to deal specifically with these claims. Further, there are no systems in place that proactively seek to identify unaccompanied or separated children, in order to ensure that they are receiving appropriate assistance. The Department of Home Affairs has, however, indicated that unaccompanied children remain a small percentage of the overall applications relating to children. Officials observed that applications by unaccompanied children were very rare, and that the majority of children are usually accompanied by an adult and thus processed as a dependant’s claim. However, this departmental response must be assessed in the context of the massive backlog of applications that are still pending finalisation, and the many applications that have yet to be received and processed, as discussed in Chapter 5 of this collection. Further the trend has been for the Department to refuse to accept applications from children who do not have either a guardian or a legal representative. This informal policy decision has resulted in many probable unaccompanied children being forced to find an adult to accompany them to the Refugee Reception Office, thereby rendering them accompanied. Service organisations have reported growing numbers of separated child refugees being found on the streets and in shelters and havens. It appears that many cases of unaccompanied and separated children do not engage with the Refugee Reception Offices, but are identified and monitored by organisations working with children and refugees generally. Given the inconsistency in statistical data and the increasing number of asylum applications in general across the country, it is likely that the numbers of child refugees currently in the country are much higher than the figures provided, and that there are many more unaccompanied and separated minors than are acknowledged by the Department of Home Affairs. It appears that unaccompanied or separated children remain largely undetected by immigration officials and welfare authorities. There are

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reports of refugee children appearing at night shelters and other services or facilities for the homeless. A further problem is that they are often not immediately identifiable as refugee children and are often assumed to be undocumented migrants, who are then treated as adults within the Immigration Act, resulting in prompt detention and deportation unless the child is able to clearly state their refugee claim to officials. In 2004 this practice was stopped through lengthy court challenges, which now require the intervention of a social workers and a Children’s Court Enquiry before any foreign child is removed from South Africa.

South Africa’s Responsibilities towards Refugee Children in International Law Children constitute a substantial number of the world refugee population due to the fact that they are often the victims of human rights abuses specifically targeted at them. The 1996 Graca Machel Report, commissioned by the UN, describes the effects of armed conflict on children, emphasising children’s particular vulnerability when they are forced to flee from armed conflicts: During the flight from dangers of conflict, families and children continue to be exposed to multiple physical dangers. They are threatened by sudden attacks, shelling, snipers and landmines, and must often walk for days with only limited quantities of water and food. Under such circumstances, children become acutely undernourished and prone to illness, and they are the first to die. Girls in flight are even more vulnerable than usual to sexual abuse. Children forced to flee on their own to ensure their survival are also at heightened risk.8

Since 1994 South Africa has ratified a number of international treaties impacting on the rights and welfare of refugee children, thus incorporating these provisions into South Africa’s national law. Further, section 39(1)(b) of South Africa’s Constitution obliges any court, tribunal or forum to consider international law when interpreting the Bill of Rights. Refugee children are recognised in international law as benefiting from special protection.9 This has been implicitly recognised by South Africa’s Constitution (which does not distinguish between children on grounds of nationality). The Children’s Charter of South Africa10 is more explicit, recommending that: ‘children who are orphaned abandoned, homeless, exiled or refugees have a right to be placed in safe and secure families’. However, the reality of the treatment of refugee children falls far short of this ideal, ranging from allegations of unlawful detention to restrictions or denial of access to basic social services such as schools and medical care.11 Unaccompanied refugee children benefit from an extra category of rights, which South Africa, as a signatory to the Refugee Conventions, UN and OAU Conventions on the Rights of the Child and other international documents, is obliged to ensure.12 What is particularly notable about these

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documents is their focus on the principle of the best interests of the child, which has become the international standard of protection for children, reflected in numerous national instruments in countries around the world, including South Africa. While ideally the application of this principle should result in special administrative procedures, the guarantees contained in these documents are nevertheless enforceable in the South African context in present procedures and institutions.

Protection of Refugee Children in South Africa’s Domestic Law As discussed earlier in this collection, since 1994 the government of South Africa has struggled to define a workable refugee protection policy. The Refugees Act 1998 (which came into force in April 2000) extended certain rights specifically to children. However, there remain a number of contentious issues and some confusion amongst officials and legal practitioners regarding the Act’s implementation, not to mention great frustration amongst refugee applicants and recognised claimants. As the following section illustrates, the current legal framework in South Africa provides extensive protection for refugee children, which can and ought to be recognised by those involved with refugees and the asylum determination procedure, and translated into a cohesive, workable policy.

South African Constitution13 Chapter 2 of the South African Constitution provides for a comprehensive Bill of Rights that applies to both adults and children. The rights contained in the Bill of Rights, apart from a few exceptions such as citizenship, voting rights, trade, occupation and profession rights, are applicable to every person in the country. The Constitution is, therefore, an important source of legal protection for refugee children. A unique feature of the Constitution is that it also includes justiciable socio-economic rights. Whereas the state is generally obliged to realise the socio-economic rights progressively within its available resources, the onus on the state to realise the socio-economic rights of children (basic nutrition, basic health care, basic education, etc.) is much stronger. As vulnerable members of our society, children are given special prominence in the Constitution. Section 28 specifically guarantees certain basic rights to every child, including non-South African children. Some of the most relevant are a child’s right to a name and nationality, to family or parental care (or to appropriate alternative care), to basic nutrition, shelter, basic health care and social services, to protection from maltreatment, abuse, neglect or degradation, to protection from exploitative labour, not to be required or permitted to perform work inappropriate for a child at that age or that place the child’s well-being at risk, not to be detained except as

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a measure of last resort, in such case only for the shortest appropriate time and kept separately from adults, to have a legal counsellor assigned by the state and not to be used directly in armed conflict and to be protected in times of armed conflict. Further, endorsing the international law standard, section 28(2) states that ‘a child’s best interests are of paramount importance in every matter concerning the child’.

Refugees Act 1998 and Accompanied Child Asylum-seekers Generally an accompanied child asylum-seeker’s status is dependent on his or her parent’s status. When the principal applicant is granted refugee status, the dependent child’s status follows automatically. The relationship between the principal applicant and the child must be proved by documentary evidence or, in its absence, by affidavits or sworn statements to that effect.14 Dependent children are required to attend the hearing with the Refugee Status Determination Officer. A child’s status as a dependant of a recognised refugee may change when his or her parents’ status is withdrawn or suspended, or the child’s status as a dependant ceases to exist. In such cases they are nevertheless permitted to remain in the country and independently apply for recognition of their refugee status. Indeed, accompanied children are always entitled to make their own separate asylum application.15 The Act requires the guardian or parent to assist the dependent child in the application process.16

Refugees Act 1998 and Unaccompanied Children The Refugees Act allows for children to bring asylum applications. This right was confirmed in the case of Centre for Child Law v. The Minister of Home Affairs and Others,17 in which two unaccompanied Rwandan children were initially barred from claiming asylum because of their status as children. Section 32 of the Act provides for the protection and care of unaccompanied and separated children. Any child who appears to be ‘in need of care, in terms of the Child Care Act,18 and qualifying for refugee status’19 must be referred to the Children’s Court in the district in which he or she was found. Governed by the Child Care Act, the Children’s Court procedure is a vital part of the protection of refugee children and should be empowered to make orders for the protection, care and accommodation of an unaccompanied child.

Child Care Act The Child Care Act is a primary source of protection for all children in need of care. Section 32 of the Refugees Act prescribes that the Child Care Act

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is to apply in cases where refugee and unaccompanied children are found to be in need of care. For foreign children, who include refugee children, their status within the parameters of the Child Care Act was confirmed in the recent case of the Centre for Child Law and Ellis No. v. Minister of Home Affairs and Others (CCL v. MoHA).20 The Act provides that ‘a child may have legal representation at any stage of a proceeding under this Act’,21 and the Court is empowered under this Act to exercise the following important measures: ‘removal of a child to a place of safety on an order of the court22 (or pending an enquiry); bringing a child before a Children’s Court; and placing a child in foster care, a children’s home or a school of industries. The Child Care Act will soon be replaced by the recently adopted Children’s Act.23 Although earlier drafts of the Bill provided protection to unaccompanied minors as children in need of care, all references to foreign children were removed from the final draft Bill before it was adopted. The reason for the removal seems to originate from the Department of Social Development’s mistaken view that all matters relating to refugees fall solely under the mandate of Home Affairs.24

Social Assistance Act The Social Assistance Act25 is the primary law regulating the payment of social assistance, mainly in the form of government grants to people living with disabilities, elderly people and children who are incapable of supporting themselves. With the exception of foster care grants, social assistance is limited to South African citizens. However, the government has been obliged by the courts to extend the payments of grants to permanent residents and refugees. In Khosa v. The Minister of Social Development26 the Constitutional Court ruled that the Social Assistance Act’s exclusion of permanent residents from social grants, in this case former Mozambican refugees, was inconsistent with the Constitution. The Court found that by basing its exclusion solely on citizenship this provision in the Social Assistance Act amounted to unfair discrimination and severely impacted on the right to dignity. In the matter of Bishogo v. The Minister of Social Development,27 the government refused to pay a foster care grant to a Congolese refugee who provided foster care for three young Congolese, because she was unable to provide a copy of a green South African identity document. In terms of a socalled ‘consent order’ of the Court, the Department of Social Development agreed that it would pay social relief in the form of distress grants for a period of three months while the necessary changes were made to the social assistance system to accept refugee documentation as proof of identity. At the time of writing, the computer system still only accepted thirteen-digit identity numbers issued to citizens and permanent residents and the legislation still required a green South African identity document to access the grants.

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Further, at the time of writing there were two cases pending before the courts in South Africa addressing the lack of refugees’ access to social assistance. In Scalabrini Centre of Cape Town v. Minister of Social Development, the Social Assistance Act’s exclusion of refugees from obtaining disability grants was challenged as being inconsistent with the Constitution. In the matter of Access v. Minister of Social Development,28 a coalition of nongovernmental organisations challenged the constitutionality of requiring possession of a green South African identity document as a prerequisite to accessing Social Grants. The Amicus Curiae29 application that was entered by Lawyers for Human Rights in this matter argued that the regulations to the Social Assistance Act were inconsistent with the Constitution in so far as they did not allow access to foster care grants to refugees. The Social Assistance Act30 allows for financial assistance in the form of the foster care grant or a place of safety grant to refugee children whose parents either are untraceable, have passed away or are deemed unfit to look after their children. The Department of Social Development pays this grant to a place of safety/foster-parent who is taking care of the child in need of care; these parents are screened and monitored by the relevant social worker. The Children’s Court can make an order for the temporary place of safety placement to be formalised and made into a foster placement. In terms of Section 4A any person shall be entitled to a foster-child grant if he or she is the foster-parent, and the foster-parents and the child are resident in the Republic and comply with the prescribed conditions. To qualify for this grant the application must be accompanied by a thirteendigit identity document, birth certificate of the child. Foster-children who are not citizens must provide an official document from the country of origin.31 This provision has proved challenging to many refugee fosterparents, who either do not have the necessary documentation or do not meet the basic material requirements established by the social welfare organisation that is dealing with their case. A refugee child may be adopted, keeping in mind UNHCR Guidelines, which recommend a waiting period and extensive tracing of relevant family members.32 Adoption is often seen as a last resort, and as it does not include financial contributions in the form of grants it is often not pursued by the more indigent communities, be they refugee or South African.

Immigration Act 13 of 2002 The Immigration Act replaced the Aliens Control Act and aims to regulate and facilitate the exit and entry of non-South Africans. This legislation does not mention children as specific entities and has subsequently led to children being treated as adults within the immigration framework. Following the judgment in CCL v. MoHA, policies have been drafted that assert the court decision that foreign children automatically fall under the Child Care Act. This judgment has provided much needed clarity for all

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government officials as to the status of foreign children, thereby confirming the government’s responsibility for their care and protection.

Detention and Deportation Section 29 of the Refugees Act restricts the authorities from detaining any person for a longer period that thirty days without the prescribed approval of the court. Echoing the Constitution, section 29(2) of the Refugees Act requires that a child refugee may only be detained ‘as a measure of last resort, for the shortest appropriate period of time, and treated in a manner and kept in conditions that take account of the child’s age’. In the case of CCL v. MoHA the Court ruled that the current detention and deportation practices of the Department of Home Affairs were unlawful and prescribed guidelines for the treatment of unaccompanied foreign children held in detention. First, the Court ruled that all unaccompanied foreign children found in need of care should be dealt with in accordance with the provisions of the Child Care Act. This includes asylum-seeker and refugee children and means that such children must be brought before a Children’s Court for an inquiry into their circumstances, when they are found in need of care. Secondly, if during a Children’s Court inquiry it appears that a child has a refugee claim, that child should be assisted with their claim in terms of section 32 of the Refugees Act. Thirdly, the government of South Africa is directly responsible to provide for the socio-economic and education needs of unaccompanied foreign children presently in South Africa: this includes the needs of asylum-seeker and refugee children. Fourthly, unaccompanied foreign children may no longer be detained at the Lindela Repatriation Centre. And, finally, unaccompanied foreign children must be provided with legal representation at the state’s expense. The Court also ordered the relevant government departments to formulate a detailed, joint policy providing for the way in which unaccompanied foreign children should be dealt with in South Africa. In response to the judgment, the South African Police Services and the Department of Home Affairs issued policy directives setting out the procedures to be followed when encountering foreign unaccompanied children.

Legal Representation The South African Constitution emphasises the child’s right to legal representation. Section 28(1)(h) states that every child has the right ‘to have a legal practitioner assigned to the child by the state, and at state’s expense, in civil proceedings affecting the child, if substantial injustice would otherwise result’. To prove substantial injustice in the Children’s Court is often difficult. In this regard the Child Care Amendment Act and the judgment of the CCL v. MoHA assert the provision of legal representation in the Children’s Court if it is in the child’s best interest.

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Perhaps more crucially, child asylum-seekers have the right to legal representation at a non-adversarial hearing before the Refugee Status Determination Officer. The representative may present witnesses and other evidence and may make a statement on the evidence presented at the end of the status determination hearing.

Return, Repatriation and Removal In terms of the Refugees Act33 a child refugee can be subject to return and repatriation in the following circumstances: 1) An application for refugee status is rejected, and all appeal and review procedures have been exhausted; 2) The circumstances in his or her country of origin have changed; 3) A child voluntarily wishes to return to his or her country of origin [voluntary repatriation of children is normally facilitated by the UNHCR]; or 4) A child’s parents are subject to an order of removal from the country, and the child has been afforded an opportunity to bring an application for refugee status, but has failed to do so.34

The involuntary removal of a child may be ordered by the Minister of Home Affairs, provided that due regard has been given section 33 of the Constitution and international law.35 With regard to refugee children, UNHCR Guidelines state that the best interests of a child must always be the primary consideration when a decision for the return and removal of the child is taken. In addition, a child may not be returned unless, prior to the return: (1) a parent has been located in the country of origin who can take care of the child, and the parent is informed of all the details of the return; or (2) a relative, other adult caretaker, government agency or child-care agency has agreed, and is able, to provide immediate protection and care upon arrival.

Refugee Reception Offices Generally, there appears to be confusion in the treatment of asylum applications brought by children. Certain cases discussed by nongovernmental staff involve incidents where unaccompanied children are told by departmental officials that they cannot obtain assistance because their application needs to be linked to that of their parents. In other cases, officials at the Refugee Reception Office indicate that an application in the name of a minor can only be made once the age of sixteen is reached. In other cases, the age of qualification was said to be eighteen. The officials of the Cape Town Refugee Reception Office indicated that they attempted to deal more quickly with applications that involved children. However, other offices did not reflect any such policy. Organisations that offer advice to those seeking asylum in Johannesburg

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indicated that there appeared to be no such system operating there. Across the five Refugee Reception Offices in South Africa there seems to be a variation in both attitudes and procedures with regard to allowing access to unaccompanied children. In most cases these discrepancies are due to a lack of capacity and information on the role of the Refugee Reception Offices and the responsibility of Home Affairs with regard to these children, Those working in the area of refugee assistance report that many unaccompanied children are included as ‘family members’ on the applications brought by other families. The refugee community appear to be unaware that unaccompanied children may make applications in their own name, and include them as family to protect their interests. This may also be a response to the lack of assistance provided by the Refugee Reception Office to unaccompanied minors in some cases. The majority of the concerns around the treatment of children relate to the institutional capacity of the Department of Home Affairs to deal with applications for asylum, the growing backlog of asylum-seekers wanting to make application, and the long delays in finalising an application. Added to the limited staff capacity at Refugee Reception Offices are reports of bribery and corruption. DHA Passport Control 1 of 2004 ‘Treatment of Unaccompanied Foreign Children’ was introduced following court orders demanding clarity in procedures. This policy provides more specifically for reporting of cases to the Department of Social Development and provides no guidelines for the status determination procedure itself. The reality is a system where special and expedited treatment for refugee children has no place.

Children’s Court It appears that most refugee children are referred to the Children’s Court through a social worker. There were no reports of children being referred to the court by a Refugee Reception Office. Following the introduction of the Refugees Act there has been very slow acceptance of refugee children into the Children’s Courts. In the Western Cape the acceptance has been substantially higher than in the other eight provinces. In Gauteng access to the Courts has been severely limited. This limitation can be attributed, on the one hand to the lack of awareness by social workers and relevant government officials, of first, who a refugee or asylum-seeker is, what their rights are and the referral to the Child Care Act and thereby the Courts that exists in the Refugees Act, and on the other hand, a general lack of knowledge and interpretation by Commissioners of Child Welfare. Many Commissioners are unaware of the Refugees Act; further, many believe incorrectly that all foreign children, including refugees, fall within the jurisdiction of the Department of Home Affairs and have no place within the Child Care Act.

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In the case of Centre for Child Law and Ellis N.O. v. Child Commissioner of Krugersdorp,36 the matter was clarified in the High Court and resulted in the issuance of an instruction to all Commissioners of Child Welfare in South Africa of the provisions for the treatment of foreign children. The case asserted the jurisdiction of the Children’s Court to hold enquiries for any foreign child found to be in need of care in terms of Section 14(4) of the Child Care Act. For the first time it was asserted that foreign children were to be treated as children first and as foreigners second. For those Commissioners of Child Welfare who are aware of the provisions of the Refugees Act, many are unaware that they are authorised to appoint a legal representative to assist an asylum-seeker with their application for refugee status. Asylum-seekers appearing in Children’s Court appear to be referred to children’s homes. The Commissioners are aware of the benefit of placing them in a foster context, that coincides with their culture and religion, but state that it is difficult to find appropriate foster-parents who qualify in this regard.

Foster Placements and Social Assistance Foster-parents are selected by a statutory social welfare organisation to look after a child deemed in need of care. Foster care is one of many options available to social workers and the Children’s Courts. Difficulties arise in trying to keep refugee children within their communities and at the same time maintaining a standard for foster-parents. The standards are policy-based and can vary between organisations, the most fundamental points being: (1) the family is eager to look after the child, (2) the family has the necessary material provisions to look after the child i.e. room, income, food etc., (3) each adult can only look after six children at a time (4) the foster-parent has documentation, specifically a thirteen-digit ID number, and (5) the placement is in the best interest of the child regarding culture and familiarity. Refugee families struggle to meet the requirements and are often not considered to be suitable foster-parents. Refugees receive no financial support from the government and are therefore often living in precarious financial situations, with issues such as accommodation often an uncertain luxury. Although refugees are often eager foster-parents, in part for the financial support that is given in the form of a foster care or place of safety grant, Commissioners of Child Welfare are not willing to allow a placement if the grant is providing the only stable financial income for the family. Understandably, the concerns are of ‘commodifying’ children to very poor and vulnerable communities. Refugees are not entitled to the child care grant, which can be awarded for each child under the age of nine to their parents. Unfortunately, the grant is a third of the amount of the foster care grant, which makes the latter a more financially sought-after option. Hence, there has been reluctance on the part of the Children’s Court or social welfare organisations to ease the requirements for the grant.

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Comparative Practice: Guidelines for Legal Protection Notwithstanding the volume of international human rights protection, guidelines and principles, the current treatment of and provision of services for child asylum-seekers and refugees in South Africa are disjointed, characterised by inadequate legal protection and limited service provision. Where services are provided, these are usually not well coordinated. In addition, human rights organisations spoken to have reported a range of cases where minors are subjected to illegal detention,37 and denial of access to basic social services and health care,38 and refused access to education.39 During the course of our research, and in the forming of recommendations that were contained in the original report, we drew upon a great deal of useful comparative data in the Netherlands and other countries, pertaining both to the legal framework for refugee children and concrete programmes developed for their protection (especially unaccompanied minors). It is clear to us that the socio-economic differences between wealthier countries such as the Netherlands and South Africa place some limitations on the relevance of comparative data and one should not blindly ‘lift’ a model from one country to the other, without proper appreciation of the context in which they are placed. Nevertheless, certain measures introduced, and especially the approach adopted by the authorities and civil society organisations in other host countries to protect and promote the rights of refugee children, could, in the South African context, potentially be of much comparative benefit. What is very clear to us is that the state’s failure to protect children before, during and after the asylum determination procedure places these children at considerable risk.

Legal Status The characteristics of the legal status accorded to asylum-seekers vary from country to country. In The Netherlands, for example, unaccompanied minors who apply for asylum (AMAs)40 are granted a special form of status giving them temporary residence in the country, on the basis that there is no one in the Netherlands to look after them. The AMA’s application for political asylum is considered on the basis of 1951 Convention status or, alternatively, on non-Convention humanitarian grounds (e.g. in terms of Article 3 of the European Convention on Human Rights). Determination of Article 3 status is in some respects comparable to the grounds on which one is recognised in South Africa as a refugee under the 1969 OAU Refugee Convention.

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Age and Capacity As Bhabha and Young maintain, article 1 of the 1989 UN Convention on the Rights of the Child stipulates that a child is ‘anyone below the age of 18, unless under the law applicable to the child, the age of majority is attained earlier’. However, those between the age of eighteen and twenty-one: also deserve special consideration for purposes of asylum adjudication, as they may lack the maturity to understand the proceedings in which they have been placed. This is particularly true of individuals whose asylum claims are based on traumatic events that happened while they were under 18, as such applicants may well continue to express a child’s view of the events that provoked their flight.41

Identification of unaccompanied refugee children is a crucial challenge for states. As Russell maintains: ‘It is only when a child has been identified that their needs can be met and rights guaranteed.’42 In accordance with international guidelines, in the Netherlands, age and capacity issues are very important. From the point of view of eligibility, for AMAs to secure temporary status, it must be established that the applicant is younger than eighteen years. If the government questions this, then an investigation into their age is conducted, through a simple medical test.43 In the UK, provided an immigration officer makes an initial identification, the unaccompanied refugee child is referred to a ‘Children’s Panel’, which acts as a ‘liaison’ in the early stages of the procedure. In the Netherlands (see below), a child is referred to De Opbouw organisation, which provides a guardian/social worker for the child, specially trained in assisting refugee children. The USA, on the other hand, does not statutorily require the appointment of an individual to act as a guardian and/or representative, though new ‘Guidelines’ at least provide the possibility for adults other than the legal representative to participate in the adjudication process: ‘it is generally in the best interest of the child to allow a trusted adult to attend an asylum interview with the child asylum applicant. A trusted adult is a person who may bridge the gap between the child’s culture and the U.S. asylum system.’44

Access to Legal Assistance As mentioned earlier, the South African Constitution emphasises the child’s right to legal representation and the Children’s Court is empowered to appoint a legal representative, although in practice this right is not often realised. This appalling situation is unfortunately not unique. In the USA, where legal representation is not provided at the cost of the State in connection with asylum claims, it is reported that ‘the majority of children receive minimal legal information’.45 This situation can be contrasted with the Netherlands, where legal advice is automatically provided to all AMAs, in connection with their application for political asylum. In the event that

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an applicant receives a negative decision, they are legally entitled to appeal and are provided with a lawyer free of charge. Even where there is a right of access to legal representation for asylum seekers in Britain46 and in the USA,47 the availability of competent legal advice tends to be limited. The Netherlands fares better. The Dutch bar association has, in association with an independent legal training institute,48 approved a certified course. This training is complemented by legal help desks, operated by NGOs such as the Dutch Refugee Council and Amnesty International, providing expert advice for lawyers. While not providing any ‘guarantee’ of quality legal representation, it is widely believed that such a course greatly enhances the quality of legal representation. The importance of legal representation for children cannot be overestimated. As Bhabha and Young put it: ‘The role of [legal] counsel is particularly crucial for a child claiming asylum. Most children lack the experience and sophistication to grasp the complexity and personal implications of an asylum application.’49 In certain countries (such as Canada, the United Kingdom and the Netherlands), legal representation is provided at state expense, though it has already been mentioned that access to competent legal representation tends to be limited. Children in the USA fare worse. They are not even eligible for state-funded representation, and therefore are frequently not represented. Finally, in advising child asylum-seekers through what is a particularly hostile procedure, legal practitioners in other countries have recognised the importance of both providing an additional, trusted adult for unaccompanied child asylum-seekers and ensuring that decisions are made quickly. Child refugee applications should be prioritised, though not at the expense of making a good decision.

Determination Procedure While there have been some recent studies addressing general concerns in the refugee determination procedure in South Africa,50 none of these studies has focused on the particular consequences of the government’s policy towards underage asylum-seekers. Consequently, there is only limited guidance in South Africa on how to handle applications from unaccompanied minors.51 This, unfortunately, appears to be an all too common trend. Despite various guidelines and UNHCR EXCOM Conclusions on refugee children, referred to earlier, the interests of children seeking asylum have been sadly neglected both by the national policies of receiving countries and by international jurisprudence.52 There have been some valuable critical studies done in some countries, however. Russell has extensively researched the treatment of unaccompanied refugee children in the United Kingdom, also on behalf of Amnesty International, UK,53 while Bhabha and Young have researched the impact of the asylum procedure on refugee children in the United States.

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These studies should not be seen as ‘country-specific’ instances. Indeed, despite a number of major policy differences, both authors conclude that failure to lessen the negative impacts of an otherwise unforgiving asylum determination procedure can have particularly deleterious consequences for this particularly vulnerable group.54

‘Best Interests of the Child’ Principle In much of the literature written on the subject, the 1989 UN Convention on the Rights of the Child features strongly. This Convention provides for an expanded category of rights of refugee children, characterised by the principle that decisions affecting children ought to be taken in the best interests of the child. This important principle is extended beyond care and protection, but also to special protection in the asylum procedure, recognising that there are a considerable number of critical issues in respect of refugee children not specifically provided for in the international refugee conventions. Such issues range from the interviewing of applicants through to the decision-making process, which (it is advocated) ought to be particularly sensitive to child refugee applications. Despite some countries’ attempts to circumvent their responsibilities under the 1989 Convention, whether through non-ratification (USA) or reservation (UK),55 countries are nevertheless obliged in good faith’ not to deliberately act against its provisions. South Africa, in contrast, issued no such limitation when it ratified the 1989 Convention, thereby establishing a stronger commitment to ensuring the protection of refugee children.

Guidelines Some countries have issued special guidelines on refugee children in the asylum determination procedure, the Canadian government being one of the first in 1996. The UNHCR followed with its ‘Guidelines on Policies and Procedures in Dealing with Unaccompanied Minors Seeking Asylum’ the following year. The USA issued guidelines in 1998, although some have alleged that they fall dangerously short of what is needed in a number of crucial areas.56

Interview: Recognising the ‘Child’s Voice’ In addition to recognising the ‘best interests’ of the child, Bhabha and Young maintain that the ‘child’s voice’ ought also to be given due consideration during the course of the interview. More to the point, children ought not only to have the ‘right to express those views freely’, but ‘the views of the child [ought to be given] due weight in accordance with the age and maturity of the child.’57 However, the same authors warn that a child’s right to express their views might be questioned in two main circumstances, namely: cultural traditions,

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which hold that ‘children are not considered to have views of their own distinct from their families’, and ‘the special trauma of recounting in a strange environment experiences which have led to being an asylum seeker.’58 Russell maintains that article 12 of the 1989 Convention implicitly requires that: ‘State parties have a positive duty to help a child capable of forming views to express them and not merely a passive obligation not to interfere in a right to freedom of expression.’59 He reinforces this claim by asserting that a guardian rarely assists child applicants in establishing their claim, and furthermore legal representatives are restricted in making representations on behalf of their clients. Secondly, children are rarely given a choice in whether or not to be interviewed. Russell argues they should be permitted to make the decision themselves, albeit an informed one.

Special Forms of Persecution Asylum determination procedures have a tendency to be adult-centred, focusing on forms of persecution that it is believed only adults would suffer. Adjudicators are reported to not always recognise that children might individually fear persecution, because of a (mis)perception that authorities in their country of origin would not take them seriously. Children in some cases might not only experience a well-founded fear of persecution similarly to adults,60 but they may be individually targeted as well. For example, the persecuting authorities may use them in order to intimidate their parents.61 In other circumstances, children may fear a child-specific claim, for example female genital mutilation (FGM), still practised in some countries, and the recruitment of child soldiers. Furthermore, deprivation of a child’s human rights ‘may [also] give rise to a well-founded fear of persecution when applied to children’, for example separation from family or restrictions on attending school.62

Measuring Harm While there is not, as yet, a universally agreed definition of persecution, it is often the case that ‘persecution requires a finding of serious harm’.63 Certain violations are identified as constituting persecution, ranging from threats to life and freedom to discriminatory practices, but ultimately it ought to be recognised that ‘persecution is a relative term’.64 Actions that to an adult, might not ordinarily be recognised as persecution could, in the case of a child, have different consequences. Two big reasons for this are a child’s ‘heightened sensitivity’ (psychologically and otherwise) and ‘heightened dependence’ on adults. Both factors render children particularly vulnerable to persecution,65 not only by governments, but by non-state actors as well, since governments are often less able or willing to extend protection to children.66

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Assessing ‘Persecuted Groups’ Officials’ scepticism over the credibility of a child refugee applicant’s claim has also extended to the grounds of persecution. For example, authorities have shown themselves to be reluctant to recognise that children are capable of forming political opinions, which can be ‘determined by assessing a child’s maturity, intelligence and ability to articulate thoughts’.67 In many respects, however, children will be able to ground their asylum claims simply on the basis of being a member of their own family (‘membership of a particular social group’). Russell significantly notes that the 1951 Refugee Convention does not require that one was engaged in political activity in order to establish the possibility of political persecution. This is particular relevant for child applicants.

Standard of Proof: Objective Evidence vs. Child’s Statement and Interview Finally, there is the standard of proof, which is again assessed with regard to a child applicant’s mental development and maturity. Bhabha and Young recommend that three main elements should be acknowledged in determining the validity of their claim: the ‘best interests of the child’ principle ought to be a primary consideration; the child’s right to express their views; and a child’s ability to establish a claim different from that of a relative. An important issue to recognise here is that there ought to be adequate objective data (e.g. of country conditions, etc.), so that a child’s claim does not rest too heavily on their (subjective) interview, raising a likely credibility challenge. Russell notes that decision-makers rarely account for the fact that the applicant is an unaccompanied child when making this determination.68 He further argues that a ‘liberal application’ of establishing burden of proof ought to be accorded to child applicants.69 In South Africa, the Department of Home Affairs and the Refugee Appeal Board have adopted the legal standard of proof in asylum applications at whether there is a ‘real risk’ that the applicant will be persecuted. This standard is less generous than the US standard of ‘reasonable possibility of persecution’ and the UK standard of ‘reasonable degree of likelihood of persecution’.

Detention/Containment Human rights organisations have for some years now been investigating the conditions of detention that refugees find themselves under in South Africa.70 Their conclusions have shown that children whose parents’ application for political asylum has been rejected and those generally

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suspected of being illegally in the country (prohibited persons) are almost routinely being incarcerated in police cells and prisons and at the Lindela Repatriation Centre in Krugersdorp. The United Nations Working Group on Arbitrary Detention visited South Africa in September 2005 and found a number of documented asylum-seekers detained in contravention of the Refugees Act.71 The detention of asylum-seekers and children at Lindela was confirmed in a recent case heard by the Johannesburg High Court.72 Children are usually detained with their mothers, but in the case of Lindela are in areas that can be accessed by adult males, in violation of the UN Standard Minimum Rules of Detention.73 Their detention also appears to be in violation of section 28(g) of South Africa’s Constitution that children ‘not be detained except as a measure of last resort’. The detention of refugee children ‘has one of the severest impacts on unaccompanied children’.74 With often limited justification, and in some instances even defying expert opinion, authorities have detained children simply because they believe them to be adults. It cannot be denied that this determination is in some cases difficult to make. Unaccompanied children have been known to possess false passports indicating them as older than eighteen years, in order to avoid rejection by airline authorities. However, even in circumstances where immigration officers recognise the illegitimacy of such documentation, there have been instances where such persons, children, were incarcerated until it was finally established that they were underage. Refugee applicants in the Netherlands are rarely detained in secure facilities, provided it is determined that their claim is not manifestly unfounded, and the same goes for unaccompanied minors applying for asylum. However, until a positive decision is accorded to an applicant, many applicants are obliged to reside in government-run reception centres. Until an AMA is accorded temporary status, they too reside in these centres, which can leave them vulnerable. One particularly disturbing incident concerned the disappearance of AMA girls from reception centres, and who later were found to have been taken to houses where they were forced into prostitution.75 However, once an AMA is accorded temporary status, they are released into the care of De Opbouw, as mentioned above. Similar (albeit more limited) policies exist in Canada, Denmark and Britain.76 As in the UK, in the USA children are regularly detained by the authorities, in circumstances that violate international law and domestic (US) constitutional law. This is despite a number of court cases and pressure by respected international human rights organisations.77 Russell has provided three main arguments against the detention of unaccompanied refugee children.78 First, Russell argues that detention of unaccompanied refugee children not only exacerbates any trauma they may have suffered in their home countries, but is itself a traumatic experience for children. Secondly, detention of unaccompanied refugee children violates

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international law.79 Finally, detention of refugee children is a violation of a whole body of standards relating to the treatment of children and prisoners.80 In short, it is clear that the detrimental consequences of detaining children, made even worse by long periods of decision making, should seriously dissuade authorities from detaining children at all.

Providing for the Welfare of Unaccompanied Children There are consistent reports regarding relative levels of poverty in asylum seeker and refugee communities in South Africa.81 This has obvious implications for the care and welfare of children within these communities. In the original report, we considered comparative examples from other countries concerning the provision of welfare for refugee children. This included how countries appointed special guardians for unaccompanied children and how education for refugee children was organised. In terms of unaccompanied children, the major problem appears to be in their identification, and it seems that many of these children are falling through the cracks in the system. Where children are identified, either at a Refugee Reception Office or through the Children’s Court, there appear to be very few systems in place to ensure their safety and well-being. Social workers are strained in trying to address the needs of refugee children. Issues such as language, trauma and levels of education are often new and misunderstood challenges to ensuring the best interests of these children. In most cases, social workers and the police, both of which maintain statutory powers to ensure the protection of children in need of care, are unaware of the rights of refugee children. Xenophobic sentiments influence the decisions of both the public and government officials in rendering assistance to refugee children found to be in need of care.82 In most cases this xenophobia occurs on a subconscious level, with the social worker or teacher not even realising they are discriminating when they choose to assist a South African child instead of or before a refugee child. In most cases their response is that of ‘we need to look after our own first’. These attitudes translate into a refugee child being denied access to school, access to medical treatment and access to the Children’s Courts.

Appointment of a Guardian: Comparisons with Other Countries As writers in other countries, such as the UK, have commented, the need for children to be represented has two aspects, namely the need to have their interests legally represented and to have someone specifically designated to represent and promote their interests.83 The Netherlands has a comprehensive programme for the appointment of legal guardians, and a number of accompanying social programmes.84 It must be noted that much of this is made possible because these countries are wealthy and can afford

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such programmes. However, the contributions (often voluntary) of those working for organisations such as the Dutch Refugee Council should be underestimated.

Education Many refugee parents struggle to obtain access to primary school education for their children in South Africa, as schools are uncooperative and resistant to allowing entry to asylum-seekers. However, the National Consortium for Refugee Affairs85 has noted some improvement in this regard. Those children who are admitted often struggle with language issues and behavioural problems associated with traumatic experiences. There is inadequate trauma counselling, both in the schooling system and through the Department of Social Development. Many refugee children arrive in South Africa having received years of ad hoc education; their incorporation into the South African schooling system is often difficult for the parents, the teachers and the schools. Refugee children who are in need of care, especially unaccompanied minors, qualify for automatic school fees exemption in terms of the South African Schools Act. However, in reality this provision is hindered by the small number of refugee children that are formally recognised by the Courts as being in need of care.86

Material Assistance The government in South Africa provides no systematic and comprehensive assistance for asylum-seekers who are unable to support themselves, or are in need of assistance. As we too have stressed in this chapter there are growing calls for government to develop a policy and commit resources in this regard, particularly in respect of children. This is becoming increasingly urgent as non-governmental organisations struggle with a heavy burden of service delivery for which they alone are responsible.

Problem of Trafficking The trafficking of people, and especially children, for the sex trade is undeniably a highly disturbing trend.87 A number of children in this industry that end up being based in refugee host countries (such as the Netherlands) are confirmed to have entered the country as unaccompanied minors via the asylum determination procedure.88 There has furthermore been evidence that similar trends are being experienced in South Africa.89 One organisation has identified trafficking of people as a ‘modern form of slavery’,90 where persons are in many cases ‘sold’ to traffickers in order to obtain a loan of money, or indenture themselves for extended periods of time. A further disturbing fact that has arisen in the media’s increasing

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attention to the issue is that the more authorities try to clamp down on the entry of trafficked individuals, the more sophisticated the means of transporting people. This situation has led to a considerable number of deaths all over the world, both in Europe and North America91 and in South Africa,92 mostly as a consequence of more restrictive measures placed on entry and an increase in the number of border patrols. The trafficking of children is of growing concern to human rights advocates and advocacy organisations. The interest of organisations such as the Dutch NGO Terre des Hommes in the issue was originally stimulated by investigations into child prostitution.93 Eventually the organisation became aware that many of the girl victims were from China and West Africa, and a separate investigation was launched into their circumstances. In South Africa, the organisation Molo Songololo presented the first report on internal trafficking in South Africa in which they identified the vulnerability of children who were either coming from rural indigent communities or were undocumented migrants from neighbouring countries, in particular Lesotho, Swaziland and Mozambique.94 Terre des Hommes’ investigation concluded that girls from Nigeria normally entered the Netherlands via another West African country and countries in Eastern Europe.95 Furthermore, there was found to be evidence of complicity by Dutch officials stationed in overseas consulates (without whose assistance the obtaining of a visa would have been impossible). Ordinary problems encountered in conducting these types of investigations were compounded by the fact that children were very reluctant to provide detailed information, mainly because they were afraid. The recent IOM study on trafficking in southern Africa identified refugee women and children as a vulnerable group. Issues of documentation and a child’s dependency on an adult to ensure this documentation can place that child in a vulnerable position, in which prostitution or indentured labour is not unheard of. As in the Netherlands, there are serious suspicions that the asylum system is being utilised in the trafficking trade, as the slow response decision-making results in persons acquiring temporary documents with few questions asked. However, it is important to recognise the distinction between trafficking (tending to be involuntary) and smuggling (tending to be voluntary).96 It is also important to acknowledge that the response to such trends cannot ignore the rights of persons and the reasons why they may have utilised the services of a trafficker or smuggler in the first place. As indicated above, one of the reasons why such means are used by asylum-seekers and other migrants is because of the increasingly restrictive mechanisms designed to prevent unauthorised entry and/or restrictively interpret asylum claims. One also needs to keep in mind that smuggling is often the only means by which a refugee can escape persecution. The use of abstract terminology such as ‘irregular migrants’ in discussions on this subject is particularly discouraging, masking what are often very mixed reasons why people

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migrate. Finally, measures to address this problem need to guarantee the protection of victims of trafficking. The South African Law Reform Commission has been investigating the issue of trafficking with the purpose of developing draft legislation dealing with the prosecution of traffickers, the protection of trafficked victims and the prevention of trafficking.

Conclusion The original report upon which this chapter is based contained comprehensive recommendations in an attempt to provide clear and concrete guidelines for all organisations, agencies, departments or individuals who seek to provide assistance and services to refugee children and children who seek asylum. The recommendations were intended as a progressive interpretation of the existing legislation and policy and we attempted to be as comprehensive as possible. Where the existing legislation and policy did not specifically provide sufficient protection, recommendations regarding advocacy and law reform were made. In addition, training of officials was recommended. In general, we felt that the South African government, United Nations High Commission on Refugees (UNHCR) and relevant civil society groups such as the National Consortium for Refugee Affairs (NCRA) should cooperate on the development of comprehensive and appropriate policies and protocols for the reception and care of refugee children, especially unaccompanied or separated refugee and asylum-seeker children. This is particularly necessary for the treatment of unaccompanied or separated children in the status determination procedure. Based on the joint findings of our study, the recommendations first of all summarised what were the guiding principles for protection of refugee children, recognising that refugee children are differently placed and have different requirements from adult refugees, both as minors and as asylumseekers. Refugee children are vulnerable both as children, and as refugees. They obtain legal protection from rights accorded to children generally, and refugees specifically.97 The rights that protect refugees as children supersede their rights as refugees or asylum-seekers.98 This is pertinent to issues relating to provision of shelter, clothing, basic health services, education and general welfare. Out of all the guidelines provided in international law, it is the best interest of the child that is the primary consideration.99 The best interest of the child is also the principle established in South Africa’s Constitution for all matters concerning a child.100 It is a broad notion, and its interpretation depends on the circumstances of each particular case. We concluded that refugee and asylum-seeker children are entitled to all rights that protect South African children; South Africa is obliged to ensure the rights of every child within its jurisdiction, and may not discriminate.101

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In addition to the specific rights accorded to refugee children in their capacity as children, they also receive the benefit of all other rights accorded to refugees generally in terms of the Refugees Act. Thus, refugee children are entitled to the additional rights to non-discrimination and equality, administrative justice and procedural fairness, freedom of movement, security of the person and criminal justice rights. Refugee and asylum-seeker children also receive the protection of the African Charter on the Rights and Welfare of the Child.102 The Charter provides three areas of protection that are significant to refugee children, namely: protection from harmful social and cultural practices, free and compulsory basic education and access to secondary education, and an enjoinder to member states to prevent children from taking part in armed conflict and hostilities. Our recommendations went on to illustrate the circumstances under which a refugee child (under the age of eighteen) is to be assessed. They further examined the need to distinguish between unaccompanied or separated children and accompanied children (and the associated rights that are to be accorded). The original report determined that, while the current provisions in South African law are in many respects comprehensive enough to afford a basic standard of protection and care for refugee children, they were disjointed. Following extensive litigation during the course of 2004 we have seen the introduction of specific policies by the Department of Social Development, the Department of Home Affairs, the South African Police Services and the Department of Justice on the treatment and care of unaccompanied foreign children. A challenge now faced by refugee children remains their recognition as having refugee claims, which would then bring them within the framework of the Refugees Act. South African is currently drafting a new Children’s Bill that aims to provide comprehensive protection for all children within South Africa. To date the Bill fails to recognise the specific need of foreign children and one can predict a continued dependency on ad hoc and often badly distributed policies within each government department. There remains a desperate need to educate government officials on these policies and ensure their enforcement with continued rigorous monitoring of the immigration, refugee and child welfare fields across South Africa.

Notes 1. J. Bhabha and W. Young, ‘Not Adults in Miniature: Unaccompanied Child Asylum Seekers and the New US Guidelines, International Journal of Refugee Law 11, no. 11 (1999): 84–85 2. Source: South African Department of Home Affairs. 3. J. Klaaren, ‘Recent Citizenship in South Africa’, unpublished, Johannesburg, 1998, available at: www.law.wits.ac.za/docs/saca3.htm.

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4. Human Rights Committee, South African Human Rights Commission, Wits Law Clinic, Black Sash, Catholic Welfare and Development. 5. Child Welfare in Johannesburg, Pretoria and Durban, various night shelters and havens. 6. Cape Town Refugee Forum, Jesuit Refugee Services. 7. Trauma Centre, Centre for Conflict Resolution. 8. Report of the expert of the Secretary-General, Ms. Graca Machel, submitted pursuant to General Assembly resolution 48/157, Report of the Study on the Impact of Armed Conflict on Children UN GA A/51/306, 1996, last accessed on 25 March 2007 at: http://www.un.org/documents/ga/docs/51/plenary/a51-306.htm paragraph 68, as quoted by S. Russell, ‘Unaccompanied Refugee Children in the United Kingdom’, International Journal of Refugee Law, 11, no. 11 (1999): 126–27. See also: A. Skelton, ‘Viva Children Viva: Criminal Capacity of Children in Armed Conflict’, unpublished, Pretoria, 1999. 9. G. Goodwin-Gill, The Refugee in International Law, 2nd Edition, (Oxford, 1996), 257, and P. Kourula, Broadening the Edges: Refugee Definition and International Protection Revisited (The Hague, 1997), 140–43. 10. South African Children’s Charter, Government of South Africa, 1996 11. J. Handmaker, ‘Displaced Children and Children in Exile’, Submission to the South African Law Commission, unpublished, Pretoria, 1998, 3. 12. Goodwin-Gill, The Refugee, 356–58. 13. Section 28(2) of the Constitution of the Republic of South Africa, Act 108 of 1996. 14. Section 16(3) of the Regulations to the Refugees Act, 2000. 15. Section 16(1) of the Regulations to the Refugees Act, 2000. 16. Section 33(1) of the Refugees Act. 17. Case Number 5379/2004 (PTD). 18. Act 74 of 1983, amended by the Child Care Amendment Act 96 of 1996. 19. In terms of Section 3 of the Refugees Act. 20. Centre for Child Law and Ellis v. Minister of Home Affairs and Others, 2005 (6) SA 50 (T). 21. Section 8(A). 22. Section 11. 23. Act 38 of 2005. 24. NCRA, ‘Refugee Protection in South Africa’, unpublished, Pretoria, 2006. 25. Act 59 of 1992, as amended by the Welfare Laws Amendment Act 106 of 1997. 26. 2004 (6) SA 505 (CC). 27. Unreported. 28. The social grants in question are Child Foster Care Grants, Childcare Grants and Child Dependency Grants. 29. Lawyers for Human Rights was admitted as amicus curiae in this matter during March 2006, with the consent of both the Applicant and Respondent to the matter. 30. Act 59 of 1992, as amended by the Welfare Laws Amendment Act 106 of 1997. 31. Regulation 9(1)(b). 32. UNHCR, ‘Guidelines on Policies and Procedures in Dealing with Unaccompanied Minors Seeking Asylum,’ February 1997. 33. Section 28. 34. Section 28(3). 35. Section 28(2). 36. Case Number 12923/2004 (PTD). 37. South African Human Rights Commission, Illegal? Report on the Arrest and Detention of Persons in Terms of the Aliens Control Act, (Johannesburg, 1999). 38. See chapter 11, this collection. 39. L. Stone & S. Winterstein, A Right or a Privilege: Access to Basic Education for Asylum Seeker and Refugee children in South Africa (Pretoria, 2003).

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40. In the Netherlands, such persons are referred to as ‘Alleenstaande Minderjarige Asielzoekers’, meaning ‘Unaccompanied Asylum-seeker Minors’, or AMAs. 41. Bhabha and Young, ‘Not Adults in Miniature’, 91. 42. Russell, 1999, ‘Unaccompanied Refugee Children’, 135. 43. In the Netherlands, this is called a ‘leeftijds onderzoek’ – age investigation. 44. US Department of Justice, Immigration and Naturalization Service (INS), Guidelines for Children’s Asylum Claims (Washington, 1998). 45. Human Rights Watch, Slipping Through the Cracks: Unaccompanied Children Detained by the US Immigration and Naturalization Service (New York, 1997), 27. 46. Russell, ‘Unaccompanied Refugee Children’, 135. 47. Human Rights Watch, Shipping Through the Cracks, 27. 48. Opleiding Sociale Recht (OSR), meaning ‘Institute for Social Law Education’, based in Utrecht, provides a wide range of courses for lawyers and legal advisers in refugee and immigration law. 49. Bhabha and Young, ‘Not Adults in Miniature’, 118. 50. See Chapters 3, 4 and 5 of this collection. 51. See, however, J. Handmaker and N. Brancken, ‘Refugee Children’, in Manual on Children and the Law, ed. A. Skelton Lawyers for Human Rights, (Pretoria, 1999). 52. Bhabha and Young, ‘Not Adults in Miniature’, 87 53. Amnesty International, Most Vulnerable of All: The Treatment of Unaccompanied Refugee Children in the UK (London, 1999). 54. In addition to these valuable critical studies, a global initiative in Geneva has prepared a collection of policies and practices in a number of receiving states in North America, Europe and Australia. Some welcome such comparisons, while others believe that such reports should be treated with caution. On the one hand, it is said, they can be welcomed because they can result in enforceable minimum standards in a variety of critical areas, such as protection on first arrival, restrictions on detention, proper treatment in the asylum procedure, etc. On the other hand, it is said, such data can have negative consequences on policy development, whether in the context of a state defining a new policy for itself, or in preparing for ‘harmonisation’ in a regional context. In defining a ‘minimum standard’, states in these circumstances have at times been accused of reducing protection to the ‘lowest common denominator’. For a critical analysis in the context of harmonisation in the European Union, see FORUM, Democracy, Migrants and Police in the European Union: The 1996 IGC and Beyond (Utrecht, 1997), prepared by the ‘Standing Committee of Experts in International Immigration, Refugee and Criminal Law’. 55. The United States is one of only two countries in the world that has not yet ratified this Convention (the other country is Somalia, which currently lacks a government to ratify international treaties). The United Kingdom has issued a muchcondemned ‘reservation’ to provisions of the 1989 Convention relating to nonBritish nationals. 56. Bhabha and Young, ‘Not Adults in Miniature’. 57. Ibid, 96. 58. Ibid, 96. 59. Russell, 1999, ‘Unaccompanied Refugee Children’, 137. 60. Indeed, in most instances, children claim asylum, as accompanied minors, through their parents. 61. Bhabha and Young, ‘Not Adults in Miniature’, 101. 62. Ibid, 102. 63. Ibid, 103. 64. Ibid, 104. 65. Ibid, 104–5.

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66. Bhabha and Young also stress that, with regard to children, the ‘agents of harm’ might just as likely be non-state actors as governments, since children ‘can expect little government protection’ in circumstances where they might be persecuted by another, (ibid., 107). 67. Ibid, 110. 68. Russell, Ibid, 139. 69. Russell, Ibid, 142. 70. Human Rights Watch, ‘Prohibited Persons:’ Abuse of Undocumented Migrants, Refugees and Asylum Seekers in South Africa, New York (1998); South African Human Rights Commission, Illegal?; see also Chapter 8 this collection. 71. United Nations Commission on Human Rights, Report of Working Group on Arbitrary Detention: Visit to South Africa 4–19 September 2005 (Geneva, 2005). Ref: E/CN.4/2006/7/Add.3. 72. Centre for Child Law v. Minister of Home Affairs and others, 2005 (6) SA 50 (T). 73. Standard Minimum Rules for the Treatment of Prisoners, United Nations Economic and Social Council, Resolution 2076 of 1977. 74. Russell, ‘Unaccompanied Refugee Children’, 150. 75. Terre des Hommes, Kinderprostitutie in Nederland (The Hague, 1999) and Interview: Merel Hoogendoorn of Terre des Hommes, The Hague, 31 May 2000. 76. Human Rights Watch, Shipping Through the Cracks, 3. 77. Ibid. 78. Russell, ‘Unaccompanied Refugee Children’, 153. 79. Namely, article 37 of the 1989 Convention on the Rights of the Child and articles 10(3) and 14(4) of the International Covenant on Civil and Political Rights. 80. Namely, the UN Standard Minimum Rules on the Administration of Juvenile Justice (‘Beijing Rules’), the UNHCR Handbook and Guidelines on Refugee Children and UNHCR Excom Resolutions, notably No. 44. 81. See generally, L. Landau, ed. Forced Migrants in the New Johannesburg: Towards a Local Government Response (Johannesburg, 2004). 82. Ibid. 83. Russell, ‘Unaccompanied Refugee Children’, 145. 84. The policy of providing a guardian and ‘mentor’ for an unaccompanied, underage asylum-seeker is unique. In the United Kingdom, following referral of an unaccompanied refugee child by an immigration officer, a ‘Panel’ merely assists the unaccompanied child in the early stages of their arrival. 85. NCRA, ‘Refugee Protection in South Africa’. 86. Stone and Winterstein, A Right or a Privilege. 87. J. Ghosh, Huddled Masses and Uncertain Shores: Insights into Irregular Migration (The Hague, 1998), 28. 88. Terre des Hommes, Kinderprostitute, 3–13. 89. Human Rights Watch, IOM, Trafficking in Women and Children for Sexual Exploitation in Southern Africa, (Pretoria, 2003). Available from http://www.iom.org.za/en/main_page2_1.shtml (last accessed 10 March 2004). 90. Human Rights Watch, A Modern Form of Slavery (New York, 1993). 91. ‘Fatal Journey: The People Trade’, Newsweek, 3 July (2000): 16–23; Interview, Hoogendoorn, see n. 75. 92. In 1998, the bodies of fifty-eight Zimbabweans were found in a sealed truck at the South African border with Botswana. The occupants had suffocated to death. 93. Interview, Hoogendoorn, above n 75. 94. ‘South Africa’s Child Sex Trafficking Nightmare’, BBC, 23 November, 2000, Available at: http://news.bbc.co.uk/1/hi/world/africa/1037215.stm 95. Terre des Hommes, Kinderprostitute. 96. For a comprehensive analysis of the complex issues (and inter-relationship) of migration and asylum, see Human Rights Watch, ed., ‘NGO Background Paper on

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97.

98.

99.

100. 101. 102.

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the Refugee and Migration Interface’, presented to the UNHCR Global Consultations on International Protection, Geneva, 2001. Refugee children fall under both the 1989 United Nations Convention on the Rights of the Child (CRC), and the 1951 Convention Relating to the Status of Refugees. South Africa is a party to both Conventions. See Article 22 of the CRC: ‘State Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection.’ The CRC is the normative framework for the United Nations High Commission for Refugees in their treatment of children, and is the principal basis for the protection of refugee children. It stipulates that all decisions relating to the treatment of refugee and asylum-seeker children should be guided by three main principles, namely: the best interest of the child, non-discrimination and participation. See Article 3(1) of the CRC: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.’ Section 28(2) of the Constitution of the Republic of South Africa, Act 108 of 1996. Article 2, Convention of the Rights of the Child. South Africa acceded to the Charter on 7th January 2000.

10 PROTECTING THE INVISIBLE: THE STATUS OF WOMEN REFUGEES IN SOUTHERN AFRICA Nahla Valji, Lee Anne de la Hunt and Helen Moffett

 There is possibly no one more vulnerable than the refugee woman. Every means of support gone – her livelihood, the home she built, her dowry, her flock of goats or sheep, the well she dug, her household gods and shrine, the garden and crops she tended, the neighbours she talked to over the fence, her extended family, very often her husband and male relatives – disappeared into the maw of civil war, fled ahead of her, hauled away by security police or the militia. She does not know whether or not she is a widow, what has happened to the family’s savings, whether her parents are still alive – even what prayers to say. She is very often solely responsible for the care and support of her surviving children at the very moment that her capacity for feeding them is taken away. She may already have been raped, she may be pregnant or HIV-positive as a result. Every minute of every day, she experiences such overwhelming stress that her basic functioning is at risk; yet she has to make crucial, possibly life-saving decisions on a daily basis. Should she sell her bangles for food and a doctor for the baby, or keep them to bribe the guards at the border? Should she slaughter the last remaining chicken in the sack, or wait a little longer? Should she allow her eleven-year-old son to carry messages for a vigilante gang in exchange for food, knowing he could be shot if caught? Her seven-year-old daughter to beg and pilfer in the market? All this, and at the back of her mind, the constant fear of sexual violence to which she is now more vulnerable than ever before.

Introduction The above is a snapshot of the typical refugee in Africa today. But this woman and the millions like her are rendered largely invisible by the

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instruments and determination processes currently in place. Refugee demographics show that, of the approximately 20.8 million asylum seekers, refugees and internally displaced persons (IDPs) globally, half are women and girls. This stands in stark contrast to the number of women who apply for and are granted asylum in refugee-receiving countries. South Africa is no exception; statistics from the Department of Home Affairs reveal that women regularly comprise only 20 per cent of applications for asylum,1 and according to the 1998 ‘Gender Policy Statement’ of the Department of Justice, women constituted only 5 per cent of those who had been formally granted refugee status in South Africa. This troublesome disparity between the actual numbers of refugee women and the limited protection available to them has its roots in part in the legal mechanisms of the international refugee regime. The 1951 UN Convention relating to the Status of Refugees and the 1967 Protocol that followed it form the foundation of international refugee law. However, as has been regularly pointed out in the literature, these conventions were forged in the crucible of post-Second World War Europe, and further shaped by the Cold War agenda. Today, they continue to reflect the principal concerns of that period, namely the need to protect individuals from state persecution resulting from political beliefs or personal identity. Unfortunately, these and other assumptions underpinning these international instruments consolidated both the official and the popular notion of the typical asylum-seeker as a male dissident, tortured or imprisoned by the state for traditional political activities. Until the last decade, refugees were considered male almost by default; refugee women (and children) were recognised only as part of a ‘family package’. Gender considerations, including the realisation that women might be at special risk, are relatively new. This traditional view of the asylum-seeker as male, together with narrow and fairly rigid interpretations of what constitutes persecution, has had the effect of denying women their right to international protection. Because of the mindset that is the legacy of the 1951 Convention, women’s political involvement is often misinterpreted as personal conduct: defying or transgressing discriminatory laws or engaging in non-conventional political activities (such as nursing or providing food) is seen as a personal or ‘domestic’ action as opposed to political protest. This lack of recognition afforded women’s political involvement stands in the way of their seeking asylum for persecution on the basis of those actions. Furthermore, the focus on persecution by the state ignores the primary arena of persecution experienced by the majority of refugee women – the private sphere. The evidentiary procedures used in gathering and assessing testimony in traditional refugee determination processes also fail women. The practice in many Western states of keeping a ‘white list’ of countries assumed to be non-refugee-producing countries has been critiqued for a variety of reasons, but the most compelling for our purposes is that states are placed on this

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list regardless of their attitudes to their female citizens. In other words, gender practices that are discriminatory or downright dangerous to women are considered irrelevant in determining whether or not a country can produce authentic refugees. In most refugee-receiving countries, the majority of asylum-seekers and refugees are young single men or men with families. This is certainly the case in South Africa. Our particular refugee regime is one that ‘advantages’ the refugee who is male, mobile, unencumbered by children, and who has some financial resources or prospects (savings, job skills and so on). Most of the women refugees who might be expected to seek asylum in South Africa are to be found in refugee camps elsewhere in the subcontinent, where they and their children live with the daily risks of harassment, violence, unsanitary conditions and lack of basic needs, simply because they are not as mobile, comparatively independent and well resourced as male refugees. Like many other countries, the South African regime is also more inclined to look favourably on refugees whose experiences reflect those of traditional notions of persecution on political grounds. Clearly, this both privileges the male experience of persecution and discriminates against women’s experiences of persecution by evaluating the latter according to these male-centred and traditional political standards. The right to equality in the South African Constitution, when applied to refugee determination procedures, requires that women who fear for their lives and security be assessed according to the specific and unique circumstances inherent in their gender. Given our refugee statistics, where the very low number of women seeking asylum is overwhelmingly disproportionate to the actual number of women refugees in the African subcontinent, the failure to account for and incorporate women’s experiences within the determination procedures amounts to systematic infringement of their right to equality. There is clearly an urgent need to reframe the theories underpinning refugee rights and legislation from the perspective of gender, coupled with a thorough overhaul of procedures that explicitly or implicitly discriminate against women asylum-seekers. The gendering of refugee policies, however, cannot be achieved by merely adding gender persecution to traditional definitions of persecution, or changing asylum laws; refugee policies must also include a re-evaluation of all aspects of existing policy and practice to measure their gendered impact. Over the past two decades, UNHCR, followed by a handful of states, have adopted guidelines to assist in the determination of gender-related asylum claims. In 1999, the National Consortium for Refugee Affairs (NCRA), a South African non-governmental organisation, commissioned similar guidelines for South Africa with the intention of making them available for use by refugee status determination officers of the Department of Home Affairs. This chapter is based on a research report that recommended these guidelines. It has been updated to include relevant developments in the field since their original publication.

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Gender Guidelines for Asylum Determination The guidelines commissioned by the NCRA recognised that the greater part of persecution experienced by women can be defined according to conventional refugee grounds of political, religious or racial persecution, once the definition of ‘political’ was redefined and gendered.2 However, there is a further category of persecution that often cannot be covered by the above categories, and that is persecution because of gender. South Africa is in the unique position of having included gender within the definition of ‘social group’ in the Refugees Act. Most states that have recognised gender persecution have chosen not to amend existing legislation, but rather to provide non-binding guidelines on how gender may be incorporated into the category of ‘social group’ persecution. By including the category of gender within its legislation and giving it legally binding status, South Africa has made a real commitment towards the recognition of women’s rights and gender equality. The intention of these guidelines was to deconstruct assumptions concerning the ‘universal’ refugee, give further definition to the specific clause of the Act relating to gender persecution and promote sensitivity and alternative approaches to evidentiary hearings for women’s cases, as well as creating a blueprint by which to evaluate such cases. The goal of these guidelines is to try to reflect the totality of human experiences, and to extend the opportunity for protection to all asylum-seekers on the basis of gender equality.

A Brief Overview of Gendering Refugee Policies While the violation of women’s rights is universal and long-standing, the recognition of the need to create international protection mechanisms for women is relatively recent. In particular, the assertion that refugee determination processes should be expanded to include the experiences of women has occurred at an international level only within the last two decades. In 1984, the European Parliament and the Dutch Refugee Council passed similar resolutions stating that the concept of a particular social group could apply to groups of women who transgressed moral and ethical principles in their society, and who were victims of cruel and degrading treatment as a result. In 1985, the Executive Committee of the UNHCR concluded that states ‘are free to adopt the interpretation that women asylum seekers who face harsh or inhuman treatment due to their having transgressed the social mores of the society in which they live may be considered as a “particular social group” within the meaning of Article 1 A(2) of the 1951 United Nations Refugee Convention’.3

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The UNHCR Executive Committee ruled in 1990 that severe discrimination as outlined and outlawed in Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) could form the basis for the granting of refugee status.4 In 1991, the UNHCR released its ‘Guidelines on the Protection of Refugee Women’. Included were suggestions for the reforming of legal procedures to include recognition of gender persecution, as well as appropriate interview techniques when investigating claims of this nature. In 1991, the French Commission for Appeals of Refugees became the first judicial authority to recognise female circumcision (i.e. female genital cutting) as a form of persecution under the terms of the 1951 UN Convention. However, they did not grant the applicant refugee status, as they claimed she had not ‘exhausted all available local remedies’. This decision nevertheless set a precedent for countries with similar refugee processes around the world. The debate over internal remedies, although an important part of refugee law, has since been seen to be less crucial in gender persecution cases, where the circumstances are often different from those of a traditional refugee scenario. In 1993, the UNHCR Executive Committee adopted a further resolution on the evidentiary procedures used by states for determination purposes. The resolution noted that asylum-seekers who had suffered sexual violence should be treated with particular sensitivity, and recommended the establishment of training programmes designed to ensure that those involved in the determination process were adequately sensitised to issues of gender and culture. In March 1993, Canada became the first country to produce a comprehensive set of guidelines on the inclusion of gender as a ‘social group’ under the 1951 Convention. The guidelines were reviewed and updated in 1996, and today act as a guide for other countries addressing this issue. The Canadian precedent was subsequently followed by a number of other countries, including the United States, Australia, the United Kingdom and Sweden. Most countries, however, have chosen not to amend existing legislation or policy to include ‘sex’ or ‘gender’ as a social group, but rather to issue non-binding regulations on how officials might evaluate claims of gender persecution. South Africa remains the only country to circumvent the debate surrounding membership of a social group by including gender as an asylum-applicable category within the Refugees Act of 1998. In the Beijing Declaration and Platform for Action, states agreed to ‘consider recognizing as refugees those women whose claim to refugee status is based upon the well-founded fear of persecution … including persecution through sexual violence or other gender-related persecution’. The 1998 Report of the UN Special Rapporteur on Violence against Women noted that ‘States party to the 1951 Refugee Convention are urged to adopt guidelines with respect to gender-related asylum claims.’

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In 2002, UNHCR released two separate documents relevant to genderrelated persecution claims. Both documents include guidelines on the legal interpretation of the refugee definition that is encompassed in the 1951 Convention; the first dealing specifically with the issue of gender-related claims and the second with the interpretation of the term membership of a particular social group (PSG). The PSG Guidelines state that ‘sex can properly be within the ambit of the social group category, with women being a clear example of a social subset defined by innate and immutable characteristics, and who are frequently treated differently than men. Their characteristics also identify them as a group in society, subjecting them to different treatment and standards in some countries’.5

Definitions of Related Terms In order to truly afford an equal opportunity for adequate protection, gender-sensitive interpretations need to be applied to all key elements of the Convention refugee definition, not simply providing for the inclusion of gender as a particular social group. This includes the interpretation of terms such as persecution, well-founded fear and internal flight alternative.

‘Refugee’ The 1951 Convention defines a refugee as any person who as a result of … and owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his [sic] nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or owing to such fear, is unwilling to return to it.

‘Gender’ Gender refers to the social construction of power relations between women and men, and the implications these relations hold for the identity, status, roles and responsibilities of women (and men). Gender is fundamentally concerned with the inequalities of power within all spheres of society. In order to appropriately carry out their responsibilities, interviewers must clearly understand the relationship between gender and refugee experiences. Most specifically, they must grasp the difference between the refugee experience of persecution as a woman and the refugee experience of persecution because they are women. For example, women who are raped because of their political beliefs would fall into the first category, while women who are stripped of their vote because they are women fall into the second category.

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The term ‘gender-based persecution’, although utilised widely, is in fact misleading. The term fails to make a distinction between persecution for reasons of biological sex, persecution for reasons of gender and specific forms of persecution generally directed at one particular sex (for example, rape).6 While the term is employed here in reference to all three potential situations, it is also understood that a conflation of ‘sex’ and ‘gender’ in policy can further entrench rather than redress gender inequities. An example of this is contained in Sweden’s Aliens Act which provides for a separate form of protection for certain individuals who do not meet the Convention requirements. One of the categories covered by this protection comprises individuals who flee their country of origin due to persecution owing to their gender or sexual orientation. As of 2001, however, only cases involving female genital cutting and forced abortion succeeded in being granted complementary protection under the gender clause. In other words, the gender clause was being defined as a sex-specific clause with application only to those harms experienced solely by women. This has had a two fold effect. First, it relegated women’s applications for asylum to the second-class protection of a complementary protection clause rather than the full protection offered by asylum status. Secondly, it failed to address the way in which the refugee policy and its interpretation are inherently gender-biased. What is needed is not the creation of separate categories of substandard protection for ‘women’s’ cases but rather a gendered reading of legislation and policy in order to recognise women’s experiences of persecution and offer an equal opportunity for protection. Following the example set by the Canadian guidelines, it has been widely accepted that female refugees’ experiences of persecution fall into four broad categories.

Category 1: Women who Fear Persecution on the Same Convention Grounds and Under Similar Circumstances as Men This includes women persecuted for their identity – national, racial or social – or their particular beliefs. Women in this category are also often persecuted as women (raped, for example, because of their involvement in a political or opposition party); the nature of the harm feared may thus be different from that feared by a man, even though the reasons for the harm are similar.

Category 2: Women who Fear Persecution Solely Because of Reasons Relating to Kinship The age-old method of cherchez la famille (‘search the family’) means that harm is done to women as a form of revenge against their (male) family members, or they may be used as ‘hostages’ to entrap other members of the family. They may also be persecuted for views imputed to them by virtue of

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familial association. For example, it might be assumed that the spouse of a political activist holds the same views as her husband.

Category 3: Women who Fear Persecution Resulting from Conditions of Severe Discrimination on Grounds of Gender Such women may also be at risk of systematic violence at the hands of private citizens because the state is either unable or unwilling to protect them.

Category 4: Women who fear persecution as a result of transgressing religious, customary or social mores The practices themselves may be based on an assumption of the inferior status of women, which can manifest in discrimination severe enough to qualify as persecution (for example, female genital cutting (see above), suttee (burning of widows) or dowry burnings); or transgressions may be met with punishments so disproportionately severe as to amount to persecution (for example, being flogged for wearing lipstick or stoned to death for allegations of infidelity).

‘Persecution’ Few states have taken the step of precisely defining ‘persecution’ or ‘wellfounded fear of persecution’ within their domestic legislation. The UNHCR has advised that ‘From article 33 of the Convention, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership in a particular social group is always persecution. Other serious violations of human rights – for the same reasons – would also constitute persecution.’7 However, persecution within the context of the Refugee Convention has two elements: first, establishing ‘serious harm’ (or threat thereof); secondly, the inability or unwillingness of a state to offer protection to the individual. When considering the persecution of women, it is vital to acknowledge sexual violence as one of the most pervasive forms of persecution experienced by women. Rape as a means of warfare appears to be on the rise and has become a brutal and defining characteristic of conflicts in the DRC, Bosnia, Sudan and Rwanda. Until recently, it had been almost impossible to establish state responsibility for sexual crimes, even in the context of war situations. The nature of the crime led automatically to the assumption that this was a ‘personal crime’ as opposed to a state-sanctioned tactic. Today, however, international bodies are recognising the brutal and systematic intent of such crimes. Acknowledging rape as a tool of power and a means to achieving a political end is a step forward in reconceptualising the persecution of

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women. It may not always be possible to draw a direct line of responsibility to the state, although, subsequent to the Iraqi invasion of Kuwait, it emerged that there actually existed an official office in the civil service for the rape and torture of women.8 During the conflict in the DRC, reports emerged of the deliberate conscription of HIV-positive combatants in order to spread the virus by way of rape. The widespread use of rape in war is premised on the implicit assumption that this is acceptable to and even sanctioned by the state. Disturbing allegations have also emerged from Zimbabwe, suggesting that rape and sexual torture have been used as a form of political punishment; vigilante groups have targeted women whose male relatives support the opposition, or who live in villages that question the government party line. There are reports that these women have been gang-raped, specifically in order to teach their communities ‘a lesson’ not to oppose Zimbabwean African National Union-Patriotic Front (ZANU-PF) members or policies.9 While these circumstances would be clear grounds for seeking asylum on the basis of persecution, women applicants are sometimes reluctant to raise these circumstances in their asylum applications. One reason for this might have to do with the widespread perception that sexual violence does not constitute persecution or torture; although sexual violence is probably the oldest war crime there is, the official recognition of rape as such is barely a decade old. The tribunals for war crimes in Rwanda and Yugoslavia have both condemned rape as a crime against humanity, and a UN panel in 1994 ruled that rape related to ethnic cleansing constituted a ‘war crime and legally constituted genocide’. Most recently, the Rome Statute establishing the International Criminal Court defined as ‘crimes against humanity’ rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation and any other form of sexual violence of comparable gravity. The recognition of non-state actors as agents of persecution is also important, given the new forms that conflicts are taking. Since the end of the Cold War, the vast majority of conflicts have taken place within the borders of one country. Women have been subjected to violence and atrocities at the hands of militia groups, paramilitaries, guerrilla and other intrastate forces.10 For the majority of women, however, abuse and violation occur not at the hands of the state or during times of war, but at the hands of private individuals and within their communities. Such persecution has regularly been sidelined by the argument that the element of state responsibility required to appeal for international protection does not exist in cases of private abuse. This argument fails to recognise the dual nature of a state’s responsibility to its citizens. States have both a negative obligation not to violate a citizen’s rights and a concomitant positive obligation to respect and protect such rights. Systematic patterns of abuse against one sector of society are indicative of a lack of political will to protect that group, and

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are tantamount to an abrogation of international obligations. With this burden of responsibility evaded or refused by the state, women have no other recourse but to seek international protection. Again, jurisprudence surrounding state responsibility for private human rights abuses is growing. In 1988, the Inter-American court ruled that: An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.11

The UNHCR has also commented that ‘[w]hen discriminatory practices or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection’.12 The existence of legislation that seems to protect women should not be used as evidence of state protection in and of itself if it can be proved that abuses continue unchecked. For example, in Sudan, which has the most widespread practice of infibulation in the world, a law was passed in 1974 criminalising this most extreme form of female genital cutting (FGC). However, it has not been enforced due to the pervasiveness of the practice and the way in which it is interwoven into the entire socio-cultural system and today the prevalence rate of FGC in Sudan remains unabated, at almost 90 per cent.13 Laws in and of themselves are insufficient to prevent mistreatment of women if there is no political will to enforce them. There are a number of reasons why national governments might not enforce legislation that protects women. These include the fact that sexual discrimination is viewed as ‘trivial’, that abuse of women is seen as a cultural or private issue, that women’s rights are not fully recognised as human rights, and that the abuses are seen as too pervasive to confront.14 Beyond the realm of legislation, conscious inaction on the part of a state can also amount to complicity in the persecution of its citizens. Such inaction can take the form of official legislation (for example, not recognising rape in marriage, or relegating women to the status of legal minors), lack of police response to requests for assistance and openly displayed or a marked reluctance to assist or investigate, prosecute or punish transgressing individuals. All such actions constitute state complicity if they deprive women of effective legal protection from abuse. If they lead to nonenforcement, all these reasons nevertheless constitute passive complicity and acceptance of such abuse by the state. For victims who have no internal recourse for their persecution, asylum on such grounds could be established.

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International Framework of Rights South Africa has in its Constitution recognised fundamental inalienable rights for all persons. Those that are of particular relevance to women are the right to dignity (s. 6), the right to be free from all forms of violence from either public or private sources (s. 12(1)(c)), the right not to be tortured in any way (s. 12(1)(d)) and the right not to be treated or punished in a cruel, inhuman or degrading manner (s. 12(1)(e). Also relevant is section 12(2), which asserts the right to bodily and psychological integrity, including the right to make decisions concerning reproduction, and to security in and control over the body. There are many forms of harm that constitute torture or cruel, inhuman or degrading treatment that are specific to, or more commonly affect women. These include suttee, dowry and ‘honour’ killings, forced marriages, ‘temporary pleasure’ marriages, all forms of sexual violence, female genital cutting, marital-related harm, forced abortions, forced sterilisations, and so forth. Whether an instance of harm, including harm that is gender-specific, amounts to persecution should be assessed on the basis of South Africa’s constitutional provisions, as well as internationally recognised human rights standards. The UN Declaration on the Elimination of Violence Against Women defines violence against women as ‘any act of gender-based violence that results in, or is likely to result in physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life’. As this interpretation represents an internationally recognised consensus on the definition of gender-based violence, it provides a useful framework for the interpretation of gender persecution according to South African legislation. Gender-specific violence does not differ in significance from beatings, torture or other forms of violence that are commonly held to amount to persecution. Other instruments that may be of assistance in evaluating claims of gender persecution include (but are not limited to): The Universal Declaration of Human Rights (1948), The Convention for the Suppression of the Traffic in Persons and the Exploitation of Prostitution in Others (1949), The Convention on the Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (1962), The Convention on the Elimination of All Forms of Racial Discrimination (1965), The International Covenant on Civil and Political Rights (ICCPR) (1966). The International Covenant on Economic, Social and Cultural Rights (ICESR) (1966),

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The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1979), The UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) (1984), The UN Declaration on the Elimination of Violence Against Women (1993), The UN Platform for Action (1995), The Convention Against Transnational Organised Crime and Supplementary Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000). The African Charter on Human and Peoples’ Rights (1981).

Interview Procedures for Gender Persecution Cases It is necessary to use a variety of gender-sensitive techniques to obtain information from women during the determination process. This means utilising methods that help to ensure that women feel safe in telling their story, whether this entails counsellors and interpreters being present, or enlisting testimony from cultural experts. It must be remembered that, in many cultures, rape and sexual assault are still perceived as failure by a woman to protect her sexual integrity. Self-blame, shame and anxiety about loss of virginity or marital integrity may heighten a woman’s unwillingness to discuss the matter. The most vital provision that must be made for assessing genderpersecution claims is the use of female interpreters and interviewers. Reluctance on the part of women to discuss their experiences is often aggravated by the presence of a male official, particularly if the traumatic events being related were perpetrated by a male or men in official positions of authority. At present, the determination process entails an initial hearing by a refugee determination officer, in which the claimant is interviewed. This official records the evidence and assesses the credibility of the case for determination by a panel. In the short term, if training is unavailable for all officials, it is advised that claims based on gender persecution be heard by a select group of women officials who have received appropriate training. Alternatively, the assessment could be heard directly by the refugee determination panel. However, this would be less ideal, given that every effort should be made to ensure that women are provided a safe environment in which to tell their stories; obviously, the presence of numerous people may overwhelm individual women and mitigate against the creation of such an environment. All interviews should begin with express assurances of confidentiality. Failure to do this will seriously discourage the disclosure of intimate details. Any information gathered in the course of the application process should

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not be disclosed (for example, to other members of the woman’s family) or used for any purposes other than determination without specific written consent of the women concerned. Officials should be required to schedule an adequate amount of time for such interviews. This will better enable them to establish a rapport with the claimant and facilitate the sharing of difficult experiences. Interpreters play an important role in the determination procedures. There is also a need for interpreters to be trained in gender sensitivity. It is important that the interpreter does not come from a group that may harbour hostility to the woman on the grounds of ethnicity, gender and so on. Interpreters should not be chosen merely because they speak the same language as the asylum-seeker, and should be subject to evaluation and spot checks for accuracy. The hearing officer should begin the interview by providing any relevant information about the determination process to the claimant, as well as giving a brief explanation of asylum categories. Women may have a different perception of torture, which they may not equate with the types of harm they fear (for example, sexual violence, forced abortions or female genital mutilation). Inadequate knowledge of their options could adversely affect the determination process for many women.

Provision of Alternative Means of Providing Testimony Many women who have experienced sexual violence come from cultures in which family honour is based on sexual purity. If rape is culturally understood as the fault of the victim, admitting to such an experience might result in excommunication from the family or community. For this reason, women may be reluctant to tell the full story or disclose details relevant to the case, particularly in the presence of a male family member, who may be unaware of their experiences. For this reason, all interviews should take place in strict privacy and away from other members of the family, regardless of whether the woman is the primary claimant or not. In addition, many women have been abused by those in positions of authority and therefore may be afraid to share their stories. Therefore, provision should be made for alternative means of presenting testimony, if necessary. Following on the Canadian experience, such alternatives could include presenting testimony by means of affidavits or videotapes, or to a hearing officer specifically trained to deal with violence against women.

Asylum Applications by Families or Groups in which the Woman is Not the Primary Applicant In line with UNHCR recommendations, provision should be made for husbands and wives to have separate hearings when filing for refugee status, and for both partners to contribute information to the assessment.

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There is often an implicit assumption that a family’s request for asylum stems from the persecutory experiences of the men. This negates the possibility that women may have legitimate grounds for laying claims of their own. Women may have had experiences of which their families remain unaware, as sexual violence is a source of humiliation in any culture; moreover, in those societies where a woman is considered to be responsible for her own sexual protection, the punishment for experiencing sexual violation could be ostracism or death. As the UNHCR has noted, ‘[i]f a female refugee is registered in the name of her male partner, and if only the husband’s situation is considered during a family’s request for asylum, then the specific needs, interests and opinions of the woman will almost inevitably be ignored’.15 It is important that when a woman applies for asylum as a dependant, she be informed in private, and in terms that she understands, of her right to make an independent application for asylum at any stage. She should also be advised to consult with a lawyer before doing so. The existing practice of giving derivative refugee status to the partner and children of an asylum applicant is problematic. In South Africa, where most applicants have been men, derivative status is traditionally given to their wives. This situation leaves these women entirely dependent on their partners. Evidence concerning such ‘sponsored’ wives in Canada points to an increase in domination and domestic abuse by husbands well aware of the new power and status the refugee determination process grants them over their wives. In some countries, women are routinely questioned to corroborate the testimony of their husbands. This practice should be guarded against, as it assumes that in all cultures men discuss military or political activities with their partners. In certain contexts, this is an inappropriate assumption that may serve to discredit a legitimate claim.

Gender and Cultural Sensitivity All officials should be made aware of cultural as well as gender differences in communication. Interviewers should also be supplied with a basic knowledge of the cultures of claimants in order to prevent cross-cultural misunderstandings while assessing the credibility of a claimant’s evidence. For example, while Westerners generally read a lack of eye contact as indicative of dishonesty, women from conservative cultures are often socialised to be submissive and will therefore avert their eyes in the presence of authority. In such cultures, making direct eye contact with a stranger may be seen as ‘bold’, ‘cheeky’ or a means of signalling sexual availability. Officers should also be trained to recognise symptoms of rape trauma syndrome or post-traumatic stress disorder. These symptoms include persistent fear, loss of self-confidence and self-esteem, difficulty in concentration, an attitude of self-blame (it is common for abuse victims to

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accuse themselves of complicity in the abuse), and memory blocks or distorted flashbacks. Such symptoms will affect and even distort how a woman responds during an interview, and negatively interpreting or misunderstanding these signals can lead to the discrediting of a legitimate claim. It is also equally important not to judge testimony by the level of emotion displayed. Failure to display overt emotion does not necessarily mean that a woman is not distressed by what has happened to her; emotional ‘numbness’ is a common response to trauma.

Questioning during the Interview The type of questions and the manner in which they are asked are likely to determine the information given. Unless the right questions are asked, it is unlikely that a woman will be able to describe her experiences. Questions should be phrased in an open-ended, non-confrontational and nonjudgemental way so as to put women at their ease. This will enable the official to gather the maximum amount of information. Active listening is a counselling tool effective in making interviewees feel more comfortable and willing to share their stories. Active listening skills include: reflective listening (paraphrasing what a woman has said and asking for confirmation, for example, ‘So you are saying that, when you went to the market, you were beaten? Is that what happened?); not talking at the same time as the interviewee, interrupting her or cutting her off; not making judgemental comments (for example, ‘Why were you out after dark anyway?’). It is also important that interviewers maintain composure if the woman becomes emotional or upset; ensure minimum distractions; and ensure that any interpreting is an accurate reflection of the testimony (this could simply involve listening closely to the woman’s intonation, or the length of the translation, and checking that they ‘match’). Questions asked should take into account and reflect the non-traditional roles that women often play in political protest. Because of the social constraints found in many cultures, women’s political protest and activism may include, but not be limited to, community activism, providing food, nursing or shelter, taking messages or hiding people. Activities such as these have in the past been incorrectly ascribed to the realm of ‘personal conduct’ when in fact they constitute alternative political action. Here the interviewing officer should consider the perception of the perpetrator as the deciding factor. Actions that may be interpreted as personal conduct in one arena may be interpreted very differently in another, and it is not in the end the actual belief or actions of the asylum-seeker that must be assessed, but the interpretation and perception of the perpetrator. For example, Nazi troops occupying France during the Second World War often shot local women and their families for providing food, rudimentary first aid and a night in the barn to downed Allied airmen. Such activities, although

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‘domestic’ and therefore different from the clandestine activities of the Resistance, were seen as ‘political’ (and punishable) by the occupying forces. The above recommendations should be considered in all cases where an interview is scheduled for a woman applicant. It is not possible to know what the purported grounds for asylum will be prior to the initial interview. Additionally, women may not be aware that their gender-related experiences constitute valid criteria for an asylum claim and may pursue a claim of lesser merit and strength because it resembles more ‘traditional’ refugee claims. For this reason, hearing officers should attempt to elicit a wide range of information on the woman’s experiences, as well as providing a brief explanation of status determination processes and any other information that may be relevant. Obviously not all claims put forward by women are specifically genderrelated. Women frequently claim fear of persecution on grounds similar to fellow male citizens. In general, however, the nature and level of vulnerability are different for women. Therefore, even where asylum is sought on the basis of race, political affiliation, or religion, all efforts should be made to enable a woman to relate her full story.

Assessment of Claims The Need for a More Comprehensive Understanding of Political Persecution The different position of women vis-à-vis the refugee determination process must be recognised. Strictly patriarchal societies (which are also those societies most likely to condone or perpetuate gender-persecutory practices) will by their very nature limit the interaction women have with the public sphere. Women in such societies are therefore less likely to be publicly active in religious, political or nationalist organisations – the very criteria used to determine asylum. This exclusion of women from public life does not mean that women are not persecuted; rather this marginalisation itself may be an element of discrimination severe enough to constitute persecution in and of itself. For women who do become politically involved, conventional activities such as attending protests, writing materials such as pamphlets and joining political parties may not be possible in their society or culture. Their political activities are more likely to take the shape of less conventional interactions, such as providing community services, food and shelter to activists, delivering messages, and so on. These activities are rendered political by the context in which they take place and the goal they seek to achieve. The support women often provide for more traditional kinds of political activity is both important and often more risky than traditional political involvement, as the women can be more severely punished than

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their male counterparts, as they not only challenge a political status quo, but also transgress the social and cultural mores that preclude women’s involvement in such issues. Expressions of resistance to gendered oppression or institutionalised discrimination are political actions, and persecution for expressing such beliefs or refusing to accept an inferior station in society thus constitutes persecution on the grounds of political opinion. Thus a woman who asserts her independence by laying claim to certain rights – whether they be the right to be sexually active, to exercise reproductive rights or to refuse cultural practices – is taking an inherently political stand. Such a reconceptualisation of political activities will mean that, in many cases, gender claims will be able to be assessed on political grounds. In the case of refusal to comply with a cultural practice, the act of refusal may be viewed as a political one if the majority of citizens support the practice. In many instances, the act of refusal can be construed as the assertion of a feminist ideology in a context that does not welcome such an ideology. If women refuse a community’s social mores, they may be considered feminist, and therefore political. An example of this would be the refusal by some Iranian women to wear a veil as a means of expressing opposition to the Islamic fundamentalist state (claims of the basis of persecution on religious grounds must also recognise the right not to practise a specific religion).

Internal Flight Alternative In addition to the assumption of state responsibility, the granting of asylum is premised on the assumption that the state as a whole has failed to provide protection and that the abuse is not a regionally located incident. The element of internal flight alternative (IFA) is a fundamental premise of the 1951 Convention, which asks whether it would have been reasonably possible for the applicant to flee to another area of their country of origin where there would be no possibility of further persecution. Although IFA should be equally applicable in cases of gender claims, officers must weigh the theoretical possibility of IFA more carefully in the cases of women, exhibiting sensitivity to the fact that, in many cultures, internal flight may well be less possible for women than it is for men. For example, a woman who has been sexually violated by soldiers while living in an urban area may not be able to return to her village community, especially if she is pregnant as a result, for fear of ostracisation. Others may live in states where it is unacceptable for a woman to live without the guardianship of a male or to engage in work in order to support herself. In cases such as these, an IFA would be unlikely, and the evidence should be assessed as such. The UNHCR warns against over-exacting IFA assessments and states rather that ‘a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so’.16

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It has been suggested that an asylum adjudicator should take into account four key questions when examining the option of IFA. Did the claimant attempt to flee within her own country? Why or why not? Could she have received meaningful protection in another part of her country? Would internal flight have had a significant impact on the quality of life for herself, her children or other members of her family? Do any barriers exist to obtaining protection for the type of conduct she is fleeing?17 Adjudicators should be supplied with a working knowledge of specific country practices, as well as barriers to IFA that exist within these countries.

A ‘Well-founded Fear’ of Persecution The term ‘well-founded fear’ is used when a claimant demonstrates that there is a ‘reasonable’ or ‘serious possibility’ that they would be persecuted if returned to their country of origin. The term has been somewhat more difficult to define in relation to gender-persecution cases. The argument is made that proving well-founded fear of rape, female genital cutting, suttee, or other such practices is difficult, as the assessing officer is entirely reliant on the testimony of the applicant. However, this argument carries little weight, as all cases of persecution rely primarily on testimonial evidence of the victim, and, unless the victim retains physical evidence of the persecution, such cases are difficult to corroborate or prove. This does not constitute grounds for dismissing gender-persecution cases, which must be assessed with the same weight of probability given to other asylum cases. In the case of, for example, a Sudanese woman who fears that her daughter will be subjected to infibulation, officials should consider the cultural context in the same way they would consider the political or human rights environment of a country that produces refugees. As 90 per cent of young girls in Sudan are infibulated, the probability of such a case being credible is overwhelmingly high. The US Ninth Circuit Court has held that a one in ten chance of being killed because of political opinion is sufficient to meet the statutory test for asylum due to a well-founded fear of persecution. Although documentary evidence of rape, domestic abuse and sexual violence is difficult to compile and thus prove (particularly in cases where the state is actively or passively complicit), such cases should be treated according to the same standards as political cases. Additionally, when assessing evidence and establishing a standard of proof, officials should be made aware that there is often no physical

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evidence in cases involving sexual violence, and that abusers will often choose specific methods of inflicting harm precisely because they do not leave marks.

Cases of Non-convention Persecution with Legitimate Fear of Serious Harm Where a woman is found not to meet the requirements of the 1951 Convention for refugee status, but could be at risk if returned to her country of origin, or where there are other compassionate or humanitarian circumstances, the applicant should be given permission to remain. This practice is outlined in a number of international instruments, including the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which states in Article 3(1), ‘No state party shall expel, return or extradite a person to another state where there are substantial grounds for believing that he [sic] would be in danger of being subjected to torture.’ As most gender-related crimes such as rape and female genital cutting clearly fit the definition of torture, the onus falls on the state to protect women where there is reasonable suspicion that her removal to the country of origin will result in her being subjected to such ill-treatment. The practice of offering ‘leave to remain’ should only be utilised once the claim has been thoroughly assessed through a gendered interpretation of Convention grounds, as explained above. The practice of using special protection clauses as the automatic response to gender claims does little more than ‘ghettoise’ such cases, offering second-class protection and reinforcing perceptions that the refugee system exists solely for the protection of male asylum-seekers.

Repatriation Assessments Once approved, refugee claims are regularly re-evaluated in order to determine whether circumstances have changed sufficiently in the country of origin to warrant repatriation of the refugee. This procedure needs to be approached differently in the case of gender-persecution claims. The passing of laws against certain sex-specific practices by a state is insufficient evidence of change if such laws are not enforced or do little to protect women in their country of origin. The possibility that a woman might be ostracised for fleeing her community in the first place should also be considered.

Gathering of External Information in the Assessment of Claims A database relating to the status of women in any given state should be compiled and kept at the Department of Home Affairs and made available

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to officials dealing with gender claims, who must be provided with adequate and up-to-date information. This is of particular importance in assessing the credibility of claims. Such databases should include information on the position of women. This includes the position of women before the law (including but not limited to succession-related laws, marital and divorce laws, access to abortion and birth control, and any laws relating to the punishment of sexual offences and violence against women). Providing for the protection of the political rights of women must take account of the social and economic rights of women, including the right to an education or career, the status or quality of life of vulnerable groups of women such as widows, laws concerning dress and demeanour. Statistics on the pervasiveness of violence against women and what forms they take (such as suttee, honour killings (execution of female relatives because they have ‘shamed’ their families, usually through illicit sexual liaisons or pregnancies), dowry deaths), as well as the specific measures (if any) adopted by the state to protect women and the effectiveness of these measures, must also be provided. Information on the potential consequences for women who return to their former communities, as well as information on the treatment of women living apart from their husbands or kin in the country of origin, could be used to assess the internal flight alternative. Indeed, any and all practices, whether cultural or otherwise, that impact negatively on women (female genital cutting, suttee, and so on), as well as details of the consequences faced by women who challenge societal norms of behaviour, especially those regarding virginity, divorce and arranged marriages, including information on the consequences of flouting cultural norms (such as dress codes), should also be included. While a database on these circumstances will be a necessary aid in assessing claims, it should also be noted that most crimes perpetrated against women are generally ignored by states and information is therefore likely to be limited. Where it is difficult to obtain evidence relevant to a woman’s claim, it may be necessary to conduct further research. Useful sources might include: media reports and newspaper articles; reports issued by non-governmental organisations or other relevant community organisations; online information available on the Internet or sources such as the UNHCR’s RefWorld on CD-ROM; local experts on both the region and/or the gender issues involved.

Monitoring of Implementation and Follow-up Procedures It is recommended that South Africa follow the example set by the Canadian guidelines in requiring that, in cases where a claim of gender persecution is denied by the panel, this decision be accompanied by written reasons. Such

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a measure is important for two reasons. First, it allows the state to monitor all such claims, as well as the consistency of decisions, particularly in cases where there is a deviation from the recommendations of the guidelines. Secondly, it forces a measure of transparency in such matters and gives additional force to the applicable sections of the Refugees Act.

Addressing Arguments against the Inclusion of Gender as a Social Group Cultural Relativism According to Heise: ‘Sex-specific violence and discrimination has never been treated with the same seriousness as other human rights abuses … If a person is murdered because of his or her politics, the world justifiably responds with outrage. But if a person is beaten or allowed to die because she is female, the world dismisses it as cultural tradition.’18 Cultural relativism is often cited as a reason for ignoring the claims of gender persecution. In the light of internationally accepted human rights instruments, such as CEDAW, these claims have little foundation. Article 5(a) of CEDAW obliges state parties to: ‘take all appropriate measures (a) to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.’ Implicit in this article is an obligation to protect women from practices premised on assumptions of inferiority or traditional stereotypes. Practices such as female genital cutting, suttee, bride burnings, forced marriages, rape and domestic violence are not only violations of liberty and security of person, they are clearly dangerous and degrading to women and an expression of the inherently inferior standing which women hold in many societies. The right to safety, dignity of life and freedom from cruel, inhuman or degrading treatment or punishment is not culturally derived, but stems from the common humanity of the individual. The argument for cultural relativity values the right of the community, tribe or state above the right of women to life, bodily integrity and, most of all, choice. It should be noted that asylum law does not actively seek women to rescue – it merely gives them a means by which to assert their rights and escape such violations. As then-Chairman Mawani of the Canadian Immigration and Refugee Board noted in the press release that accompanied Canada’s Guidelines, ‘This is not simply a matter of imposing Western standards on other countries. It is a matter of respecting internationally accepted human rights standards.’

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Floodgate Argument So far, each state that has chosen to recognise gender persecution within its refugee determination processes has had to contend with the argument that such an inclusion would open a ‘floodgate’, swamping those countries with applicants. South Africa has been no exception. However, this fear has little foundation, for a number of reasons. The floodgate argument is premised on the assumption that the category of women as a specific group is too large and ambiguous, and that, by opening up this category and accepting refugees on this basis, millions more will present themselves, as violence against women is endemic and universal. However, there is nothing in the concept of refugee or in the Convention definition that allows for the exclusion of a claim on the basis that it is a persecution shared with large numbers of others. As stated by the former Canadian Refugee Status Advisory Committee: ‘A person is a refugee whether he [sic] is persecuted alone, or persecuted with others. A person need not be singled out for persecution in order to be a refugee. Each claim must be assessed separately.’ Furthermore, they ruled that ‘immigration considerations must not be brought to bear on the application of the refugee definition. The possibility that, if one person is given refugee status, many others might also be entitled to claim refugee status, is not relevant to whether a claimant is a refugee.’19 In the USA, the floodgates argument has been dismissed by the Immigration Appeal Board, which argued that the definition of social group ‘must be given a broad and liberal interpretation in order to protect groups who do not necessarily have political, religious, or racial ties at the root of the persecution’.20 The existence of large numbers of persecuted women does not and cannot disqualify a woman from being a claimant. The only relevant factor must be that it is possible to differentiate her situation from that of the general population. Just as gendered violence is endemic and universal, the existence of political violence is also endemic the world over; yet the fear of large numbers of possible political refugees does not preclude recognition of their plight. South Africa is not the first country to implement such guidelines and the experience of other states adopting similar guidelines attests to the fact that the ‘floodgate’ does not ‘open’. According to UNHCR statistics, the percentage of women asylum-seekers in Canada remained relatively stable across the five-year period from 1989 to 1993. Women comprised approximately 34–39 per cent of asylum-seekers, a figure that includes the period after the implementation of Canada’s gender guidelines. Over the years, this number has not changed significantly, even with the recent acknowledgement of domestic violence as grounds for asylum, a move that has been fiercely contested by anti-immigration groups in the United States and elsewhere again for fears of opening a ‘floodgate’.

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The reason for the relatively small impact of gender guidelines is largely due to the social and political constraints potential asylum-seeking women face. Socially, some cannot leave the home without a male relative, drive a car or travel abroad without their husband’s written permission. Economically, the constraints are even more pervasive. Few women are able to afford to flee their country, especially if they are primarily responsible for dependent children. For those that can, however, there must be a basic state obligation to offer the possibility of protection. Lastly, accepting gender persecution as grounds for asylum does not imply that all such applicants would be granted asylum. Recognising women’s experiences merely affords equality of opportunity. It does not in any way impinge on state sovereignty or require a state to accept more refugees. It is simply a means of reforming the determination process to more accurately and equitably include the experiences of those who form the majority of the world’s displaced persons and refugees.

Impact of Gender Guidelines Globally and in South Africa The adoption of gender-related guidelines is not in itself sufficient to ensure the just treatment of such claims. No matter how comprehensive the directives, they will have little impact if they are not implemented consistently and at all stages in the asylum determination process. While worldwide there has been some improvement in the treatment of women’s asylum claims, as well as a handful of individual cases before the courts, the actual impact of gender guidelines has been limited. Evaluations from Canada, the USA, the UK and Sweden all point to an inconsistent and in some cases limited application of gender guidelines, with Canada being reflected the most positively in these evaluations.21 Efforts to secure better protection for women have also been slowed by the overall global political environment. Efforts to include women in existing international legal instruments have occurred at a time when traditional asylum-destination countries have adopted increasingly restrictive measures, due to domestic pressure, global economic forces and the perceived threats of a post-September 11 world. While there is an emerging recognition in international institutions of the need to gendersensitise immigration procedures, the global shift towards increasingly restrictive immigration policies renders the recognition or mainstreaming of gender-related persecution at a disadvantage. In South Africa, these obstacles have been compounded by problems inherent in the domestic refugee system. Due to a lack of capacity, resource shortages and slow transformation within the Department of Home Affairs, South Africa today has a backlog of asylum cases well in excess of 100,000, as discussed in Chapter 6 of this collection, giving it the dubious honour of being second only to the United States in the total number of backlogged

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cases to be addressed.22 Breakdowns in the proper processing of claims have had gendered consequences; asylum-seekers have often been forced to queue in the streets overnight or in the early hours of the morning to gain access to DHA offices. In a country with one of the highest rates of sexual violence in the world, this puts women asylum-seekers in South Africa at severe risk.

Victims of Trafficking The United Nations estimates that between one and four million women and girls each year have become the victims of traffickers. Most trafficked women have been moved across borders for the purposes of sexual exploitation and prostitution. Given the criminal nature of this industry, exact figures are difficult to obtain, although evidence that is available points to a continuing and rapid increase in trafficking globally. In part, this increase has been fuelled by ever more protectionist immigration policies in the industrialised world. As borders shut down, traffickers inadvertently benefit as they become the only agents able to facilitate international migration, in particular for women and children. The UN Special Rapporteur on Violence against Women has, indeed, expressed specific concern about the ‘apparent link between protectionist, anti-immigration policies and the phenomenon of trafficking’.23 The focus of such debates has been on criminalising and prosecuting traffickers. This has in turn led to the criminalisation of the victims themselves as sex workers and illegal immigrants. Where measures have been provided for the protection of victims of trafficking, they have often been limited to offers of temporary residence to allow victims to testify against their traffickers. Such measures amount to a merely functional benefit for the state, rather than a policy of protection for victims of trafficking. The Trafficking Protocol (2000) stipulates that trafficked women and children should be treated as victims by the state they are found in, and offered protection rather than criminalised and automatically deported. Victims of trafficking may face serious repercussions upon return to their home countries, including retaliation from the trafficking rings, severe ostracisation and persecution by their communities and an increased risk of being re-trafficked. They may therefore have valid claims to refugee status and should be given an opportunity to make a claim. Canada is an example of best practice in their treatment of trafficking victims, who have been determined to fall within Canada’s interpretation of the Refugee Convention; asylum has been granted in a number of cases. In South Africa, current legislation provides that victims of trafficking can be prosecuted for prostitution and illegal entry into the country. In an effort to redress the situation, the South African Law Commission (SALC) proposed a bill in 2006 to deal with trafficking in a way that would focus

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both on punishing the perpetrators and on making provision for the victims. The proposed Bill would give powers to the prosecuting authorities to decide if the alleged offences were committed as a result of being trafficked and would provide for a non-renewable suspension of a victim’s deportation period in order to allow them time to recover. This stay of deportation would not be dependent on whether a victim of trafficking decided to assist in the investigation and prosecution of their trafficker. The Commission also acknowledged that some victims of trafficking may never be able to return to their countries of origin and suggested that the Refugees Act be amended to provide permanent residence for such individuals.24

The Proposal for ‘Refugee Reception Centres’ and its Particular Impact on Women25 Since the Refugees Act came into force, the Department of Home Affairs has at various stages brought forward proposals to establish ‘reception centres’ for refugees, both as a general policy for all new arrivals of asylumseekers and in response to specific situations, such as a possible mass influx from Zimbabwe. Such proposals have been fraught with problems, as discussed in Chapter 8 of this collection, including specific implications for women refugees. Paramount among these concerns is the safety of women within such centres, which although given a different label, would most probably resemble traditional refugee camps, and would therefore face the same difficulties these camps have generated. These issues include health risks, heightened vulnerability and risks for women living at close quarters with strangers, and the probability of increased violence against women. Protection and security are the most basic responsibilities the international community bears towards refugees. For women, this protection is doubly important as they are more vulnerable to abuse and violence (particularly in situations of war and flight). In the context of survival within countries of asylum, many women find that upon arrival, they actually face increased insecurity in their host country as a result of procedures used to process and house refugee claimants. In addition to the threat of violence from strangers now living in close quarters, there is the increased threat of violence from those within the family. According to the UNHCR, recent studies of camps in other parts of Africa have demonstrated that domestic abuse skyrockets in camps, as men feel frustrated by their inability to work and provide for the family. This, coupled with feelings of being incarcerated and helpless, as well as social mores that permit violence towards women, leads to high levels of domestic violence. The proposed centres, as well as any proposed assistance programmes would have a direct and negative impact on women if they did not take into account the specific needs of female refugees. For example, the placement of physical facilities (such as washing facilities) could lead to an increase in

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security problems (if women were obliged to use ablution facilities close to those supplied for men). The risk of violence would be heightened by the herding together of individuals fleeing situations of intense fear and stress. Many refugees suffer from symptoms of post-traumatic stress disorder, which can be exacerbated by feelings of incarceration and helplessness induced by the conditions of camps or centres. The UNHCR has noted that ‘prolonged stays in camps can lead to a breakdown in law and order’.26 Such lawlessness is likely to present a greater danger for the most vulnerable elements of society – namely women and children. The lack of provision made for health care in the Department’s proposals is also problematic, as it would remove an important and primary front-line of protection for women. It is often health-care workers who detect abuse within places of settlement, when women who are affected seek medical care. If a reception centre is to be set up, every effort must be made not to replicate the mistakes made in traditional camps, which have exposed women to greater risks of abuse. As far as possible, the recommendations outlined in the UNHCR’s Guidelines on the Protection of Refugee Women pertaining to physical planning and assessment procedures, as well as service provision, should be followed. Specific care should be taken in addressing the protection needs of women separated from their families, unaccompanied girl children, disabled women and elderly women. Staff at the centres should ensure that there are women staff members available at all times and that adequate security and lighting are provided.

Conclusion South Africa stands in the unique position of being able to present the global community with a crucible for the development of humane and farsighted refugee law and policies. Our Constitution and the Refugees Act grant us the potential to be at the cutting edge of debates and issues pertaining to refugee rights. However, we are still burdened by a past of flagrant human rights violations, and, as a nation, much of our cultural heritage is profoundly patriarchal. Women and children, who bear the brunt of apartheid’s legacy, face a future in which their rights still need to make the shift from moral and legal principle to everyday practice. There is a degree of irony in woman refugees seeking asylum in a country that has the abysmal distinction of being one of the most dangerous places in the world for a woman to live. By applying appropriate gender guidelines to the cases of refugee women and training officials in gender sensitivity, we will not be assigning women refugees ‘special privileges’, but broadening the level of awareness of gender issues in our society as a whole, thus enriching it. We run the very real risk of presenting women refugees from countries in which they are seen as inferior to men, and are threatened with a broader

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range of harm than their male compatriots, with officials and a culture that are deeply patriarchal and that further dehumanise women who are already vulnerable. It is essential that we do not add to the oppression so many women already endure through the asylum-seeking process. Instead, officials can contribute to the smooth and equitable running of this process by broadening their own cultural horizons and putting gender-equality principles into practice. In the long term, this can only benefit us all.

Notes 1. In the first three months of 2006, the Refugee Affairs Directorate reported that of the 18,800 applications for asylum it had received, 76 per cent were from men and 21 per cent from women (remaining 3 per cent unaccompanied minors). This is in line with the gender breakdown provided by UNHCR in its 2003 Statistical Yearbook which showed that of the total ‘population of concern’ in South Africa, 79 per cent were male and 21 per cent were female. UNHCR, Statistical Yearbook: Trends in Displacement, Protection and Solutions, (Geneva, 2003). 2. In South Africa the gender guidelines have never been utilised officially by DHA officials, although external trainers who have conducted training for the DHA have reported having used the guidelines on their own initiative. 3. United Nations High Commissioner for Refugees Executive Committee Conclusion No. 39, Refugee Women and International Protection (Geneva, 1985). 4. UNHCR, Executive Committee Note on Refugee Women and International Protection (Geneva, 1990). 5. UNHCR, Guidelines on International Protection No.2: “Membership of a Particular Social Group within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugee,(Geneva, 2002). 6. N. Markard, ‘Gendered Violence in “New Wars” – Challenges to the Refugee Convention’, in Women and Immigration Law: New Variations on Classical Feminist Themes, ed. S.K. van Walsum and T. Spijkerboer (London, 2005). 7. United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (Geneva, 1979) para. 51. 8. K. Makiya, ‘Rape in the Service of the State: Power and Patriarchy in Iraq’, The Nation (1993), cited in T.S. Schenk, ‘A Proposal to Improve the Treatment of Women in Asylum Law: Adding a “Gender” Category to the International Definition of Refugee’, Indiana Journal of Global Law Studies 2 (1994). 9. Sunday Times, 1 September 2002. 10. Of a total of 108 armed conflicts that took place during 1989–98, ninety-two occurred exclusively within the boundaries of a single country – i.e. as civil conflicts. This has direct consequences for the assumptions of state persecution that underpin the 1951 Convention. Margareta Sollenberg, ed. States in Armed Conflict 1998, Report 54, Uppsala University (Uppsala, 1998). 11. Velasquez-Rodriguez case (case 7920, judgment of 29 July 1988) in O’Hare, U.A. ‘Realizing Human Rights for Women’, Human Rights Quarterly 21 (1999):.365. 12. UNHCR, Handbook (1971) above n 8, para. 65. 13. UNICEF, Female Genital Mutilation/Cutting: a Statistical Exploration, (New York, 2005). 14. C. Bunch, ‘Women’s Rights as Human Rights: Towards a Revision of Human Rights’, Human Rights Quarterly (1990). 15. UNHCR, The State of the World’s Refugees: In search of solutions (Oxford, 1995).

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16. UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1979). 17. P. Goldberg, ‘Asylum Law and Gender-Based Persecution Claims’, Immigration Briefings (1994), 94–99. 18. L. Heise, ‘Crimes of Gender’, World Watch, March/April (1989): 13. 19. Minister of Employment and Immigration, New Refugee Status Advisory Guidelines on Refugee Definition and Assessment of Credibility (Pretoria, 1982). 20. Re Reguena-Cruz, IAB (4/8/1986). 21. See, for example, H. Crawley and T. Lester, Comparative analysis of gender-related persecution in national asylum legislation and practice in Europe UNHCR (London, 2004) and S. Ceneda and C. Palmer, ‘Lip service’ or implementation? The Home Office Gender Guidance and women’s asylum claims in the UK Asylum Aid (London, 2006). 22. UNHCR, 2005 Global Refugee Trends: Statistical Overview of Populations of Refugees, Asylum-seekers, Internally Displaced Persons, Stateless Persons, and other Persons of Concern to UNHCR, (Geneva, 2006). 23. UNHCR, Guidelines on International Protection: Gender-related Persecution within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees (Geneva, 2002). 24. ‘Trafficking in humans comes under spotlight’, Pretoria News, 9 May (2006). 25. See also Chapter 8 of this collection. 26. UNHCR, Guidelines on the Protection of Refugee Women (Geneva, 1991), 48.

11 REALISING RIGHTS: THE DEVELOPMENT OF HEALTH AND WELFARE POLICIES FOR ASYLUM-SEEKERS AND REFUGEES IN SOUTH AFRICA Florencia Belvedere, Piers Pigou and Jeff Handmaker

 Introduction There is currently no coherent government policy dealing with health and welfare service provision for refugees and asylum-seekers. In addition, there is no central point of contact where asylum-seekers and refugees can turn for information or for service provision. This chapter reports the findings of a UNHCR-commissioned study that begins to provide some background to address these policy and service provision gaps.1 This chapter and the underlying study specifically focus on the provision of health and welfare services for refugees and asylum-seekers. In terms of health, the study sought to address access both to primary health care and to hospital services and, regarding welfare services, the study focused primarily on access to food, shelter and social security. It was based on the views provided by relevant government officials, refugees, asylum-seekers and service providers. The chapter also incorporates certain key findings from the 2003 National Refugee Baseline Survey conducted in South Africa of ‘primary’ African asylum-seekers and refugees, which profiled the socioeconomic and welfare conditions facing these communities.2

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Two main methods of data gathering were used to collect data for the study. Primary data were collected in Gauteng and the Western Cape through a series of in-depth interviews with government officials at national, provincial and local levels, as well as service providers and NGOs working in the field. In addition to primary data, secondary data regarding the experiences of other countries in addressing this issue was used to supplement the findings of this study. The main argument of this chapter is that, despite recent improvements, there is inadequate access to health and welfare services for asylum-seekers and refugees in South Africa and that a major reason for this inadequate access is the lack of a coordinated and integrated government policy that incorporates their needs. Barriers to access public health and welfare services need to be understood within the context of limited access for asylum-seekers to work and study opportunities. As detailed elsewhere in this volume, until April 2000, when regulations for the Refugees Act came into force, people who sought asylum in South Africa were treated according to the Aliens Control Act of 1991. While individuals waited for their refugee status to be determined by the Department of Home Affairs, they were given Section 41 permits that allowed them to both work and study. However, while granted the right to work, this did not mean that they were able to obtain gainful employment. With the adoption of the Refugees Act of 1998, and the introduction of the Section 22 asylum-seekers’ permits, asylum-seekers were initially not allowed to work or study for the first six-month period during which their refugee status was being determined. However, during the latter part of 2002, the Legal Resources Centre (LRC) in Cape Town sought to challenge the constitutionality of the work and study prohibition. On 15 November 2002, the Cape High Court issued its first order declaring the prohibition on work and study inconsistent with the South African Constitution, and therefore invalid. Subsequently, the Department of Home Affairs filed an appeal against the Cape High Court’s judgment and order. In response to this appeal, LRC brought a second court application asking the Cape High Court to ensure that its order of 15 November 2002 remained in full force and effect pending the Supreme Court of Appeal’s decision on the appeal that was filed. On 12 December 2002, the Cape High Court granted the LRC’s second application. However, it was only in March 2003 that a directive was issued by the Department of Home Affairs to lift the prohibition completely. Despite of this progressive development, asylum-seekers and refugees continue to find it extremely difficult to find employment or study.3 The unwillingness, coupled with ignorance, of employers to recognise asylum and refugee permits as valid documents, the short duration of asylum permits, and the lack of proper identification documents issued to asylum-seekers and refugees continue to militate against their finding gainful employment. The inability of asylum-seekers and refugees to access employment and thus support themselves financially gives added importance to the access of

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asylum-seekers to health and welfare services. In order to formalise the presence of recognised refugees in the country, the Department of Home Affairs announced in May 2001 a policy that refugees would be issued with identity documents valid for a period of two years. However, as of August 2003, only 11 per cent of recognised refugees from Africa had been issued with formal identity documents.4 The documents issued to recognised refugees are maroon in colour, rather than green like those issued to South African citizens and permanent residents, and generally not recognised by employers or government officials outside of the Department of Home Affairs and the South African Police Services. Moreover, since these documents are only issued to recognised refugees and not asylum-seekers, asylum-seekers continue to face difficulties in trying to access health and welfare services as a result of the inadequate nature of their documents.5

Health and Welfare Provision for Refugees – The Legal Framework International Refugee Law At the Fifty-first World Health Assembly, organised by the World Health Organisation (WHO) of the United Nations in May 1998, an important declaration was made that reaffirmed member states’ commitment to the WHO’s constitutional principle that the ‘enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being’. Health has been internationally recognised as being more than suffering from disease or infirmity, but encompasses ‘a state of complete physical, mental and social well-being’, and the international community, through the WHO, has progressively sought to realise this fundamental right to health through its member states. Over the last fifty years, there have been a number of positive developments at an international level in the promotion and protection of human rights. In this process, certain marginalised and vulnerable groups have been identified for specific attention and protection. These include women, children and the disabled, as well as those seeking refuge from persecution or conflict in their home countries. In terms of the latter, two key conventions set out the international framework for the protection of asylum-seekers and refugees in Africa. These are the United Nations Convention relating to the Status of Refugees of 1951 and the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (1969). South Africa acceded to the UN Convention and Protocol in January 1996, without making any reservations, and signed and ratified the OAU Convention in December 1995. Further, the UNHCR, through its Executive Committee, which acts as the main policy body responsible for making decisions, has adopted a series of relevant Excom Conclusions.6 While the Conclusions are not legally

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binding on the signatories to the Conventions, they provide important guidelines for the protection of refugees, particularly women and children, and the interpretation of the Conventions.

International Human Rights Law Complementary to the specific refugee conventions, other international human rights instruments provide additional guarantees and protections for asylum-seekers and refugees. Those of specific relevance to refugees include the Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), Convention on the Rights of the Child (CRC), African Charter on Human and Peoples’ Rights (ACHPR), African Charter on the Rights and Welfare of the Child (ACRWC) and UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). South Africa has signed and ratified all of these international treaties, with the exception of the ICESCR, which has been signed, but not ratified. It is therefore legally bound by the provisions contained within them.

Existing Domestic Legal Instruments The South African Constitution, in its Bill of Rights, contains several clauses that protect the rights of ‘everyone’ in the country, and not just every citizen, to have access to health care and welfare services. With regard to health, section 27(1) protects the right to health care services, including reproductive health care, while section 27(3) protects the right to emergency medical treatment. More specifically, every child, regardless of country of origin, nationality or legal status, has the right to: basic nutrition, shelter, basic health care services and social services (section 28(1c)). With regard to welfare, section 27(1b) protects the right to access to sufficient food and water, section 26(1) protects the right to have access to housing, while section 27(1c) protects the right to social security and appropriate social assistance. In addition to section 28(1c) mentioned above, every child has the right to family care or parental care, or to appropriate alternative care when removed from the family environment (section 28(1b)); and to be protected from maltreatment, neglect, abuse or degradation (section 28(1d)). Moreover, in broad terms, the Constitution protects the right of everyone to have their dignity respected and protected (section 10), the right of everyone to be equal before the law and the right to equal protection, including their full and equal enjoyment of all rights and freedoms (sections 9(1) and 9(2)). Constitutional provisions that prohibit discrimination (section 9(3)) and that safeguard equality represent an important avenue to pursue the extension of rights to non-citizens, since they seem to allow

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asylum-seekers and refugees to enjoy the rights and freedoms contained in the Bill of Rights in the same way as ordinary South Africans. In addition, section 27(g) of the Refugees Act of 1998 explicitly protects the right of every refugee to the same basic health services that South Africans receive. This Act does not expressly make provisions for access to social services, except for children in need (section 31(a)) and mentally disabled persons (section 31(b)). However, these protections, as well as broader protections on health, are extended in the Act to all refugees as part of their enjoyment of full legal protection, including the rights set out in the Bill of Rights of the Constitution. Most of the rights highlighted above, except for some pertaining directly to children, are ‘access’ rights and therefore subject to limitations and conditional on the availability of a state’s resources. At present, jurisprudence on socio-economic rights is limited; however, a recent constitutional court case found it unconstitutional for permanent residents who qualified for social assistance to be excluded as a group from receiving such assistance. While this important case highlighted that some socioeconomic rights are not limited to citizens, their extension remains nonetheless circumscribed by the financial ability of the government to extend this assistance to both citizens and non-citizens.

A Hierarchy of Rights? The 1993 Vienna Declaration and Programme of Action asserted that ‘all human rights are universal, indivisible, interdependent and interrelated’. The Declaration further stated that ‘the international community must treat human rights globally in a fair and equal manner, on the same footing and with the same emphasis’.7 There has been a tendency amongst some refugee specialists to talk about ‘protection’ and ‘assistance’ as if they were completely different functions. Yet the provision of assistance can legitimately be described as a form of human rights protection, in the sense that ‘everyone’ receives the benefits of most human rights provisions, including the right to be free from hunger, to be educated and to have adequate shelter.8 Described by some as second-generation rights, economic and social rights have gained increasing prominence over recent years. Consequently, the notion that different (sets of) human rights are indivisible has received increasing support. The preamble of the African Charter on Human and Peoples’ Rights (ACHPR), for example, explains that ‘the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights’. Similarly, according to the United Nations, economic and social rights are ‘designed to ensure the protection of people as full persons in such a way that they can enjoy rights, freedoms and social justice simultaneously’.9 These rights aim to ensure that everyone has access to

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resources, opportunities and services for an adequate standard of living, and are of particular relevance and importance to vulnerable and marginalised groups, such as asylum-seekers and refugees.10 As such, they are also complementary and integral for the promotion and protection of civil and political rights.

Special Protection for Refugee Children in International Law Asylum-seeker and refugee children are identified as a particularly vulnerable subgroup within the refugee category. In particular, over half the refugee population in Africa are children.11 As a vulnerable grouping, they require special attention for their needs and development as children, but also need additional attention as ‘they are most vulnerable with dislocations and by design of refugee settings. They face far greater danger to their safety and well being than average children.’12 In this regard, attention is drawn to UNHCR Conclusion No. 84. As inferred in this Conclusion, for many such children their economic and social situation cannot be isolated from that of their families. Consequently, it is argued that ‘one of the best ways to protect rights of refugee children is to protect the rights of their families’. Whilst recognising their particular situation and vulnerability, any discussion on refugee children’s economic and social rights ‘requires to be discussed with their adult counterparts’.13 In addition to the guidelines provided by the UNHCR, international law supports and strengthens the rights of refugee children where refugee law cannot, as discussed in greater detail in Chapter 8 of this collection.

Current Provision of Health Services Comparative Perspectives on Health Care Provision: Towards Interdependence Policy providing for health and welfare provision is an integral part of the overall protection that should be afforded to asylum-seekers and refugees. Further, there is a growing consensus regarding the indivisibility of rights, an issue that some countries such as South Africa have explicitly recognised.14 In the practical context of health rights, this indivisibility of rights considers health and human rights as part of ‘an interdependent phenomenon’.15 Furthermore, in practice, assistance and refugee protection issues are not only difficult to distinguish; they ‘have tended to mingle’.16 Indeed, intergovernmental agencies and an increasing number of host countries have acknowledged the need for a holistic approach. In an urban, non-camp refugee situation such as that found in South Africa, where the main responsibility for the well-being of asylum-seekers

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and refugees lies with the South African government and where asylumseekers and refugees find it extremely difficult to eke out a living, the failure of the government to extend social services to the most vulnerable asylumseekers and refugees creates a fundamental protection problem. As discussed earlier, states are legally bound to certain principles in international law entrenching the right to health, including those contained in internationally and regionally binding Conventions.17 However, beyond legally binding obligations, states often go further to ensure that their policies are consistent with international and regional standards, or ‘best practice’. In this sense they look to documents from specialist United Nations agencies such as the UNHCR (e.g. Notes on International Protection, Excom Conclusions, etc.) or World Health Organisation (e.g. Declarations) for guidance. Gravitating towards the ‘Convention Standard’, host countries have more or less guaranteed recognised refugees the same access to health care as that extended to nationals. Some states have even gone so far as to explicitly recognise this in official policy.18

Having the Right and Enjoying the Right: Gaps between Policy and Practice As with many aspects of these debates on rights entitlement, the policy may look good, but it simply does not translate well in practice. Refugees often ‘fall through the cracks’ in national health and welfare systems, and access to appropriate services is not always guaranteed, often for bureaucratic reasons.19 There are also obvious political reasons why refugees receive low priority, particularly in the context of countries such as South Africa, where health and welfare provision for the general population remains extremely uneven, and where the focus of the government has fallen squarely on addressing the needs of citizens first and deferring those of other groups that might be just as vulnerable. One initiative designed to promote and monitor the progress of government in realising socio-economic conditions is the National Action Plan (NAP). The NAP is the South African government’s response to the recommendation of the Vienna Declaration and Programme of Action aopted at the World Conference on Human Rights in Austria in 1993 ‘that each State consider the desirability of drawing up a national action plan identifying steps whereby the State would improve the protection and promotion of human rights’.20 Launched on the fiftieth Anniversary of the UDHR, the NAP is a national initiative designed to ‘address the legacy of the past by implementing practical and attainable plans for the protection and promotion of human rights’.21 Adopted in 1998, the NAP represented the South African government’s main human rights policy document, setting out in broad brushstrokes what needed be achieved over the next five years (up to 2003). However, eight years on from when the NAP was launched,

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there is still no effective monitoring body within government to determine exactly what has been done. Other issues that arise have a lot to do with failures to communicate, often for reasons of language difficulties,22 but also due to cultural differences. In this sense especially, the role of NGOs in the provision (globally) of assistance to refugees is crucial. As Guy Goodwin-Gill puts it, ‘effective protection demands a purposeful degree of co-operation, by no means limited to states or international organizations’.23 NGOs often play a role as ‘implementing partner’ of UNHCR, though in South Africa this is mainly limited to the provision of legal services. NGOs can also play more prominent roles where the long-term health and welfare needs of refugees require specialist attention in the delivery of services or where NGOs are needed to ensure access to health care (e.g. through the provision of cultural/linguistic interpretation).24 In this regard, NGOs can play a considerable role in bridging the gap between the refugee community and health service providers.25 Some of these NGOs aim to ‘mainstream’ health care accorded to nationals with refugees, a process involving both training/capacity building and assistance in the development and refinement of policy.26 These efforts of NGOs generally involve coordination with local health authorities. In South Africa, however, these efforts are currently limited and require considerable further development.

Moving Beyond Principles In short, comparative experiences in host countries show that there are various reasons why refugees receive inadequate health care, for reasons that are not always resource-related, ranging from limitations in the policy itself to inadequate communication and limited recognition of trauma issues. The systems and approaches that seem to work best are those that are inclusion-oriented. Access to permanent residence ought not to be a condition for access to adequate social services.27 Simply establishing a policy based on general principles or limited to initial reception in the country (health screening) is clearly not enough. International guidelines28 have all concluded that more comprehensive, holistic approaches to health care are essential to adequately meet the health needs of refugees and indeed those of nationals in the host country. Furthermore, ensuring that refugees receive adequate health care is an obligation that can be logically linked to a host country’s commitment to extend protection to refugees in general.29

Health Care Provision for Asylum Seekers and Refugees in South Africa There is general agreement amongst health officials at national, provincial and local levels that there is currently no policy at any level that specifically

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addresses the issue of access to health care for asylum-seekers and refugees. According to one of the legal advisers within the National Department of Health, for the past several years, there has been no policy because ‘it is not a priority issue … [T]he department is putting through lots of legislation on HIV/Aids, dealing with the cholera outbreak and allocations of health personnel.’30 Health officials in the Gauteng and Western Cape provincial Departments of Health further echoed this sentiment. In the words of the Superintendent General of the Gauteng Health Department, ‘there is no flood of refugees coming to the facilities, so it is not high on the priority agenda’.31 It is important to point out these opinions because, contrary to commonly held stereotypes, refugees and asylum-seekers do not seem to be ‘flooding’ health services as often conveyed in the media32 and expressed by the general population.33 Indeed, a much bigger problem in terms of overwhelming the existing capacity of provincial hospital services results from South African citizens who are resident in one province crossing into another province to access hospital services. This puts an added strain on provincial hospitals because the resources allocated are based on the population figures for a particular province and therefore they do not cater for the inter-provincial use of hospitals. Consequently, as one of the legal advisers to the Western Cape Health Department pointed out, ‘there is no policy [on asylum seekers and refugees] … the numbers of refugees are dwarfed by the numbers from internal migration’.34 In other words, it is not regarded in some quarters as a priority issue. In the absence of such a policy, a former Director General of the National Department of Health indicated that health care policy and practice vis-à-vis refugees and asylum-seekers should be guided by constitutional and other domestic legal obligations and international instruments. Even though the National Health Act of 2003 does not expressly deal with access to health care for asylum-seekers and refugees, he argued that there is room to clarify these matters through guidelines or regulations. The provision of health care for asylum-seekers and refugees arose in discussions about the implementation of the national primary health care programme with the Departments of Home Affairs and Foreign Affairs in 1996. The National Department of Health agreed that both asylum-seekers and refugees would be allowed access to health care. Furthermore, the issue was raised in the context of provision of services at public hospitals and it was also agreed that refugees and asylum-seekers would be dealt with in the same way as ordinary South Africans.35 In the last couple of years, the issue arose once again specifically in relation to the provision of anti-retroviral treatment (ART) for recognised refugees who are HIV-positive.36 While great strides have been made in the provision of non-emergency health care for asylum seekers and refugees and in the extension of ART to recognised refugees, African asylum-seekers and refugees continue to be refused emergency medical care at public hospitals.37

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Access to Primary Health Care While the official view amongst national, provincial and local Health Department officials remains that there is ‘no discrimination or distinction based on whether a person is a South African citizen, an asylum seeker or a refugee’38 and even that ‘anybody who walks into the local authority clinics gets treatment’,39 the practice towards ‘foreigners’40 as experienced by service providers until very recently has been rather different. At the time when much of this research was conducted in 2001, asylum-seekers and refugees faced substantial difficulties in accessing primary health care in the absence of a policy that recognised their identification documents. After many years of lobbying and advocacy by NGOs, supported by the UNHCR, asylum-seekers and refugees are increasingly more able to access primary health care services without being turned away as a result of the non-recognition of their documents. However, they nonetheless continue to face language barriers, xenophobic attitudes by health care staff and the inadequate provision of specialised services, such as trauma counselling, for asylum-seekers and refugees who might require them.41 According to the Human Rights Committee (HRC), a former NGO in Johannesburg that had once offered referral facilities, the main diseases that asylum-seekers and refugees need attention with are malaria, followed by meningitis and TB, while a large proportion of asylum-seekers need trauma counselling. Their situation in this regard can be compounded by their experiences with the Department of Home Affairs and other governmental and non-governmental agencies. As representatives from the HRC argued, ‘there are people who have lost their loved ones or have lost their selfesteem. Some have mental disturbances and many feel humiliated and treated “like a child”.’42 Asylum-seekers and refugees who need trauma counselling are referred to the Trauma Clinic, which is run by the Centre for the Study of Violence and Reconciliation (CSVR), another NGO in Johannesburg. The Trauma Clinic has dealt with an increasing number of asylum-seekers and refugees, but has limited funding, which, along with practical difficulties such as language, confines its ability to develop its services. In Cape Town, health assistance is provided for asylum-seekers and refugees by the Cape Town Refugee Centre (CTRC), an NGO that receives some financial assistance from UNHCR. The CTRC provides assistance to buy medicines, buys spectacles at a minimum amount and contributes towards other medical expenses. These services, however, are mostly provided for new arrivals in the form of short-term ‘emergency services’. Those needing assistance with trauma counselling are referred to the Trauma Centre in Cape Town.43 It is important to note that, as with the CSVR’s trauma clinic in Johannesburg, the Cape Town clinic also operates under considerable resource constraints. It is therefore unlikely that the available provision of services in this regard meets the required needs.

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Access to Hospital Services The Minister of Health has indicated that refugees and asylum-seekers should be dealt with in the same way as destitute South Africans with regard to provision of services at public hospitals. Due to budgetary constraints, however, the Health Department believes that everyone must pay for these services where possible, especially where non-emergency care services are at stake. Based on the Constitution, everyone has a right to emergency medical care irrespective of economic considerations or possession of the correct documentation. In terms of general treatment, or non-emergency care, patients are means-tested and are expected to pay according to their income. This excludes children under six, as well as pregnant women, who based on a Presidential Proclamation receive free services at any state hospital.44 In addition, the state health system makes provision for health care for the indigent population. For instance, if a person cannot afford to pay, then the person must make a special representation to the hospital indicating that he or she cannot afford to pay.45 This process may therefore require the applicant to make attempts to locate and obtain external assistance.46 With regard to identification for general treatment purposes, a former Director General for Health stated that some sort of ID is required at hospitals. However, he was of the belief that within the Health Department there is agreement that a variety of identification documents can be used for registration purposes.47 The lack of clarity on this issue can often lead to hospital administrative personnel making decisions based on their own personal interpretations, thus possibly refusing asylum-seekers and refugees access to hospital services. Due to the lack of clear policy guidelines on this issue, the Health Department recognises that: ‘at present, we have a reactive delivery of services. There is no referral system information. There is no sense of what happens at provincial and district level in terms of attitudes of staff or level of knowledge of staff about legal documentation [of refugees and asylumseekers]. The national department needs to address these shortcomings.’48 Keeping in mind broader public health concerns, it was stressed that the national department should facilitate provision of health care, not only for refugees and asylum-seekers but also for foreigners in general. This is particularly relevant in relation to the identification and treatment of diseases such as malaria, cholera, yellow fever and HIV/AIDS. In efforts to contain the spread and to provide treatment for these diseases, ‘South Africa cannot discriminate against foreigners’.49 In addition and in terms of international health regulations, all foreigners must be checked at point of entry if they come from yellow fever areas, for example, to ensure that they have adequate inoculations.50 This raises particular concerns regarding asylum-seekers who do not come into South Africa through official points of entry but whose first contact with South

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African authorities is at the Refugee Reception Offices of the Department of Home Affairs. These offices are in Pretoria, Johannesburg, Durban, Port Elizabeth or Cape Town, and contact is usually made only several days after entry into the country. Provincial health officials echoed the views of national health officials, affirming that access to hospital care for refugees and asylum-seekers is effectively a resource-based issue. In Gauteng province, the issue of foreign patients had been discussed at a Health Department management level and there was a principled agreement that these patients should be treated as indigent South Africans. As such, no specific focus has been placed on asylum-seekers and refugees. This does not mean that treatment will automatically be provided, and any treatment given will be subject to a range of variables. A few years ago, for example, the Gauteng Department of Health had to deal with the case of a refugee patient who needed access to expensive dialysis treatment. The State Attorney wrote to the Gauteng Department of Health indicating that they could not discriminate on the basis of status.51 While the refugee’s lawyer wanted his client to be put on permanent dialysis treatment, the department held that the client did not meet all the disease conditions. Had he been able to meet the criteria, then he would have been put on the long waiting list for permanent dialysis. These are the conditions applied to South Africans. Asylum-seeker and refugee patients have been treated in public hospitals. Beyond noting this, however, the issue of access to hospitals for asylumseekers and refugees ‘requires more discussion … managers deal with many issues. There is no flood of refugees coming to the facilities so it is not high on the priority agenda.’52 Similar perspectives were felt at the local Health Department levels. As with primary health care, service providers also disclosed a different picture regarding access to hospital care. The Roll Back Xenophobia Campaign, an initiative supported by the South African Human Rights Commission (SAHRC) and the UNHCR, conducted a series of workshops with provincial-level health officials and personnel (as well as NGOs and UNHCR) around the health rights of refugees and migrants. Workshops were held in Johannesburg, Port Elizabeth and Durban in the latter part of 2000. Health personnel attending the workshops indicated that there is no clear policy that guides the access to hospital care for asylum-seekers and refugees. They confirmed that hospitals use their own discretion in terms of access given and treatment provided, and pointed out that administrators do not follow clear guidelines. In this regard, the issue of documentation is often used to the disadvantage of asylum-seekers and refugees. As stated in the report from the workshops, ‘it is often the gatekeepers (front desk clerks) without medical training, who make decisions they shouldn’t make’.53 This situation is compounded by the confusion surrounding tourists and asylum-seekers/refugees and the expectation on the part of some hospital

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personnel that asylum-seekers and refugees should put down a deposit before receiving non-emergency care.54 Workshop participants also indicated that health care practitioners are not aware of the rights of refugees and asylum-seekers. This lack of knowledge from the service providers is mirrored by a lack of knowledge amongst refugees and asylum-seekers regarding the availability of health services and their rights of access. This lack of information seems to be compounded by the generally negative attitude of health providers. In terms of language issues, workshop participants stated that due to language barriers and the lack of interpreters, refugees and asylum-seekers often have difficulty in articulating their illnesses. In some situations where interpreters have been used, there have been cases of interpreters compromising the confidentiality of patients.55 The above examples illustrate some of the differences between ‘official’ policy and practice. The nature and extent of the problem, however, are not clear, and are compounded by the fact that there is no monitoring of the activities of health personnel on the ground by higher health structures. The Johannesburg-based Coordinating Body of Refugee Communities (CBRC) indicated that issues of status determination, as well as safety and security, have been more salient for their members than health and welfare issues. Part of this prioritisation might be linked to the fact that refugee communities have tried to find their own individual ways to cope with the inefficacies of the public health system. Asked about the use of public health facilities by asylum-seekers and refugees, CBRC indicated that, if people have no choice, they go to the public sector for care. However, one of the main constraints in using public facilities is the issue of language. As one of the representatives put it, ‘What good is it to have access, if you do not have translation?’56 In addition, CBRC commented that asylum-seekers and refugees often face different practices in consultation from what they are used to in their own countries and this often discourages them from seeking health care from public facilities. For instance, concerns were raised by some asylum-seekers and refugees that doctors or nurses were not conducting thorough physical examinations, and that they were not touching or ‘feeling’ them to assess what is wrong. The fact that doctors or nurses simply take notes and prescribe medication was construed by some as a reflection of inadequate treatment. For this reason, some within the asylum-seeker and refugee communities have begun to save money collectively in order to go to private doctors.57 This points to a problem that might not be faced only by asylum-seekers and refugees. It is likely that the lack of satisfaction with the public health services being provided is also pushing South Africans to seek private health care. CBRC emphasised the importance of cooperation and communication between health authorities and asylum-seeker and refugee communities. In particular, CBRC gave the example of the lack of asylum-seeker and refugee

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participation in a polio campaign that was undertaken in Hillbrow, Johannesburg, some time ago, as a result of asylum seekers and refugees being suspicious of government initiatives.58 Besides CBRC, other entities such as Jesuit Refugee Services (JRS) in Johannesburg refer asylum-seekers and refugees primarily to Johannesburg General Hospital. For disability treatment, Johannesburg General Hospital often refers patients to Baragwanath Hospital. According to JRSJohannesburg, patients who are referred pay similar fees to those paid by ordinary South Africans to receive treatment. JRS covers these hospital costs if they referred the patients.59 According to JRS-Pretoria, there are three main hospitals to which asylum-seekers and refugees go. One of them is Pretoria Academic Hospital. In Pretoria, JRS has not experienced any problems with the referral of asylum-seekers and refugees from clinics to hospitals. However, at Pretoria Academic Hospital there has reportedly been negligence and concerns that the quality of their treatment towards asylum-seekers and refugees is decreasing. Once again, the vagaries of personal prejudices and interpretation of rules and regulations can influence whether or not treatment is provided. As the representative from JRS-Pretoria put it, ‘it depends on who is at [the] reception. They might send people somewhere else.’60 In addition, JRS pointed out that asylum-seekers and refugees do not benefit from interpretation services. In Cape Town, the Cape Town Refugee Centre mainly acts as a referral point for refugees and asylum-/seekers. CTRC seems to have a good working relationship with hospitals in the Greater Cape Town area. In cases where asylum-seekers or refugees have needed major operations, the CTRC has sent appeals to the respective hospitals to exempt the asylum seeker or refugee in question from payment for the treatment received.61 Besides access to health care, some NGOs have highlighted the problems being faced by refugee nurses who have tried to apply for registration with the South African Nursing Council (SANC). After two years of imposing a moratorium on foreign registration, foreigners, including refugees, were allowed to apply for registration with SANC at the end of 2000. According to representatives from Lawyers for Human Rights (LHR), the Department of Health currently allows for the employment of refugee nurses but it requires that they produce a number of documents from their countries of origin for registration purposes, which disadvantage refugee nurses and the conditions that they are faced with.62 One of the prerequisites for registration is full academic transcripts and a letter from the institution where the person received his/her training. ‘As the majority of refugees did not plan to come to South Africa and/or their institutions have been razed to the ground, most of them give up applying for registration.’63 Echoing this sentiment, a representative from LHR argued that ‘as long as the Department does not accommodate the specific needs of refugees on this issue, the problem of non-employment of refugee nurses will continue’.64

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Changes in Health Policy? Practical experience of refugee and asylum-seekers’ access to health care highlights a number of issues that require attention in order to both facilitate and formalise the access of asylum-seekers and refugees to public health care services. The South African Constitution unequivocally states that access to health care should be extended to ‘everyone’ in the country, including asylum-seekers and refugees. The lack of official policy guidelines on this matter, however, appears regrettably to have resulted in existing laws and regulations to be interpreted and implemented on a personalised basis. In considering the formulation of policy guidelines on the matter, we determined that the following aspects needed to be taken into account (further elaborated in the report itself). Information about asylum seekers, refugees and their health rights must be provided. Furthermore, a standardised practice regarding identification documents needs being established along with a policy on payment for hospital services by asylum-seekers and refugees. Such a policy needs to distinguish them from tourists, recognising that asylum-seekers or refugees are often indigent; this must be communicated to relevant administrative personnel at hospital level. Provision must also be made to address language barriers and interpretation. Specialised trauma counselling services must be provided for asylumseekers and refugees in the public health service to supplement those currently provided by NGOs. Indeed, more information generally must be provided for asylum-seekers and refugees on their health rights and there should be greater monitoring of asylum-seekers and refugees’ access to health care. Finally, registration procedures should provide for access by qualified refugee doctors and nurses.

Current Provision of Welfare Services Comparative Perspectives on Welfare Service Provision This is a topic worthy of much more detailed attention than is possible in this chapter. However, it is possible to highlight the experiences of host countries’ approach to both social security (child support, disability and pensions) and as social assistance (food and shelter). Comparative experience has shown that maximising asylum-seekers’ and refugees’ ability to look after themselves, by allowing them to work, is not only a cheaper alternative (particularly important for less developed countries), but also much more humane. It is furthermore an approach that is more consistent with the objectives of the 1951 UN Refugee Convention, notably Article 17.65 However, social assistance in some cases has also proved to be of essential importance, particularly in emergency situations.

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Social Security More developed states, particularly the European Union, have gravitated towards a ‘convention standard’ in ensuring parity between refugees and nationals in terms of access to state benefits. However, as we elaborate further in our report, where distinctions are made, they are done on the basis of legal status (i.e. whether or not one has been recognised as a refugee).

Social Assistance Contemporary thinking on access to social assistance, particularly from the perspective of developing countries, is forming the view that this is, in fact, a right by reference to various binding obligations in international law.66 The authors of a recent report on the subject provide two justifications for this, namely, giving effect to ‘the right to dignity’ and socio-economic rights such as ‘food, health, shelter and education’.67 However, even in wealthy countries, extending social assistance to refugees and asylum-seekers is controversial, with allegations that refugees are ‘freeloaders’. Faced with limited public sympathy to the presence of foreigners and a desire to limit pressures on state welfare systems, governments often impose restrictive/punitive measures in order to deter ‘fraudulent’ asylum applicants. Such measures, however, are proved to have very little effect, as compared with measures addressing ‘root causes’ of refugee movements.68 Debates in this area are not often constructive, generally very polarised and sometimes based on misleading or inaccurate information. The facts are that, despite a limited reception for asylum-seekers and increasing obstacles to entry, asylum applicants are no less deterred from seeking protection in host countries that might potentially provide them with a future that is more than mere survival. Their means of entry, however, are becoming more and more desperate. Asylum applicants are increasingly relying on traffickers and smugglers to gain them entry.69 Needless to say, such unscrupulous operators are generally far less concerned about social conditions extended to asylum-seekers and refugees than they are in recovering their ‘debt’. Comparative practice has shown that, in extending social assistance, states often rely heavily on NGOs and intergovernmental agencies in the provision of emergency assistance. This is particularly the case in less developed states such as Tanzania and Guinea and is also comparable to some less developed EU states, such as Portugal.

Welfare Service Provision to Asylum-seekers and Refugees in South Africa At present there is no policy at any government level to deal with the provision of social welfare services or social security services towards

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asylum-seekers and refugees in South Africa.70 Asylum-seekers and refugees have yet to receive state social assistance on a par with that offered to South Africans. However, as this section of the chapter will show, over the last year, and as a result of ongoing lobbying by NGOs, the South African government has taken some steps to begin the process of inclusion of asylum-seekers and refugees into its welfare service net. According to one senior official in the Directorate responsible for Social Security (in the Department of Social Development), there should have already been draft legislation on provision of services for asylum-seekers and refugees. Unfortunately, however, there was disagreement with the Department of Home Affairs as to who should be responsible for these provisions. A Parliamentary Committee gave the Department of Home Affairs the competency, but unfortunately there is no provision for social relief for asylum-seekers and refugees in the Refugees Act of 1998.71 Beyond the Refugees Act of 1998, the National Department of Social Development did not address the issue of asylum-seekers and refugees directly because they have not been considered ‘a core function of the Department’ and ‘they are not high on the priority list when millions are dying of HIV/AIDS’.72 Several senior officials echoed this sentiment, pointing out that the lead department to deal with these policy matters is the Department of Home Affairs. More specifically, it was suggested that the provision of adequate data regarding numbers of asylum seekers and refugees needing assistance, the financial implications and the costing of services can only be undertaken by the Department of Home Affairs.73 An integral component of this lack of cooperation between the Department of Home Affairs and the Department of Social Development seems to be the fundamental difference in approach to how one should address the provision of social services for refugees and asylum-seekers. For the Department of Social Development, the general emphasis is on the provision of services in an integrated manner. For instance, rather than supporting the setting up of shelters specifically for asylum-seekers and refugees, the Department of Social Development would prefer to support the absorption of these groups into existing shelters that also house South African citizens. This department is wary of a dedicated focus on one or other grouping and looks where possible to incorporate specific concerns within its functions. In contrast, the Department of Home Affairs continues to explore the possibility of setting up separate refugee reception centres for asylumseekers coming into South Africa,74 in remote areas of the country. At the time of writing, the Departments of Social Development and Health had not been consulted on this matter and have not assessed what implications such a development might mean for them. Both departments indicated a preference for an integrated approach and raised concerns that such a dedicated model would be both costly and inefficient.75

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It is worth observing that, in other countries, such as the Netherlands (with far greater resources at their disposal), while the official policy states that asylum-seekers must reside at reception centres while their application is being considered, considerable public pressure from NGOs regarding the deplorable conditions at the centres, coupled with the enormous financial costs involved, has resulted in the ‘reception centre model’ being challenged76 and an increasing number of refugees being permitted to reside outside the centres.77

Access to Welfare Services As highlighted by officials of the National Department of Social Development, even though a range of limited monthly social assistance grants (disability, old age, child support grants, amongst others) are provided for vulnerable South Africans, these are not available to refugees and asylum-seekers. Similarly, at local and provincial levels, and due to the absence of an enabling legal framework, the provision of short-term social services for asylum-seekers and refugees is sparse and dealt with in an adhoc manner. However, as we discuss in more detail in the full report, in some cases considerable effort is undertaken. The South African government faces considerable problems generally, for example, in paying for grants to South Africans because ‘there is not enough money for grants and pensions’78 or even ‘general provisions which would provide a cash benefit of last resort to the poor’.79 In some cases where there is inadequate liquidity, pensions are being rolled over to the next year, a practice that is acknowledged as unconstitutional.80 This problem is felt most acutely amongst children in need of support. Where policies are in place, ‘pickup’ of these services is limited and general service infrastructure in most areas in South Africa remains underdeveloped. In addition to resource restrictions, the South African government’s focus has been on meeting the needs of South Africans first. For this reason, it has often been left up to NGOs working with asylum-seekers and refugees to lobby for their inclusion into the social assistance grants system. To illustrate, South Africa’s National Department of Social Development undertook a comprehensive process to review its social security portfolio, as well as developmental social welfare services, with the aim to provide a more comprehensive package of fundamental services, regardless of whether people are South African citizens. The review’s report, which was completed in 2002, was meant to make provisions for asylum-seekers and refugees.81 However, while the report acknowledged that there were gaps and inadequacies in the social assistance system in relation to non-citizens, it did not fundamentally address these. Instead, it stated that in future ‘there will probably be constitutional pressure to ensure all people (including illegal immigrants) have access to certain basic services (such as emergency healthcare), and full access to certain categories such as refugees’.82

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And indeed, the Department has begun to face a number of legal cases, that seek to challenge the state’s policy of limiting social assistance only to South African citizens. The first court case began in 2003, and was finally decided by the Constitutional Court in 2004. It was brought on by the Legal Resources Centre in Pretoria and successfully managed to extend the rights of permanent residents83 to have access to state-provided social assistance grants based on the right to equality in the Constitution.84 Even though this case did not involve refugees directly, its outcome paved the way for the UNHCR and Lawyers for Human Rights (LHR) to begin discussions with the Department of Social Development to explore the extension of social assistance grants to vulnerable recognised refugees.85 After eighteen months of trying to negotiate unsuccessfully with the Department of Social Development, LHR launched a case to provide disability grants for refugees in the Pretoria High Court on 19 September 2005.86 In response to the court case, the Department of Social Development offered to provide the applicants in the case, approximately forty recognised refugees, with interim social grants if LHR agreed to suspend litigation until the end of March 2006, when the Department committed itself to having a comprehensive social assistance plan for refugees in place. LHR agreed to this request. Towards the end of March 2006, the Department requested a further three-month extension to produce this plan, which was, in turn, granted. In view of these developments, it will be necessary to further evaluate the Department’s plan and its adequacy to meet the needs of vulnerable refugees. While the Department of Social Development is being forcefully persuaded to address the needs of vulnerable refugees, it has also undertaken another parallel and commendable initiative to begin to address the needs of asylum-seekers through the relaunch of a Refugee Relief Board that administers the Refugee Relief Fund set up under the Fundraising Act of 1974. The Minister of Social Development appointed the Board in October 2000, which administers not only the Refugee Relief Fund, but also the Disaster Relief, Social Relief and State President’s Funds. An initial meeting was held in early April 2001 between the Board and relevant stakeholders, including representatives from the Departments of Health, Social Development, Education, Home Affairs, the South African Human Rights Commission, UNHCR as well as several service providers and NGOs working with asylum-seekers and refugees.87 The main objective of the meeting was to help the Board define its role in order for it to disburse funds accordingly. Service providers and NGOs that were present urged the Board to consider the lack of social relief currently being provided for asylum-seekers upon arrival in South Africa and during the six-month period during which their status is meant to be determined. They also requested the Board to consider providing assistance for organisations that are currently engaged in the provision of social services for refugees and asylum-seekers.

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Despite the progress made in 2001, the Department of Social Development failed to follow through on this initiative until late 2004. In October 2004, the Department called for nominations of individuals to serve on the Board;88 however, it took the Board over a year to reconstitute itself. In April 2006, nominated candidates finally began to receive letters of appointment to the Board. One of the Board’s first activities was to assess existing legislation to ensure that asylum-seekers would be able to benefit from the Fund’s assistance. Moreover, it needed to draft its own budget with which to approach the National Treasury to request funds for its operations. This is likely to be a lengthy process, though at the time of writing it was envisioned that asylum-seekers (and refugees) would be provided short-term emergency assistance through the Refugee Relief Fund and not from the state’s social grants assistance programme. Moreover, the Board indicated that it would not only play an important role in the coordination of activities across relevant government departments, but also aid in the closing of existing policy gaps in the provision of social services for refugees and asylum-seekers. This would not only aid in the progressive realisation of the rights enshrined in the Constitution but also would allow South Africa to continue to align its policies with ratified international law instruments that protect the access to social security of asylum-seekers and refugees. For the time being, and as a means of providing developmental welfare services and poverty relief, provincial Social Development departments have established partnerships with NGOs and other service providers. These organisations receive assistance in the form of transfer payments to run shelters, child-care centres, and so on. At present, the department is trying to provide funds for programme-based initiatives rather than paying for each person at an institution. The focus is more on quality assurance and performance of the overall programme. Within these initiatives, there are no rules that exclude non-South African citizens from benefiting.89 As part of its shift towards the provision of integrated welfare services, the National Department of Social Development is looking to support different initiatives within an umbrella organisation. The aim is to have generic programmes that have specialised programmes within them.90 This is applicable, for instance, to the provision of assistance for the running of shelters. While the main service is the provision of shelter, there would be specialised programmes for the provision of shelter for destitute South Africans as well as destitute non-nationals. There are currently no regulations or guidelines at national level that prescribe a certain ratio of nationals to non-nationals in terms of services provided by shelters that are receiving government assistance. If shelters are instituting ‘quotas’, this is probably being done on an ad hoc basis and at facility level.91 A similar rationale is being applied in the establishment of ‘one-stop centres’ such as dealing with HIV/Aids, children and the law, as well as community safety. These centres are currently being set up to circumvent

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the limitations of specialist service provision, and to facilitate accessibility, as well as sharing resources between the services of different departments.92

Special Assistance for Unaccompanied Asylum-seeker and Refugee Minors Whenever an unaccompanied foreign child is found, a social worker, policeman or authorised person may remove a child from any place to a place of safety, if necessary. Whether an emergency placement is necessary or not, a social worker from the Department of Social Development must be notified about the circumstances of the child. In turn, a social worker must conduct an inquiry to assess whether the child is to be considered a child in need of care and assistance. As part of this process, an unaccompanied asylum-seeker or refugee child must be brought before the Children’s Court for the district in which he or she was found, which in turn may order, amongst other things, that a child be assisted in applying for asylum.93 While this process is ongoing, the Department of Social Development, in conjunction with international social services, must carry out investigations into the child’s family circumstances in the child’s country of origin, if the child does not have any relatives in South Africa or has relatives in the country but they are not suitable to care for that child. Asylum-seeker and refugee children who are found to be children in need of care after an inquiry, but who cannot go back to their countries of origin or be reunited with family members, need to be assisted by the state until they reach an age of majority. If the child is allowed to remain in the country, the Commissioner, through the Children’s Court and guided by the Child Care Act of 1983, is meant to decide whether the child should be placed into a place of safety or children’s home. However, until very recently there was reluctance on the part of the Department of Social Development and the Children’s Court to hear cases involving asylum-seeker and refugee children. It took a court case in the Pretoria High Court and its precedent-setting judgment delivered on 13 September 2004 to affirm that all unaccompanied foreign children found in need of care should be dealt with in accordance with the provisions of the Child Care Act. The judgment contained a number of important provisions regarding the treatment of unaccompanied foreign children worth mentioning, namely: a child should be assisted to submit an asylum claim if it appears at a Children’s Court inquiry that a child has a refugee claim; the government of South Africa is directly responsible for providing for the socio-economic and education needs of unaccompanied foreign children; unaccompanied foreign children may no longer be detained at the Lindela Repatriation Centre and must be provided with legal representation at the state’s expense. Lastly, the judgment stated that there is a legal duty on the various government departments to formulate together a detailed policy providing for the way in which unaccompanied foreign children should be dealt with in South Africa.94

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Social Assistance in Practice One of the few forms of social assistance that unaccompanied refugee minors can qualify for is the foster care child grant, which is part of the child protection programme. A magistrate decides whether the child needs a foster care grant; if they have family, children are not necessarily eligible, as the argument is that the family should be able to provide for the child.95 The foster care grant is awarded to the foster parents of children under eighteen years old and is awarded until the foster-child either turns eighteen, with the provision to extend it until twenty-one to enable the child to complete schooling. The duration of the grant extends until the last living foster parent or child dies, or the child is no longer in the custody of foster parents.96 Until very recently, only foster care parents who were in possession of a green thirteen-digit bar-code identity document were eligible to claim this grant on behalf of refugee minors. In other words, refugees who qualified as foster care parents were unable to access this grant on behalf of refugee minors. The requirement for such ID documents was intended to clean up fraud in the claiming of grants and now forms part of the regulations to the Social Assistance Act of 1992. It was recognised, however, that this (essentially) bureaucratic stipulation should not detract from the recognised rights of the child. ‘(T)he needs of the children should determine their placement and the best interests of the child should weigh very strongly,’ particularly with regard to the placement of unaccompanied minors with refugee parents who might have similar cultural and language backgrounds.97 To remedy this situation, in October 2003, the Legal Resources Centre in Durban launched a case to allow refugee foster-parents, who had already been placed by the Department of Social Development as foster-parents for unaccompanied refugee children, to access foster child grants.98 In September 2005, the Department agreed to a consent order to enable refugees to receive the foster-child grants, as well as to pay arrear amounts on the grants from the date of application for the grants, in line with what the applicants had requested in court papers.99 While the Department agreed to this in principle, it subsequently faced the administrative obstacle of processing these grants through its national grants database system. In the interim, the Department of Social Development agreed to provide temporary relief for the applicants in the case until it resolved the administrative blockage.100 In May 2006, the Department of Social Development managed to resolve this problem and began processing the foster-child grants for applicants listed in the court case. With this achievement, a partial door has been opened by the Department of Social Development to recognise its obligations towards refugee children. It will now be up to other refugees already placed as foster-care parents in Durban and elsewhere in the country to test their continued ability to access these grants. However, to

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access these grants, recognised refugees will need to be in possession of refugee IDs. In light of the delays in issuing refugee IDs to recognised refugees as a result of the Department of Home Affairs’ five-year-old practice of producing refugee IDs manually, it is likely that recognised refugees will continue to face substantial obstacles in getting access to these grants, despite recent achievements. The issues surrounding unaccompanied asylum-seeker and refugee children require urgent attention. As has been pointed out, children enjoy special protections not only in the South African Constitution but also in different international law instruments, particularly the UN Convention on the Rights of the Child. In addition, children, whether accompanied or not, must be able to enjoy basic rights such as access to food and shelter, which are currently being jeopardised due to the inadequate state provision of these services towards asylum-seekers and refugees.

Placing Value on the Participation by Refugees and Asylum-seekers Beyond recognising the important roles that government, NGOs, medical practitioners and UNHCR have to play in providing social assistance, the value of participation by refugees and asylum-seekers both in policy development and implementation is a principle explicitly recognised by NGOs, who endorse an integration approach to social assistance,101 medical practitioners102 and refugee communities themselves.103 As the European Council on Refugees and Exiles (ECRE) maintains: Refugee empowerment is critical in refugee integration. Some countries focus on the development of refugee community organisations. These provide a focal point for community activities, facilitate the development of political selfconfidence, and act as intermediaries between individual refugee members and the host community. Another type of public intervention emphasises refugee selfdevelopment and expression through cultural or recreational activities.104

Beyond the level of ‘consultation’, direct involvement of refugees in health care and other forms of social assistance is a crucial consideration, particularly where there is professional expertise (e.g. trained medical doctors and other health professionals) within the refugee population. Limitations on the ability of skilled professionals to practise their profession can lead to great frustration and depression, not to mention wasted skills.105 Indeed, comparisons between host-country policies show that restricting refugee professionals’ ability to practise can result in exploitation of refugee communities and limited access to health care, whereas in countries that do recognise refugees’ qualifications there is no such problem.106

Comparative Perspectives on the Importance of Communication If comparative experience shows us anything, it is that effective communication is vital to the success of any health or social assistance

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initiative for refugees. Dutch researchers Nieuwhof and Mohamoud have concluded in the context of Somali asylum-seekers in the Netherlands that ‘communication is the key to participation’, as referenced earlier in Chapter 7 in the context of Angolan asylum-seekers. In conclusion, the researchers determined that the role of government ‘must lie in areas such as ensuring proper registration, support, stimulation and playing the role of facilitator in the solutions to the community’s problems’.107 In short, there is an immense need to ‘mainstream’ welfare service provision in South Africa, drawing on the comparative experiences of other countries, in particular in the areas of social assistance delivery and with special attention to the needs of unaccompanied refugee children.108 Finally, the key to increasing access demands greater participation of the refugee community.

Conclusion In conclusion, we would like to draw attention to some issues in particular that need further examination in order to ensure that refugees and asylumseekers receive adequate health care and social assistance. First, it is crucial that government policy towards refugees and asylum seekers be re-examined. It must be clear and detailed in order to address the general expectations and obligations of relevant departments, and must attend to the specifics of different sectors within the health and social development fields. In terms of health services, policy guidelines need to contain specific guidelines for primary health care, as well as secondary and tertiary levels of care. In terms of social welfare services, these guidelines must differentiate between social security, social assistance and the provision of short-term social relief. In addition, guidelines must be flexible and should not seek to dictate a specific remedy for all situations. In particular, guidelines must differentiate between non-emergency and emergency situations. If there were to be a mass influx of asylum-seekers and refugees, provincial departments, for instance, may well need to be compensated for the resource allocations that immediate situations require. At the very least, however, guidelines must be able to address absolute minimum requirements. Secondly, the formulation of policy guidelines to facilitate access of asylum-seekers and refugees to health and welfare services must be accompanied by a concerted national communication and awareness campaign. To be effective, national figures such as the President, Ministers and Premiers need to be supportive of the campaign and willing to be vocal about the need to respect the rights of asylum-seekers and refugees.109 This campaign would serve to improve the knowledge amongst health and welfare officials, as well as the general population, on the difference between asylum-seekers, refugees and other foreigners, as well as their

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respective rights to health and welfare services. Moreover, this campaign would help to avoid xenophobic reactions on the part of health and welfare personnel, as well as the general population. In particular, it is very important to avoid a backlash from local communities out of a perception that asylum-seekers and refugees would be cared for more than locals.110 Finally, the evolution of economic and social rights and the responsibility of the government in this regard require ongoing monitoring and evaluation. In the South African context this is facilitated in several ways, not least in the context of the National Action Plan (NAP). However, eight years after the adoption of the NAP, this unfortunately has yet to materialise. Ultimately, ensuring adequate health care and social assistance for refugees and asylum-seekers depends on a collective effort, recognising the various roles that government, NGOs, UNHCR and especially refugees and asylum-seekers themselves have to play. We feel that the success of this process will depend on the extent to which all role-players can effectively communicate with each other. This would require moving beyond rhetoric by government and civil society actors towards a clear and holistic programme of action to deliver. Despite evidence of some coordination and collaboration, critical obstacles remain and conditions on the ground for many asylum-seekers and refugees remain dire.

Annex A: Existing Domestic Legal Instruments on Health (Extracts) (1) South African Constitution111 and Bill of Rights South Africa’s Constitution encompasses all three generations of rights: political and civil, social and economic, cultural and spiritual. Its socioeconomic content is essentially developmental and reflects the country’s commitment to address inherited disparities and imbalances. Since 1994, and in particular since February 1997 and the introduction of the final Constitution, South Africa has begun to build a body of laws around the Bill of Rights and Constitution. In seven years Parliament has repealed and amended a plethora of old laws, and in so doing has introduced a range of laws rooted in constitutional protections.

The Right of Access to Health Care Services There are important provisions in the Bill of Rights in the South African Constitution, that protect the right of access to health care for asylumseekers and refugees. Everyone has the right to have access to health care services, including reproductive health care – s. 27(1).

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Universality is also guaranteed in terms of emergency medical care. No one should be refused emergency medical treatment – s. 27(3).

What constitutes emergency treatment, however, is moot and necessarily subject to interpretation.112 The state is expected to take action to improve the quality of health provision on an ongoing basis. Consistent with the international provisions, section 27(2) indicates that: the state must take reasonable legislative and other measures within its available resources, to achieve the progressive realisation of each of these rights.

Equality and Non-discrimination These specific protections are reinforced by constitutional provisions for equality before the law and the right to human dignity. Everyone is equal before the law and has the right to equal protection and benefit of the law – s. 9(1). Equality includes the full and equal enjoyment of all rights and freedoms – s. 9(2). The State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth – s. 9(3). Everyone has inherent dignity and the right to have their dignity respected and protected – s. 10.

By making provisions for ‘everyone’ these sections reinforce the general principles of non-discrimination, and consequently imply that vulnerable and disadvantaged groups should not be subject to discrimination in terms of accessing and enjoying their constitutionally protected rights. As such, it is strongly argued that most rights are also applicable to asylum-seekers and refugees.113

Children’s Rights Specific protections (including the universality of the rights) are also afforded to children in the South African Constitution. Every child has the right to basic nutrition, shelter, basic health care services and social services – s. 28(1c).

Section 28(2) states that the child’s ‘best interests’ remain of paramount importance in every matter concerning the child. Unlike other rights that are qualified by provisions of ‘access’, section 28 places specific constitutional duties on the state to provide basic resources that are distinct from other qualified provisions, as for example set out in section 27(2).114 Asylum-seeking and refugee children fall squarely under these provisions.

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Limitation of Rights Section 36 of the Bill of Rights sets out specific criteria for the limitation of fundamental rights. This is also of specific relevance to asylum-seekers and refugees. But any limitation or infringement of the right must be: reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factor – s. 36(1).

(2) Refugees Act of 1998 In addition to the Constitution, the Refugees Act of 1998 also makes provision for access to health care. A refugee is entitled to the same basic health services and basic primary education which the inhabitants of the Republic receive from time to time – s. 27(g).

On face value section 27(g) of the Refugee Act limits the right of access to health care in the Bill of Rights only to refugees, thereby excluding asylumseekers. Legal experts dealing with refugees and asylum-seekers, however, have pointed out that ‘the Bill of Rights is clear and unambiguous on whether asylum-seekers benefit from its provisions. Most of the rights in the Bill of Rights have universal application in the sense that they are for the benefit of “everyone”.’115 Furthermore, as one legal expert commented, ‘the determination process doesn’t make you a refugee, it just gives you a status. Therefore, there shouldn’t be any differentiation between asylum seekers and refugees.’116

Annex B: Existing Domestic Legal Instruments on Welfare (1) South African Constitution The South African Constitution, in its Bill of Rights, contains several clauses that protect the rights of ‘everyone’ to have access to different forms of social assistance and social security. As mentioned previously, in broad terms the Constitution protects the right of everyone to have their dignity respected and protected (section 10) and the right of everyone to be equal before the law and the right to equal protection, including their full and equal enjoyment of all rights and freedoms (section 9(1&2)). As with issues of health, constitutional provisions prohibiting discrimination (section 9 (3)) should also be considered. In other words, these clauses would seem to allow asylum-seekers and refugees to enjoy the following rights and freedoms contained in the Bill of Rights in the same way that ordinary South Africans are allowed.

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Food and Water Everyone has the right to have access to sufficient food and water – s. 27(1b).

Further, the Constitution contains special protections for all children, defined as persons under the age of eighteen years – s. 28(3). Every child has the right to basic nutrition, shelter, basic health care services and social services – s. 28(1c).

Social Security and Social Assistance Everyone has the right to social security, including, if they are unable to support themselves and their dependants, appropriate social assistance – s. 27(1b).

In addition to being protected under section 28(1c) described above, children are also given the following rights. Every child has the right to family care or parental care, or to appropriate alternative care when removed from the family environment – s. 28(1b). Every child has the right to be protected from maltreatment, neglect, abuse or degradation – s. 28 (1)(d).

In all matters pertaining to children, the Constitution is very clear in that ‘A child’s best interests are of paramount importance in every matter concerning the child’ (section 28(2)). Furthermore, in matters pertaining to children, the ‘progressive realisation’ clause is not applicable.

Housing While the Constitution is directly silent on the issue of shelter, except in cases involving children, it does make provisions for housing. Everyone has the right to have access to adequate housing – s. 26(1). The State must make reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right – s. 26(2).

(2) Refugees Act of 1998 Even though the Refugees Act is explicit on the access of refugees to basic health care and basic primary education, it does not expressly make provisions for access to social services. These protections, however, are extended in the Act to refugees as part of their enjoyment of full legal protection, including the rights set out in Chapter 2, namely the Bill of Rights, of the Constitution. A refugee enjoys full legal protection, which includes … rights set out in Chapter 2 of the Constitution and the right to remain in the Republic in accordance with the provisions of this Act – s. 27(b).

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As in the case with health rights, the Refugees Act limits this provision to refugees only. As previously stated, the administrative distinction between asylum-seekers and refugees is questionable, particularly in the context of clear provisions for non-discrimination. With regard to unaccompanied children and mentally disabled persons, the Refugees Act contains the following provisions: Any child who appears to qualify for refugee status in terms of section 3, and who is found under circumstances which clearly indicate that he or she is a child in need of care as contemplated in the Child Care Act, 1983 (Act No.74 of 1983), must forthwith be brought before the Children’s Court for the district in which he or she was found – s. 31(a). The Children’s Court may order that a child contemplated in subsection (1) be assisted in applying for asylum in terms of this Act – s. 31(b). Any mentally disabled person who appears to qualify for refugee status in terms of section 3 must be assisted in applying for asylum in terms of this Act – s. 31(c).

(3) Child Care Act 1983 Finally, the Child Care Act of 1983, referred to in the Refugees Act, makes important provisions to safeguard the safety of all children. It makes provision for: • The legal representation of a child at any stage of a proceeding – Chap. 2, s. 8A. • The removal of a child to a place of safety on an order of court or on sworn information – Chap. 3, s. 11. • The removal of a child to a place of safety pending an inquiry – Chap. 3, s. 12. • Bringing children before a Children’s Court – Chap. 3, s. 13, and • Powers of the Children’s Court after an inquiry in placing a child in foster care, in a children’s home or in a school of industry – Chap. 3, s. 15.

Notes 1. In January 2001, the Community Agency for Social Enquiry was commissioned by the United Nations High Commissioner for Refugees (UNHCR) to undertake research to understand the existing situation, including an assessment of capacity and obstacles to the implementation of government health and welfare policy at national and provincial level, with a focus on Gauteng and the Western Cape; examine government policies and practices regarding social service provision from the perspective of government officials as well as service providers; and subsequently develop guidelines to facilitate the implementation of government policy to address gaps in provision. 2. In November 2003, CASE, in cooperation with the UNHCR and Japanese International Cooperation Agency (JICA), published a National Refugee Baseline Survey conducted with 1,500 African asylum-seekers and refugees within four of the five cities in South Africa where Refugee Reception Offices are located, with

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3.

4. 5.

6. 7. 8.

9.

10. 11. 12. 13.

14.

15. 16. 17.

18.

19. 20. 21. 22.

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the exception of Port Elizabeth. For a full copy of the report, go to www.case.org.za. To put this matter in perspective, out of 1,500 African asylum-seekers and refugees interviewed between April 2002 and August 2003, prior to their arrival in South Africa 3 per cent were unemployed, 15 per cent were employed in skilled occupations, 31 per cent in semi-skilled occupations and 14 per cent in unskilled occupations. When interviewed in South Africa, 24 per cent were unemployed, 52 per cent were employed in unskilled occupations, 17 per cent in semi-skilled occupations, and only 3 per cent in skilled occupations National Refugee Baseline Survey (Johannesburg, 2003). Ibid. In a Constitutional Court case heard on 4 March 2004, permanent residents were granted the right to apply for social grants as citizens. Up until this time, social grants were only accessible to South African citizens residing in South Africa. At present, attempts are under way to extend this right to recognised refugees. Even if this is the case, asylum-seekers will remain unprotected. Excom Conclusions No. 84 of 1997 and No. 74 of 1994, UNHCR Executive Committee, Geneva. Vienna Declaration (1993), Part 1 at para 5. UNHCR, The State of the World’s Refugees: A Humanitarian Agenda (Oxford, 1997), Chapter 2: Defending Refugee Rights: 17 – www.unhcr.ch/refworld/pub/ state/97/ch2.htm. United Nations Committee on Economic, Social and Cultural Rights, UN Fact Sheet No 16 (Vienna, 1993), 3 Last accessed on 24 March 2007 at: http://www.unhchr.ch/html/menu6/2/fs16.htm S. Liebenberg and K. Pillay eds Socio-economic Rights in South Africa: A Resource Handbook (Cape Town, 2000), 16. UNHCR Statistics – www.unhcr.ch/statist/99overview/tab302.pdf. UNHCR, Refugee Children: Guidelines on Protection and Care (Geneva, 1994). Preface by Sadako Ogato, United Nations High Commissioner for Refugees. U. Mwalimu, ‘The Socio-economic Rights of Refugees in Africa: Special Focus on Children’, unpublished LLM Dissertation, Centre for Human Rights, University of Pretoria, 2000, 4. South Africa’s Constitution recognises both civil and political rights as well as social, economic and cultural rights in a manner that affirms the interdependence of these various categories of human rights. ECRE, Good Practice Guide on the Integration of Refugees in the European Union (Health) (Brussels, 2000), 8. G. Goodwin-Gill The Refugee in International Law, 2nd edn (Oxford, 1996), 281. For example, the 1951 UN Convention Relating to the Status of Refugees, Article 23; International Covenant on Economic, Social and Cultural Rights, Art. 12; the 1989 UN Convention on the Rights of the Child, Art. 24. It is interesting to note that, even in some developing countries, such as Zambia, refugees’ health concerns have also been incorporated into the national health system. E. Chitu ‘Refugee Policies in Africa: the Case of Zambia’, unpublished paper presented at the 7th International Research and Advisory Panel Conference in South Africa, Midrand, 2001. ECRE, Position on the Integration of Refugees in Europe (Brussels, 1999), para. 108. Article 71 of Part 2 of the Vienna Declaration. National Action Plan, South African Government, 1998, 17. See K. Pillay, ‘Access to Health Care Services: Language as a Barrier’, ESR Review 2, no. 1 (1999): 14: ‘Effective communication is critical for the health care professional to explain preventative measures, make a diagnosis, or treat the

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26.

27.

28.

29.

30. 31. 32. 33.

34. 35. 36.

37.

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conditions that threaten or compromise an individual’s state of physical, mental or social well-being.’ Goodwin-Gill, The Refugee in International Law, 229. Canadian Council for Refugees and City of Toronto Public Health, Proceedings of the Workshop: Fourth International Metropolis Conference (Toronto, 1999). African Services Committee, Services Provided to Refugees. New York: African Services Committee, (New York, 2001). Available at: http://www.africaservices.org (last checked on 12 March 2001); Canadian Council for Refugees and City of Toronto Public Health, Proceedings; ECRE, Position on the Integration of Refugees. For example, the Pharos Foundation in the Netherlands pursues an integration policy in promoting the provision of existing health care facilities for refugees, ECRE, Good Practice Guide, 16–18. Comparative experience shows that the ability to enjoy access to social services also places refugees in a better position ‘to take an informed and voluntary decision to return to their country of origin if circumstances are conducive to return’ – see WARIPNET and LCHR, ‘From Response to Solutions – Strengthening the Protection of Refugees through Economic, Social and Cultural Rights’, unpublished discussion paper presented at 51st UNHCR Excom meeting, Geneva, 2000, 4. ECRE, 2000, Good Practice Guide. See, for example, extensive field experience by intergovernmental organisations, such as UNHCR or WHO, academic studies on access to health care of refugee communities, such as that conducted by Weinstein and colleagues, and NGO advocacy efforts, such as that by the Italian NGO Consiglio Italiano Per I Refugiati. H. Weinstein, R.H. Sarnoff, E. Gladstone, J.G. Lipson, ‘Physical and Psychological Health Issues of Resettled Refugees in the United States’, Journal of Refugee Studies 13, no. 3 (2000): 303–27 (324). Interview with Neville Gawula, Legal Adviser, National Department of Health, 21 February 2001. Interview with Letitia Rispel, Superintendent General, Gauteng Health Department, 14 March 2001. R. Danso and D. McDonald ‘Writing Xenophobia: Immigration and the Print Media in Post-apartheid South Africa’, Africa Today 48 (2001): 115–38. For instance, 42 per cent and 17 per cent of African asylum-seekers and refugees had never made use of emergency medical care and primary health care services, respectively CASE, National Refugee Baseline Survey. Interview with Dr G.H. Bass, Legal Adviser, Provincial Health Department, Western Cape, 6 March 2001. Interview with Dr Ayanda Ntsaluba, Director General, National Department of Health, 16 March 2001. For the most part, refugees who are HIV-positive have been able to receive ART at public hospitals in line with the National Department of Health’s official policy on this matter; however, there have been a few instances where administrative personnel have denied refugees access due to the non-recognition of their documents. In addition to assisting recognised refugees with access to ART at public hospitals, NGO service providers often assist asylum-seekers to access antiretrovirals ARVs from NGOs or religious organisations. Besides assisting with treatment, a number of NGOs working with asylum-seekers and refugees have instituted specific HIV awareness programmes, or have incorporated HIV awareness into broader refugee rights programmes. Email communication with UNHCR Regional HIV/AIDS adviser, 20 May 2006. In a recent survey, it was found that 17 per cent of African asylum-seekers and refugees who sought emergency medical care were in fact refused access. In almost

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38.

39. 40.

41. 42. 43. 44. 45. 46.

47.

48. 49. 50. 51. 52. 53. 54.

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half of these cases (45 per cent), administrative personnel at public hospitals were identified as those refusing care, while nurses or nursing sisters were cited as denying access in one-fifth of the cases. In addition to problems with specific personnel, almost one-quarter (23 per cent) of respondents also mentioned problems they experienced with ensuring that ambulances arrived when called. As to the reasons for their refusal of emergency medical care, the largest proportion of applicants did not know why they had been refused emergency medical care; over one quarter (26 per cent) indicated that they were refused medical assistance because they were unable to pay the required fee, while 14 per cent argued that the facility did not accept their documents. CASE, 2003, National Refugee Baseline Survey. Interview with Neville Gawula, Legal Adviser, National Department of Health, 21 February 2001. However, as quoted in J. Parsley, ‘Report on Workshops on Health Rights of Refugees and Migrants’, unpublished, Johannesburg, February 2001, 6, an official from the Gauteng Department of Health (now working for the National Department of Health) indicated that this policy of openness makes specific mention of access for permanent residents and therefore one must produce a South African identity or permanent residence document, an impossibility for the overwhelming majority of refugees and certainly asylum-seekers. Interview with Councillor Prema Naidoo, Head of Health Portfolio, Greater Johannesburg Metropolitan Council (GJMC), 29 March 2001. Asylum-seekers and refugees are frequently subsumed under the broader category of ‘foreigner’. Since both government officials and health personnel do not generally know how to differentiate between different categories of foreigners, it is very difficult to ascertain whether and/or to what extent these experiences relate directly to asylum-seekers or refugees. Interview, Human Rights Committee, 22 February 2001. Ibid. Interview, Christina Henda, Head of the Cape Town Refugee Centre, 7 March 2001. Interview with Dr G.H. Bass, Legal Adviser, Provincial Health Department, Western Cape, 6 March 2001. Ibid. In the National Refugee Baseline Survey, it was found that asylum-seekers and refugees relied on their own income to pay for services; where this was not possible, they would approach refugee friends, relatives or churches/organisations working with refugees. Interview with Dr Ayanda Ntsaluba, Director General, National Department of Health, 16 March 2001. Dr. Ntsaluba pointed out that the National Department would need to check whether any circulars had been issued to relevant health authorities detailing the acceptance of different types of identification documents. However, despite numerous attempts to follow up on this matter with the National Department, no further information was made available at the time of writing. Interview with Neville Gawula, Legal Adviser, National Department of Health, 21 February 2001. Ibid. Interview with Dr Ayanda Ntsaluba, Director General, National Department of Health, 16 March 2001. Interview with Chris Watters, Attorney at Law, 28/03/01. Interview with Neville Gawula, Legal Adviser, National Department of Health, 21 February 2001. J. Parsley, ‘Report on Workshops on Health Rights of Refugees and Migrants’, 2. Interview, Jenny Parsley, Head of the Roll Back Xenophobia Campaign, 19 February 2001. This reliance on specific personnel at hospitals to make policy

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66. 67. 68. 69. 70.

71. 72. 73. 74.

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decisions was also raised in our discussions with the HRC. The HRC indicated that there is one refugee woman at Johannesburg General Hospital ‘who treats everyone the same’. Ibid. Interview with Jacques Kamanda, Dosso Ndessomin, and Abbas Yusuf, Coordinating Body of Refugee Communities, Johannesburg, 6 April 2001. Ibid. Ibid. Interview, Jesuit Refugee Services, Sister Cathy Murugan (Johannesburg), Henri Kalonji (Pretoria), 28 February 2001. Ibid. Interview, Christina Henda, Head of the Cape Town Refugee Centre, 7 March 2001. Interview, Fritz Gaerdes, Lawyers for Human Rights, 1 December 2004. Interview, Christina Henda, Head of the Cape Town Refugee Centre, 7 March 2001. Interview, Fritz Gaerdes, Lawyers for Human Rights, 1 December 2004. Referred to earlier, section 17 of the 1951 Convention provides that host States: ‘accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wage-earning employment’ (Art. 17(1) –). In other words, refugees lawfully staying in South Africa should be granted preferential treatment above other foreign nationals in the country. States are furthermore urged to ‘give sympathetic consideration to assimilating the rights of all refugees with regard to wage-earning employment to those of nationals’ – Art. 17(3)). WARIPNET and LCHR, ‘From Response to Solutions’, 20. Ibid. B. Ghosh, Huddled Masses and Uncertain Shores: Insights into Irregular Migration (The Hague, 1998), 147. BBC, ‘Special Television Coverage of Trafficking and Smuggling’, London: BBC World, 21 March (2001). In a recent judgment by the Constitutional Court of South Africa, Khosa and others v. Minister of Social Development and others (Case CCT 12/03), and Mahlaule and another v. Minister of Social Development and others (CCT 13/03), decided on 4 March 2004, permanent residents in South Africa were awarded the same right to social grants as citizens. While the applicants were former Mozambican refugees who became permanent residents, the judgment does not directly apply to asylum-seekers and refugees who are not permanent residents. Interview, Ms. Pat Naicker, Director for Social Security, National Department of Social Development, 26 February 2001. Ibid. Interview, Ashley Theron, Chief Director, Developmental Social Welfare Services, National Department of Social Development, 28 March 2001. As part of its disaster management operations, the Department of Home Affairs set up a reception centre near Louis Trichardt, expecting a large influx of Zimbabweans prior to the national elections. However, not many Zimbabweans actually went to the centre. The Department of Home Affairs continues to explore the setting of reception centres, where asylum-seekers would be kept until the Department makes a determination on an asylum application. However, given that it generally takes the Department more than six months up to years to finalise an application, it is very likely that reception centres would quickly turn into detention centres. What needs to be addressed is the length of time that it takes the Department of Home Affairs to finalise an application – setting up reception centres will not expedite matters.

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75. See Chapter 9. 76. Dutch Refugee Council and Pharos, Asylum Seekers – Don’t Let Them Just Sit and Wait, a Social indictment (Amsterdam, 1996); VON, Vrowen in Asielzoekkerscentra (Women in Asylum Seeker Centres) (Utrecht, 1996). 77. Danish Refugee Council, Report on Legal and Social Conditions for Asylum Seekers and Refugees in Western European Countries (Copenhagen, 2000). 78. Interview, Ashley Theron, Chief Director, Developmental Social Welfare Services, National Department of Social Development, 28 March 2001. 79. Department of Welfare, ‘Social Security in South Africa’, unpublished, no date, obtained from www.welfare.gov.za/documents/archive/socsec.htm. 80. Ibid. 81. National Department of Social Development, ‘Inquiry into the Various Social Security Aspects of the South African Health System Based on the Health Subcommittee Findings of the Committee of Inquiry into a Comprehensive System of Social Security Title: Policy Options for the Future’, unpublished report, 2002. 82. National Department of Social Development, Transforming the Present – Protecting the Future: Draft Consolidated Report of the Committee of Inquiry into a Comprehensive System of Social Security for South Africa (Pretoria, 2002), 31. 83. Interestingly, the applicants in this case were former Mozambican refugees who were subsequently given permanent residence as part of one of the amnesties in the mid-1990s. 84. Section 9(1) of the Constitution states that ‘everyone is equal before the law and has the right to equal protection and benefit of the law’. Section 9(2) states that ‘equality includes the full and equal enjoyment of all rights and freedoms’, while Section 9(3) expressly states that ‘the State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth’. 85. See the section on South Africa in UNHCR, UNHCR Global Appeal (Geneva, 2004), 149 and 296. 86. Scalabrini Centre of Cape Town and Five Others v. The Minister of Social Development, the Minister of Finance, the Minister of Home Affairs and Another, Case No. 32054/ 2005, Notice of Motion, High Court of South Africa, Transvaal Provincial Division, 19 September 2005. 87. These included the National Consortium for Refugee Affairs, the UNHCR, Lawyers for Human Rights, Jesuit Refugee Services, the Coordinating Body of Refugee Communities, and the Community Agency for Social Enquiry. 88. The process of nominations had to be reopened in early 2005 because the Minister was not satisfied with the fact that very few female candidates had been nominated, thus potentially skewing the gender representativeness of a future Board. 89. Interview, Ashley Theron, Chief Director, Developmental Social Welfare Services, National Department of Social Development, 28 March 2001. 90. Ibid. 91. Ibid. 92. Ibid. 93. Section 32 of the Refugees Act of 1998. 94. Centre for Child Law & Another and Advocate Ellis v. Minister of Home Affairs & Others, Case No: 22866/04, Pretoria High Court, Transvaal Provincial Division, 2004–09–13. 95. Interview, Ashley Theron, Chief Director, Developmental Social Welfare Services, National Department of Social Development, 28 March 2001. 96. SANGOCO, Poverty and Social Security in South Africa: Poverty Hearings Background Paper, Johannesburg, 1998.

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97. Interview, Ashley Theron, Chief Director, Developmental Social Welfare Services, National Department of Social Development, 28/03/01. 98. There are basically two steps required to access foster-child grants. First, persons must be found to meet the Department of Social Development’s requirements, in terms of the Child Care Act of 1983, to become foster parents. Once these persons have been found to be suitable as foster-parents, a Children’s Court must make the placement of children with those parents an order of court. Upon being confirmed as foster-parents and having the placement confirmed by an order of court, a foster-parent may then apply to the Department of Social Development to access a Foster Child grant to take care of that foster child. In this case, the refugee fosterparents had obtained orders of court confirming the placement of refugee children under their care. Thus, even though the state had already recognised the applicants in the case as foster care parents, it was nonetheless denying them their right to access foster-child grants to take care of the refugee children placed with them. 99. Bishogo, C. and Two Others v. Minister of Social Development and Four Others, Case No. 9841/05, High Court of South Africa, Transvaal Provincial Division, Consent Order, September 2005. 100. To understand the nature of this blockage, it is important to keep in mind that at present asylum-seekers and refugees are registered in a national refugee database administered by the Department of Home Affairs. This national refugee database exists separately from the National Population Register; in other words, despite being issued with identity documents that have a thirteen-digit bar-code number, as is the practice with citizens and permanent residents, recognised refugees are not included in the National Population Register. In turn, the Department of Social Development’s social assistance grants system works off the National Population Register. Consequently, even though in principle refugees were allowed to access foster-child grants, their refugee ID numbers were not recognised by the Department of Social Development’s assistance grants system. 101. ECRE, Position on the Integration of Refugees. 102. E. O. Ogunbodede, S. Mickenautsch and M. J. Rudolph, ‘Oral Health Care in Refugee Situations: Liberian Refugees in Ghana: Field Report’, Journal of Refugee Studies, vol. 13, no. 3 (2000), 328–335; A. Burnett and M. Peel, ‘Asylum seekers and refugees in Britain: Health needs of asylum seekers and refugees’, British Medical Journal, (2000), 544–547: 545. 103. ECRE, 1999, above n 19. 104. Ibid., No. 46. 105. Ibid. 106. Lawyers Committee for Human Rights, African Exodus (New York, 1995), 109. 107. A. Nieuwhof and A. Mohamoud, Communicatie, Sleutel tot Participatie (The Hague, 2001), 15. 108. See also Chapter 9 of this collection. 109. Interview, Dr. Maharaj Chief Director Red Cross Children’s and Groote Schuur Hospitals, 7 March 2001. 110. Email correspondence, Dr Bitalo, Director, PHC Metro, Cape Town, 20 April 2001. 111. Constitution of the Republic of South Africa, Act 108 of 1996. 112. Invoking aspects of the limitations clause amongst other reasons, the Constitutional Court turned down a South African appellant in need of dialysis treatment, and who had based his claim on Section 27(3) and Section 11, the Right to Life. See Soobramoney v. Minister of Health (KwaZulu Natal) 1997 BCLR 1696 (CC) 113. A. Tilley, ‘Are Non-nationals entitled to Socio-economic Rights?’ ESR Review 1 (1998): 10. 114. This is supported in the Grootboom judgment, in which the Constitutional Court suggests that Children’s Rights are not qualified by requirements of available

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resources or the progressive realisation of the rights. See Grootboom and other v. Oostenbeg Municipal and Others, 200 3 (BCLR) 277 (CC). 115. F. Jenkins and L.A. de la Hunt, Detaining Asylum Seekers: Perspectives on Reception Centres for Asylum seekers in South Africa (Pretoria, 2000), 13, partly reproduced in Chapter 8 of this collection. 116. Interview with Lee Anne de la Hunt, Director, Legal Aid Clinic, University of Cape Town, 7 March 2001.

CONCLUSION Jonathan Klaaren and Jeff Handmaker

 It has been said that one of the greatest tests of a country’s democracy is how its government and people treat foreigners. The many years of struggle in South Africa against an unjust regime, together with a destabilisation campaign by the previous government, made the southern African region host to one of the largest refugee populations in the world. As South Africa now becomes host to increasing numbers of forcibly displaced people, the results of the test this apartheid legacy poses for the new, yet entrenched, South African democracy are being vigorously critiqued. This book has aimed to be part of that critique and part of that democracy. South Africa has, of course, firmly committed itself to human rights, entrenching human rights in its national legal system.1 The post-apartheid state has also made a principled commitment in international law to refugee protection, through ratification of various international conventions, including the United Nations Convention (and Protocol) Relating to the Status of Refugees2 and the Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa.3 With the 1998 Refugees Act (which came into force on 1 April 2000) the South African government has effected a range of statutory protection mechanisms for refugees.

Dual Rationale One way that we can attempt to position the theme of refugee protection within the character of the South African democracy is by exploring the human rights and humanitarian rationales behind the South African entrenchment of refugee protection. These rationales were at least in part

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articulated on the day that the Refugees Act was adopted by the postapartheid Parliament. The philosophy and content of refugee protection are inevitably, and we think appropriately, the subject of democratic debate and deliberation. In this conclusion, we sketch out a distinction between these two rationales as well as a distinction between a traditional and a forced migrant definition of a ‘refugee’. In our view, both of these distinctions have strengths and weaknesses. Some of the tensions that arise within the refugee rights community and within the government institutions charged with the tasks of refugee protection stem from disagreements about these rationales and definitions. Both of these justifying rationales were raised during the course of the passage through Parliament of South Africa’s Refugees Act 130 of 1998. To lawyers, there is often a significant difference between these two rationales. The first is binding; the second is not, at least not in the absence of an armed conflict.4 While South Africa cannot avoid its international human rights obligations, it can in most cases shape and change the humanitarian policies that it chooses to implement.5 The first sentence of the ‘long title’ of the Refugees Act states the human rights rationale. The stated purpose of the Act is: ‘[t]o give effect within the Republic of South Africa to the relevant international legal instruments, principles, and standards relating to refugees’. In section 6, several treaties and other international documents are explicitly listed, including the Universal Declaration of Human Rights.6 In formally presenting the Refugees Act to Parliament, then Deputy Minister of Home Affairs Lindiwe Sisulu cited these instruments and emphasised that the Act was based on a matter of principle.7 The other rationale – humanitarian concern – has also been present but has perhaps generated more controversy. To begin with, Deputy Minister Sisulu took particular care that day in Parliament to deny that the Act was based on ‘goodwill’. Addressing herself to ‘academics and some members of the media’, she specifically denied that the Act was ‘a favour whose return we have to be constantly reminded of’ where ‘most members of the ruling party were themselves refugees’. She called for ‘an end to this cheap type of emotional blackmail’. Yet, while the Deputy Minister was busy denying that her legislation was primarily motivated by the rationale of humanitarian concern, effectively saying ‘We are not returning a favour, we are doing this because it is right and our obligation,’ other Members of Parliament were explicitly calling upon the authority of the government and stressing qualities of dignity and mercy in their comments. For instance, Mr Mokotjo stated:8 ‘To welcome a refugee and to assist him or her is nothing but a humanitarian obligation, which applies to the international community, to safeguard the human dignity of all people. It is, as the saying goes, justice tempered with mercy.’ In our view, both the human rights and the humanitarian rationales do have their limitations. On the human rights side, one of the first things that constitutional lawyers in South Africa teach their students is that no right

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is absolute. All rights can be limited; some more than others. Indeed, there is a special clause in South Africa’s Constitution that provides limitations on limitations.9 One can also see the humanitarian rationale as limited. Not only is it not binding but it is often weighed against other immediate concerns, such as those of security. Taking into account the limited nature of both of these rationales, one can argue that the primary purpose of the Refugees Act is not to provide refugee protection, as it should, but rather to preserve control over another category of persons who are not categorised as refugees in terms of international refugee law definitions. These are the so-called ‘irregular migrants’, more popularly, and derogatorily, referred to as ‘illegals’. Introducing the Act in Parliament, then Deputy Minister Sisulu stated: A clear distinction has to be drawn between migration for economic or social reasons and flight motivated by fear of persecution. A substantial number of illegal immigrants also abuse the refugee regime to stay and work in the country. They place unnecessary pressure on the system thereby delaying genuine applications, which is why today we have 20,000 cases outstanding. Provision has been made in the Bill to fast-track manifestly unfounded and fraudulent claims.10

Earlier, the then-chairperson of the parliamentary portfolio committee on Home Affairs, Mr Desmond Lockey, stated:11 Too many of our citizens do not understand the difference between refugees, illegal immigrants, and economic migrants, and this sometimes accounts for the animosity towards refugees … We must educate our people that asylum is not an alternative means of immigration, but an international human rights obligation. As a free and open democratic society, we must teach our people that refugee protection is our universal duty until conditions in sender countries change, which will enable such refugees to return safely.

Other participants in the legislative debate were as clear about the distinction but with a different emphasis. For instance, Mr Botha stated: We must therefore act very carefully in order to make a clear distinction between political refugees and persons leaving their countries of birth for other reasons … Although we have empathy with and feel sorry for people who, for some or other reason, are forced to leave their country, we cannot and may not care for them at the expense of our own people. We must never allow that to happen.12

Can an Effective Distinction be Made? This distinction between those granted asylum and undocumented migrants, between political refugees and ‘irregular migrants’ or ‘illegals’, is not as clear as lawyers and politicians might wish it to be. Some examples demonstrate this ambiguity. On Thursday, 3 September 1998, three Senegalese nationals were attacked and killed on a crowded PretoriaJohannesburg train.13 Media reports confirmed that persons on the train

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were coming back from an employment rally and that the foreign nationals were holders of section 41 asylum-seeker permits, which were documents issued under the Aliens Control Act, which formerly governed refugee status determination. Two years later, the Human Rights Commission found a number of refugees at the Lindela detention camp after a week-long ‘anti-crime’ action14 by the police in the inner-city Hillbrow neighbourhood of Johannesburg. The distinction between political refugees and undocumented migrants did not seem to make much of a difference in these situations. Indeed, xenophobia itself does not distinguish on the basis of legal status in its operation.15 The difference between political refugees and undocumented migrants also did not seem very clear to the initial drafters of the Immigration Act. In a number of ways, the Act as initially drafted attempted to reassert the control and primacy of a restrictive immigration policy over South Africa’s refugee protection obligations. In any event, its provisions fell dangerously short of the protection that refugees require under international law and South Africa’s own law.16 Perhaps most worryingly, the draft Act provided that the Immigration Service would be able to issue regulations that would override the provisions of the Refugees Act.17 Such a measure would have given effect to neither the human rights nor the humanitarian rationale of the Refugees Act. The submission by the National Consortium for Refugee Affairs (NCRA) to the parliamentary committee that considered the Immigration Bill pointedly raised concern over this issue. The NCRA decried the Immigration Act’s usurping of the role of the Refugee Appeals Board by Immigration Courts, specialised institutions to be created under the Act in the face of opposition from the Department of Justice and Constitutional Affairs.18 As is evident from these examples, the various distinctions identified and discussed are hardly clear or natural ones. One location of the political debate about refugee protection is within the academic community. A question that practically minded academics and practitioners are trying to answer is how far does this field go? What does ‘forced’ or ‘irregular’ migration actually mean? Should one respect strict definitional limitations of the international legal regime? Can one argue that undocumented migrants do fall within this field of study since the southern African (SADC) region is a labour market that itself is the result of force, both economic and military? Or do we maintain a narrow focus on political refugees? These debates – while academic as well – have clear policy implications. Some commentators have argued for ‘comprehensive approaches’ in dealing with so-called ‘irregular’ migration (see also further below).19 Definitional issues, such as who is a refugee, also continue to remain contentious,20 with some having called for a ‘reformulation’ of the purpose of refugee law altogether.21 We must not be surprised that these distinctions are made and used in the field of politics. Politics is at its core pragmatics. In early 2000, the South African Department of Home Affairs issued a statement

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regarding Mozambicans fleeing the floods then devastating that country. The unambiguous message was that any such ‘refugees’ would be returned.22 The message from the South African government was: as much as we want to help, the human rights of these persons are limited.23 Such an episode poignantly raises the issue of the limits of human rights and indeed the limits of our humanity. Accepting and precisely delineating such limits is a difficult business, as hard as that of limiting socio-economic rights or rights to dignity and expression. We expect that we shall continue to see in the development and elaboration of the South African refugee protection regime an articulation of the democratic premise of the South African constitutional order.

Pressing Issues We pause by noting the obvious as well as the urgent. One volume cannot begin to do justice to the entire subject; we have necessarily had to be more selective in what we could include. In any event, as we reflect on refugee protection in a not so newly democratic South Africa in 2006 – that is to say, fully ten years after the adoption of the 1996 Constitution – we can discern a number of refugee protection issues with current and pressing significance. One set of pressing issues relates to local government and refugee protection. There is a growing recognition, not least among municipal leaders in the cities themselves, that refugee protection and reception are areas about which they need to be better informed. Cape Town adopted its first refugees policy in 2003 and Johannesburg is also beginning to pay greater explicit attention to its practices towards non-South African Africans as well as other refugees within their boundaries. Academics have begun to gather and assess data concerning refugees and forced migrants living in urban centres.24 This trend should be noted and encouraged. It is clear from the chapters in this collection that not only that national agencies lack capacity to deal with refugee protection adequately; there are strong indications that local government structures also lack this capacity. However, there is increasing acknowledgement of this by both municipal and national leaders. Addressing these service delivery gaps for both refugees and South Africa’s citizens will go a long way to achieving effective local integration and reception. A second set of current issues, referred to earlier, is around the concept of ‘irregular migration’, otherwise known as ‘illegals’, ‘secondary movers’ or the so-called ‘asylum-migration nexus’. The essential message in this concept of irregular migration is that attention ought to be focused on mechanisms to reduce the numbers of such persons applying for refugee status. Ever since the concept arose in a discussion paper by IOM and UNHCR in 2001,25 there have been regular attempts to try and (re)introduce it, particularly by IOM. However, in a comprehensive

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response paper to the proposals of 2001, a group of NGOs, including refugee and migration experts, argued that such a notion of an ‘irregular migrant’ was inherently flawed.26 Emphasising that the discussion paper did ‘not give sufficient recognition to the complex factors that cause the flight of migrants and refugees’, the response paper provided an alternative perspective on the ‘nexus’ between asylum and migration and produced several recommendations in order to inform the discussion. Unfortunately, it appears that five years later, in 2006, states are still not convinced of the futility of such a concept and a critical discussion on irregular migration is still urgently needed. Here, South African refugee and migration advocates and experts have a key role to play. South Africa is a country where many proposed policy measures to control irregular migrants have flowed from this state-led discussion on the asylummigration nexus; such policies have also been tested in South Africa, though mostly without success. The government of South Africa co-chaired (with Switzerland) a UNHCR group on irregular movement and so feedback from South African advocates and experts could have a significant impact on these discussions.27 A third set of pressing issues are around trafficking. In the views of some, this issue is one of true urgency. Indeed, the South African Law Reform Commission embarked on a road show until 30 June 2006, soliciting comments and policy proposals for a new piece of legislation on trafficking.28 The legislation proposed by the Law Commission would criminalise conduct that facilitated the trafficking in persons, including: debt bondage, practices relating to documents, including their confiscation, and using the services of victims of trafficking. The Commission has proposed discussion around prohibiting summary deportation and around allowing victims temporary residence on the condition that they assist in the investigation and prosecution of the traffickers. While these proposals are worth discussing, in our view, the urgency of this effort must be questioned, which seems to flow from a poorly informed discussion on irregular migration. We have not seen the kind of real data that convince us that this issue must rise to the top of the reform agenda and take precedence over other issues, such as increasing capacity in refugee status determination and refugee protection.29 A fourth current and also related issue is the relationship between security concerns and the purpose of refugee protection. This is an issue that has become especially prominent in South Africa in recent years, in the light of cases such as KK Mohamed, Kaunda and Omar-Rashid, all of whom were accused of, but never charged with, having been involved in acts of terrorism. As discussed in Goodwin Gill’s chapter, we feel that it is important to maintain a clear distinction between the principles of refugee protection and efforts to combat terrorism. A fifth and final pressing issue is the current mooted revision of the base model in the Refugees Act. The Department of Home Affairs has signalled that the Refugees Act is up for revision. Eight years after its passage, and

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six years after having come into force, this is not necessarily a bad thing. Of concern, however, is the stated desire to revise refugee protection legislation in order to achieve ‘streamlining’. Of concern as well are reports we have received in September 2006 that the Department was reverting to an earlier practice of requiring asylum-seekers to liaise exclusively with the reception centres at which they originally applied, restricting their freedom of movement and residence. While there are certainly places where improving bureaucratic efficiency will result in improving refugees’ protection, we would continue to hold to the notion that refugee protection be seen as a matter of human rights enforcement rather than simply one of managerial workloads and case processing rates. Acknowledging these pressing current issues brings us back to the nature of South Africa’s refugee protection regime and the individuals working within it. As we have endeavoured to illustrate in this collection, policy development in South Africa has been the product of much debate and extensive interventions from role-players inside South Africa and from abroad. In particular, civil society organisations and academics have played a crucial role in stimulating critical discussions and in providing concrete solutions. While some in this debate see a series of problems to be overcome, we see such debate as a vital benchmark of the potential for the South African government and civil society to jointly, though not always mutually, address the very real and practical challenges facing them. Many persistent and new challenges will face the government and civil society organisations during the coming years in the implementation of the Refugees Act and in broader issues of refugee protection. These challenges demand a concerted effort to build institutional capacity and a renewed commitment to fundamental principles that are part of the human rights culture in South Africa and enshrined in this country’s Constitution.

Challenges for Government There are challenges aplenty for government here. The Department of Home Affairs is currently struggling with a number of different issues. Not least among these is an inherited and entrenched pattern of (mal)administration within the Department, a pattern that works against transformation. This frustrates the ability of some within the Department in their attempts to bring its policies in line with the Constitution. Further, as the experience of the backlog projects has shown, the Department struggles with seriously limited financial resources and infrastructure, as well as inadequately trained and experienced personnel, who are far too few in number.30 In general, refugee administration officials are insufficiently trained to make full and effective use of even the limited information technology provided for them, or to act in accordance with the law, while maintaining the necessary empathy required in dealing with traumatised asylum-seekers and refugees.

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In sum, there is currently a limited official capacity to make accurate and efficient determinations on refugee status. While improving in pockets, as de la Hunt and Kerfoot’s chapter in this collection illustrates, decisions are often of a low quality. In addition to a greater investment in resources, training of officials is urgently needed in the areas of interviewing techniques, international and domestic refugee law, status determination and research skills and finally management-related issues. The Department has begun to show itself open to joint training initiatives with civil society organisations, a trend to be encouraged.

Challenges for Civil Society There are challenges as well for civil society. Of the many posed in this collection, a particular challenge for civil society concerns legal representation. Persons who apply for political asylum in South Africa rarely have legal advice, let alone assistance or representation. Where there is assistance, the quality of that assistance can be a matter of concern. Legal representation is needed first to address ‘due process’ issues in the asylum determination procedure. Without this, applicants and their legal representatives may not feel as though a claim for political asylum has been fairly considered, and suspicions of bias may develop.31 The credibility of the asylum procedure is enhanced when lawyers act as ‘watchdogs’ against the potential abuses of power or bias on the part of administrative officials. Secondly, as confirmed by comprehensive reports by international and South African human rights organisations,32 there is a need for lawyers to take up cases involving arbitrary arrest and apprehension of asylum-seekers and refugees as suspected ‘illegal immigrants’ by the immigration authorities and especially members of the South African Police Services. The overlap here between refugee issues and broader migration issues is strong, demanding a comprehensive human rights perspective.33 Finally, refugees and asylum applicants face discrimination on a daily basis by the authorities and general public on issues ranging from access to schools and hospitals, to employerrelated issues, all of which can be addressed through effective legal representation, either by paralegal advisers or qualified lawyers.34 More broadly, local NGOs assisting refugees encounter daily challenges. Dealing with clients of very different cultural backgrounds, often with severe psychosocial problems, not to mention confusion and uncertainty in terms of the asylum process and/or social assistance offered, requires special skills or extensive resources. These skills and resources are often in short supply, requiring comprehensive approaches involving all relevant stakeholders, as discussed in Chapters 8 and 10 of this collection. These daily challenges have deepened under the regulations themselves, which brought the Refugees Act into force and introduced new restrictions. Due to the lack of government financial support and inadequate material

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assistance provided by NGOs, refugees and asylum-seekers had until April 2000 traditionally worked to earn a living. Yet the regulations forbid this as a general rule, at least until the application had passed the 180-day mark. The introduction of this policy posed a particularly difficult challenge for service providers. The Watchenuka decision of the Supreme Court of Appeals on 28 November 2003 in favour of a destitute Zimbabwean asylum-seeker and her son eased this situation somewhat, but only for those asylum-seekers in the most desperate of situations and for those who have been able to persevere and obtain a decision in their favour from the Department.35 Moreover, even with work authorisation, for those refugees who do not have easily marketable skills, finding employment can pose major obstacles.

Challenges for Research and Advocacy And, finally, there are challenges for research and advocacy. The end of this collection is but a beginning. There is a need for focused research and renewed advocacy efforts in the specific field of refugee protection as well as in the broader field of forced migration. Crucially, these efforts must involve meaningful input from the refugee and asylum-seeker as well as the broader migrant and immigrant community. We invite continued critical discussion on the issues raised in this book as well as other issues, such as long-term solutions and meaningful assistance, which arise daily in the field of refugee rights and forced migration studies in South Africa.

Notes 1. For an updated collection of fundamental human rights developments in South African constitutional law, see I. Currie & J. De Waal, The Bill of Rights Handbook, 5th edn (Johannesburg, 2005). On constitutional law generally, see S. Woolman, T. Roux, J. Klaaren, M. Chaskalson and A. Stein, Constitutional Law of South Africa (Johannesburg, 2004). 2. 189 UNTS 150 and 606 UNTS 267; South Africa acceded to the Convention and Protocol on 12 January. 1996 3. 1000 UNTS 46; South Africa acceded to this Convention on 16 December 1995 4. This humanitarian rationale should to some extent be distinguished from international humanitarian law. While it is beyond the scope of this particular study, it is important to point out that, particularly in the context of an armed conflict, international humanitarian law applies to a wide range of issues, invoking extensive obligations on the part of states as well as non-state actors, concerning both the behaviour of combatants and the protection of civilians. See A. McDonald, ed. Yearbook of International Humanitarian Law (Cambridge, 2005) (published on an annual basis) and M. Sassoli and A.A. Bouvier, How Does Law Protect in War? 2nd edn (Geneva, 2006). 5. Philosophers too make this distinction. A communitarian such as Micheal Walzer argues in favour of protection for refugees precisely because they are persons

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7. 8. 9.

10. 11. 12. 13. 14.

15. 16.

17.

18.

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without community. His philosophy is understood to support a humanitarian rationale for the protection of refugees. In contrast, political liberals such as Bruce Ackermann argue in favour of protection for refugees based on individual political rights. For an encapsulation of this philosophical debate within the context of the broader immigration debate, see ‘The Exercise of the Immigration Power: the Moral Constraints’ in T.A. Aleinikoff, D.A. Martin and H. Motomura, Immigration: Process and Policy, 5th edn (St Paul, 1995), 74–99. Section 6(1) provides: This Act must be interpreted and applied with due regard to – (a) the Convention Relating to the Status of Refugees (UN, 1951); (b) the Protocol Relating to the Status of Refugees (UN, 1967); (c) the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU, 1969); (d) the Universal Declaration of Human Rights (UN, 1948); and (e) any other relevant convention or international agreement to which the Republic is or becomes a party. Hansard, National Council of Provinces, col. 3104 (Thursday, 12 November 1998). Ibid. Section 36(1) provides: The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including – (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose. Hansard, National Council on Provinces, col. 3102 (Thursday, 12 November 1998). Hansard, National Assembly, cols. 7756–57 (Thursday, 5 November 1998). Ibid,. cols. 7761–62, (Thursday, 5 November 1998). South African Human Rights Commission, Illegal? Report on the Arrest and Detention of Persons in Terms of the Aliens Control Act (Johannesburg, 1999). Various media, including the Mail and Guardian, Business Day, SAPA and others, reported on 31 March 2000, on ‘Operation Crackdown’, which had resulted in the arrests of a number of suspected ‘illegal aliens’. See J. Handmaker and J. Parsley ‘Migration, Refugees and Racism in South Africa’, Refuge 20, no.1 (2002), 40–51. This was confirmed by the Parliamentary Monitoring Group, Home Affairs Portfolio Committee, Social Services Select Committee: Joint Meeting, Immigration Bill: Public Hearings, 23 April (Cape Town, 2002), Last accessed on 2 September 2006 at www.pmg.org.za referring to submissions by various NGOs and UNHCR to the Parliamentary Portfolio Committee in Parliament that was considering the then Immigration Bill: ‘All the organisations recognised the need for new immigration legislation but none were convinced that the Bill went far enough to uphold principles contained in the Bill of Rights especially in respect of the protection of refugees.’ See J. Klaaren, ‘Preliminary Analysis of the Effect of the draft Immigration Bill on the Refugees Act’, unpublished, 2000, and Home Affairs Portfolio Committee, (see note 16, Appendix Six (Submission by the NCRA), Item 1: One of the significant changes made by the Immigration Bill to refugee protection is at the level of administration … The administrative and institutional structure of the Refugees Act (presently part of the migration section of the Department of Home Affairs) would be subordinate to this organisational restructuring. There is no special place or consideration for refugee protection administration within section 55(2). Home Affairs Portfolio Committee (see note 16), Appendix Six (Submission by the NCRA), Item 3.

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19. See J. Ghosh, Huddled Masses and Uncertain Shores: Insights into Irregular Migration The Hague, (1998), especially 146–76. 20. For a comprehensive review of ‘post-cold war developments’ in relation to refugee protection, see P. Kourula, Broadening the Edges: Refugee Definition and International Protection Revisited, The Hague, 1997. 21. See J. Hathaway, ‘Temporary Protection: Challenge or Solution?’ in Perspectives on Refugee Protection in South Africa, J. Handmaker, L. De la Hunt and J. Klaaren eds., Lawyers for Human Rights (Pretoria, 2001), 41–49. 22. Business Day, 6 March 2000 reported that Kwa Zulu Natal (KZN) province was expecting thousands of refugees escaping floods in Mozambique. Mozambique’s western and northern borders were largely inaccessible, leaving KZN as the only option for escaping the flooding. According to Home Affairs spokesperson Hennie Meyer, flood victims do not qualify for refugee status ‘in terms of SA’s agreement with the Organisation for African Unity and the United Nations’ and would be returned to their country of origin. The South African National Defence Force (SANDF) added two extra check points and a ‘roving’ roadblock along the border. IRIN (Johannesburg, 1 March 2000) reported that United Nations High Commissioner for Refugees representative Mengesha Kebede stated, ‘It is up to the host government how it deals with people entering their country fleeing natural disasters.’ As a statement of law, it is by no means clear that this is incorrect. G.S. Goodwin-Gill, The Refugee in International Law, 2nd edn (Oxford, 1996), 26 (distinguishing between UNHCR’s functional responsibilities – which may include persons fleeing natural disasters – and member states’ legal obligations); see also Y. Maluwa, ‘The Refugee Problem and the Quest for Peace and Security in Southern Africa’ International Journal of Refugee Law 7 (1995): 669, noting the role of environmental factors in the causes of refugee flight in Africa. 23. In the situation dealing with the amnesty granted by Cabinet to former Mozambican refugees, the Department of Home Affairs has similarly used human rights rationales to limit humanitarianism. See J. Handmaker and J. Schneider, The Status ‘Regularisation’ Programme for Former Mozambican Refugees in South Africa, Working Paper for the Wits Research Unit on Law and Administration (Johannesburg, 2002). 24. L.B. Landau, Forced Migrants in the New Johannesburg: Towards a Local Government Response (Johannesburg, 2004). 25. UNHCR, Refugee Protection and Migration Control: Perspectives from UNHCR and IOM, (Geneva, 2001). Ref: EC/GC/01/11 Available at: http://www.unhcr.org/cgibin/texis/vtx/protect/opendoc.pdf?tbl=PROTECTION&id=3b3892256 (last checked, 21 August 2006). 26. Human Rights Watch (ed.), ‘NGO Background Paper on the Refugee and Migration Interface’, presented to the UNHCR Global Consultations on International Protection (Geneva, 2001) 27. There is much documentation on the irregular migration discussion archived on the UNHCR and IOM websites – search on www.unhcr.org or www.iom.ch. In particular, see a June 2006 document: UNHCR, Addressing Mixed Migratory Movements: A 10–Point Plan of Action (Geneva, 2006). Available at: http://www.unhcr.org/cgibin/texis/vtx/home/opendoc.pdf?tbl=RSDLEGAL&id=44ca0eda4 (last checked 4 September 2006). 28. South African Law Reform Commission, Discussion Paper 111: Trafficking in Persons (Pretoria, 2006). Available at http://www.doj.gov.za/salrc/index.htm. 29. For a similar conclusion, see R. Pharoah, Getting to Grips with Trafficking: Reflections on Human Trafficking Research in South Africa, ISS Monograph no 123 (Pretoria, 2006). 30. In these circumstances, with a gradually increasing number of persons applying for asylum, a major backlog of applications developed, which a UNHCR-coordinated

Conclusion

31. 32.

33.

34.

35.

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programme subsequently attempted to address, although the results did not quite match expectations. See Handmaker, Chapter 6 of this collection. See de la Hunt and Kerfoot, Chapter 5 of this collection. See Human Rights Watch, ‘Prohibited Persons:’ Abuse of Undocumented Migrants, Asylum Seekers, and Refugees in South Africa (New York, 1998) and South African Human Rights Commission, Illegal?, Report on the Arrest and Detention of Persons in Terms of the Aliens Control Act, Johannesburg, 1999, 23–25. The latter is available at: www.sahrc.org.za. A more recent analsysis is Human Rights Watch, Unprotected Migrants: Zimbabweans in South Africa’s Limpopo Province (New York, 2006). Available at http://hrw.org/reports/2006/southafrica0806/. In this regard, it is notable that the legal NGO Lawyers for Human Rights changed the name of its Refugee Rights Project to the Refugee and Migrant Rights Project, reflecting a broader recognition that these are issues that affect most migrants (i.e. non-South African citizens), irrespective of their legal status. There are also efficiency reasons why there is a need for advice and representation for asylum-seekers, by well-trained lawyers. First, for various reasons, not least the trauma they may have experienced, asylum-seekers are often unable to adequately argue their case on their own behalf. Secondly, the fact-finding aspect of the asylum procedure, regarded as the most crucial aspect, is greatly improved in circumstances where asylum-seekers are legally well represented. When the fact finding is not done correctly, there is a far greater burden placed on government officials and, in the case of legal challenge, judges to make final determinations. There is also a higher risk of inappropriate decisions. See Chapter 5 of this collection. Watchenuka v. Minister of Home Affairs, Cape Town High Court, Case No 1486/02. The degree of compliance with Watchenuka is not clear and likely has varied from office to office. Initially after Watchenuka, all permits were meant to be issued allowing work and study. However, just prior to the time of finalisation of this manuscript, a reversion of policy took place.

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Angola Repatriation Allen, T. and H. Morsink, eds, When Refugees Go Home: African Experiences (Geneva, 1994). Amnesty International, Angola: Arbitrary Detention/Fear for safety/Fear of torture/Incommunicado Detention, Report, AI Index: AFR 12/004/2002 (London, 2002). __________, Mass Forced Evictions in Luanda – A Call for a Human Rights-based Policy, Report, AI Index: AFR 12/007/2003 (London, 2003). Birmingham, D., Frontline Nationalism in Angola and Mozambique (Trenton, 1992). Black, R. and K. Koser, eds, The End of the Refugee Cycle? Refugee Repatriation and Reconstruction (Oxford, 1999). Crisp, J., The Local Integration and Local Settlement of Refugees: A Conceptual and Historical Analysis, UNHCR Working Paper, no. 102 (Geneva, 2004). Crush, J. and V. Williams, The New South Africans? Immigration Amnesties and Their Aftermath (Cape Town, 1999). Dolan, C., ‘Repatriation from South Africa to Mozambique – Undermining Durable Solutions?’, in The End of the Refugee Cycle? Refugee Repatriation and Reconstruction, ed. R. Black and K. Koser (Oxford, 1999). Geddo, B., ‘Durable Solutions to the Refugee Problem: UNHCR’s Regional Strategy for Southern Africa’, in Perspectives on Refugee Protection in South Africa, ed. J. Handmaker, L. de la Hunt and J. Klaaren (Pretoria, 2001). Handmaker, J., ‘Returning Home: Learning Lessons from the Past, and Promoting Safety and Dignity in Repatriation and Return’, Africa Legal Aid Quarterly, July-September (1999). __________ and J. Schneider, ‘The Status ‘Regularisation’ Programme for Former Mozambican Refugees in South Africa’, Working Paper for the Wits Research Unit on Law and Administration (Johannesburg, 2002). Hansen, A. and D. Tavares, ‘From Repatriation to Reconstruction?’, in The End of the Refugee Cycle? Refugee Repatriation and Reconstruction, ed. R. Black and K. Koser (Oxford 1999). Hodges, T., Angola from Afro-Stalinism to Petro-Diamond Capitalism (Oxford, 2001). Human Rights Watch, Struggling through Peace: Return and Resettlement in Angola (New York, 2003). Meijer, G. and D. Birmingham, ‘Angola from Past to Present’ in From Military Peace to Social Justice? The Angolan Peace Process, ed. G. Meijer (London, 2004). Porto, J.G. and I. Parsons, Sustaining the Peace in Angola: An Overview of Current Demobilisation, Disarmament and Reintegration, ISS Monograph no. 83 (Pretoria, 2003).

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Detention and Reception Centres Department of Home Affairs, Strategic Plan 2005/06–2009/10 (Pretoria, 2005). Trechsel, S., ‘Liberty and Security of Persons’, in The European System for the Protection of Human Rights, ed. R. St. J. MacDonald et al. (Dordrecht, 1993). UNHCR, ‘Discussion Document on the Proposed Reception Centres for Asylumseekers in South Africa’, unpublished (Pretoria, 1999). __________, Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum-seekers (Geneva, 1999). United Nations Commission on Human Rights, Report of Working Group on Arbitrary Detention: Visit to South Africa 4–19 September 2005, Geneva, 2005. Ref: E/CN.4/2006/7/Add.3.

Refugee Children Amnesty International, Most Vulnerable of All: The Treatment of Unaccompanied Refugee Children in the UK (London, 1999). Bhabha, J. and W. Young, ‘Not Adults in Miniature: Unaccompanied Child Asylum Seekers and the New US Guidelines, International Journal of Refugee Law 11, no. 11 (1999): 84–125. Handmaker, J., ‘Displaced Children and Children in Exile’, Submission to the South African Law Commission, unpublished (Pretoria, 1998). Handmaker, J. and N. Brancken, ‘Refugee Children’ in Manual on Children and the Law, ed. Ann Skelton, Lawyers for Human Rights (Pretoria, 1999). Human Rights Watch, A Modern Form of Slavery (New York, 1993). __________, Slipping Through the Cracks: Unaccompanied Children Detained by the US Immigration and Naturalization Service (New York, 1997). IOM, Trafficking in Women and Children for Sexual Exploitation in Southern Africa (Pretoria, 2003). Klaaren, J., ‘Recent Citizenship in South Africa’, unpublished (Johannesburg, 1998). Russell, S., ‘Unaccompanied Refugee Children in the United Kingdom’, International Journal of Refugee Law 11, no. 11 (1999): 126–54. Skelton, A., ‘Viva Children Viva: Criminal Capacity of Children in Armed Conflict’, unpublished (Pretoria, 1999). South African Human Rights Commission, Illegal? Report on the Arrest and Detention of Persons in Terms of the Aliens Control Act (Johannesburg, 1999).

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Stone L. and S. Winterstein, A Right or a Privilege: Access to Basic Education for Asylum Seeker and Refugee Children in South Africa, Pretoria (Pretoria, 2003). Terre des Hommes, Kinderprostitutie in Nederland (The Hague, 1999). Report of the expert of the Secretary-General, Ms. Graca Machel, submitted pursuant to General Assembly resolution 48/157, Report of the Study on the Impact of Armed Conflict on Children UN GA A/51/306, 1996, last accessed on 25 March 2007 at: http://www.un.org/documents/ga/docs/51/plenary/a51-306.htm. UNHCR, ‘Guidelines on Policies and Procedures in Dealing with Unaccompanied Minors Seeking Asylum’ (Geneva, 1997). U.S. Department of Justice INS, Guidelines for Children’s Asylum Claims, Washington (Washington, 1998).

Refugee Women Bunch, C., ‘Women’s Rights as Human Rights: Towards a Revision of Human Rights’, Human Rights Quarterly (1990), 489–90. Ceneda, S. and C. Palmer, ‘Lip Service’ or Implementation? The Home Office Gender Guidance and Women’s Asylum Claims in the UK, Asylum Aid (London, 2006). Crawley, H. and Lester, T. ‘Comparative Analysis of Gender-related persecution in National Asylum Legislation and Practice in Europe’, UNHCR (Geneva, 2004). Goldberg, P., ‘Asylum Law and Gender-Based Persecution Claims’, Immigration Briefings (1994): 94–99. Heise, L, ‘Crimes of Gender’, World Watch, March/April (1989). Makiya, K., ‘Rape in the Service of the State: Power and Patriarchy in Iraq’, The Nation (1993). Markard, N., ‘Gendered Violence in “New Wars” – Challenges to the Refugee Convention’, in, Women and Immigration Law: New Variations on Classical Feminist Themes, ed. S.K. Van Walsum and T. Spijkerboer (New York, 2005). Minister of Employment and Immigration, New Refugee Status Advisory Guidelines on Refugee Definition and Assessment of Credibility (Pretoria, 1982). O’Hare, U.A., ‘Realizing Human Rights for Women’, Human Rights Quarterly 21 (1999): 364–402. Schenk, T.S., ‘A Proposal to Improve the Treatment of Women in Asylum Law: Adding a “Gender” Category to the International Definition of Refugee’, Indiana Journal of Global Legal Studies (1994): 301. Sollenberg, M., ed., States in Armed Conflict 1998, Report 54, Uppsala University (Uppsala, 1998). UNHCR, Executive Committee Conclusion no. 39, Refugee Women and International Protection (1985). __________, Guidelines on the Protection of Refugee Women (Geneva, 1991). __________, Executive Committee Note on Refugee Women and International Protection (Geneva, 1990). __________, Guidelines on International Protection No. 2: ‘Membership of a Particular Social Group’ within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees’ (Geneva, 2002).

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Health and Welfare African Services Committee, Services Provided to Refugees. New York: African Services Committee, New York, 2001. Available at: http://www.africaservices.org (last checked on 12 March 2001). Burnett, A. and M. Peel, ‘Asylum Seekers and Refugees in Britain: Health Needs of Asylum Seekers and Refugees’ British Medical Journal (2000): 544–47. Canadian Council for Refugees and City of Toronto Public Health, Proceedings of the Workshop: Fourth International Metropolis Conference (Toronto, 1999). CASE, National Refugee Baseline Survey (Johannesburg, 2003). Danish Refugee Council, Report on Legal and Social Conditions for Asylum Seekers and Refugees in Western European Countries (Copenhagen, 2000). ECRE, Position on the Integration of Refugees in Europe (Brussels, 1999). __________, Good Practice Guide on the Integration of Refugees in the European Union (Health) (Brussels, 2000). Liebenberg, S. and K. Pillay, eds, Socio-economic Rights in South Africa: A Resource Handbook (Cape Town, 2000). Mwalimu, U., ‘The Socio-economic Rights of Refugees in Africa: Special Focus on Children’, unpublished LLM dissertation, Centre for Human Rights, University of Pretoria (Pretoria, 2000). National Department of Social Development, Transforming the Present – Protecting the Future: Draft Consolidated Report of the Committee of Inquiry into a Comprehensive System of Social Security for South Africa (Pretoria, 2002). __________, ‘Inquiry into the Various Social Security Aspects of the South African Health System Based on the Health Subcommittee Findings of the Committee of Inquiry into a Comprehensive System of Social Security Title: Policy Options for the Future’, unpublished report (Pretoria, 2002). Ogunbodede, E.O., S. Mickenautsch, M.J. Rudolph, ‘Oral Health Care in Refugee Situations: Liberian Refugees in Ghana: Field Report’, Journal of Refugee Studies 13, no. 3 (2000): 328–35. Parsley, J., ‘Report on Workshops on Health Rights of Refugees and Migrants’, unpublished (Johannesburg, 2001). Pillay, K, ‘Access to Health Care Services: Language as a Barrier’, ESR Review 2, no. 1 (1999). SANGOCO, Poverty and Social Security in South Africa: Poverty Hearings Background Paper (Johannesburg, 998).

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South African Department of Welfare, ‘Social Security in South Africa’, unpublished, no date, Last accessed on 2 July 2006 at: www.welfare.gov.za/ documents/archive/socsec.htm. Tilley, A, ‘Are Non-nationals Entitled to Socio-Economic Rights?’, ESR Review 1 (1998). UNHCR, Refugee Children: Guidelines on Protection and Care (Geneva, 1994). __________, The State of the World’s Refugees: A Humanitarian Agenda (Oxford, 1997). __________, UNHCR Global Appeal (Geneva, 2004). United Nations Committee on Economic, Social and Cultural Rights, UN Fact Sheet No 16 (Vienna, 1993), 3 Last accessed on 24 March 2007 at: http://www.unhchr.ch/html/menu6/2/fs16.htm WARIPNET and LCHR, ‘From Response to Solutions – Strengthening the Protection of Refugees through Economic, Social and Cultural Rights’, unpublished discussion paper presented at 51st UNHCR Excom meeting (Geneva, 2000). Weinstein, H., R.H. Sarnoff, E. Gladstone, J.G. Lipson, ‘Physical and Psychological Health Issues of Resettled Refugees in the United States’, Journal of Refugee Studies 13, no. 3 (2000): 303–327.

NOTES

ON

CONTRIBUTORS

 Florencia Belvedere was formerly a Project Manager and Acting Director with the Community Agency for Social Enquiry (CASE) in Johannesburg and currently works as a freelance consultant. Jacob van Garderen is head of the Strategic Litigation Unit of Lawyers for Human Rights in South Africa. He is an Advocate of the High Court of South Africa and was formerly coordinator of the Refugee and Migrants Rights Project of Lawyers for Human Rights. Guy S. Goodwin-Gill is a Senior Research Fellow at All-Souls College and formerly Professor of International Refugee Law at the University of Oxford in the United Kingdom. He is also a barrister with Blackstone Chambers in London. Jeff Handmaker is lecturer in development, human rights and governance at the Institute of Social Studies in The Hague and is a sessional lecturer in refugee law at the School of Law, University of the Witwatersrand. He was formerly a coordinator (1996–2000) of the Refugee Rights Project at Lawyers for Human Rights, South Africa. Lee Anne de la Hunt is Legal Adviser to the Minister of Home Affairs in South Africa and an admitted Attorney of the High Court of South Africa. She is currently on leave from the University of Cape Town where she held the position of Associate Professor and Director of UCT Law Clinic in the Law Faculty of the University of Cape Town, South Africa. Frankie Jenkins is a law adviser to the South African Parliament and was formerly a researcher with the Human Rights Committee in Cape Town.

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William Kerfoot is an attorney at the Legal Resources Centre, Cape Town, South Africa. Jonathan Klaaren is Professor of Law and Director of the Mandela Institute in the School of Law at the University of the Witwatersrand, South Africa. He teaches immigration and refugee law and has published extensively in the areas of citizenship and immigration as well as administrative and constitutional law. Loren B. Landau is Director of the Forced Migration Studies Programme at the University of the Witwatersrand, South Africa. Victoria Mayer is an admitted Attorney of the High Court of South Africa, a qualified clinical psychologist and an independent consultant, based in Cape Town. Helen Moffett is an Honorary Research Fellow at the African Gender Institute and a member of the editorial board of the journal Feminist Africa. Dosso Ndessomin is a journalist, chairperson of the Coordinating Body of Refugee Communities (CBRC) and bilingual administrative officer with the International Federation of Building and Wood Workers. He was formerly director of Alliance Française Soweto in Johannesburg. Piers Pigou is Director of the South African History Archive. He was formerly advocacy officer with the Zimbabwe Refugee Rights Project at Themba Lesizwe in Pretoria and Project Manager with the Community Agency for Social Enquiry (CASE) in Johannesburg. Chris Sprigman is Associate Professor of Law at the University of Virginia. He was formerly a Lecturer in Law at the University of the Witwatersrand and law clerk for Justice L.W.H. Ackermann, Constitutional Court of South Africa. Nahla Valji is a Project Manager with the Centre for the Study of Violence and Reconciliation (CSVR) in Johannesburg and the Managing Editor of the International Journal of Transitional Justice. She was formerly Gender Project Officer at the Centre for Human Rights, Pretoria.

INDEX

 A Access (to asylum determination procedures) 89–93, 100–102, 186, 202, 285 administrative justice 29, 53, 71, 74–75, 79, 86n56, 89, 90, 92, 106, 108, 171, 184n7, 209 African Charter on Human and Peoples’ Rights (ACHPR) 225, 245, 246 African Charter on the Rights and Welfare of the Child (ACRWC) 209, 245 Aliens Control Act 36, 48, 57n6, 63, 66, 85n40, 104, 118, 120, 124, 141, 193, 243, 281 amnesty amnesty (SADC) 139, 145 former Mozambican refugees 144–45, 150, 160n7, 275n83, 288n23 apartheid legislation 29, 33 Appeals Board, see Refugee Affairs Appeal Board appropriate alternative care (right to) 190, 245, 269 arrest 39–40, 44, 100, 102, 103–4, 169, 173, 285 asylum procedures, see refugee status determination procedures

B Backlog project 109, 117–32, 176, 181, 284 results 116n88, 128 role of NGOs 118–19, 124, 125, 131 role of UNHCR 117–18, 123–24, 125–26, 127–30 Baragwanath Hospital 255 Basic Agreement 1, 7n2, 47–48, 57, 62, 64 Basic nutrition, shelter, basic health care services and social services (right to) 190, 242, 245, 261, 264, 268, 269 Bill of Rights 113, 168, 170–71, 172, 190, 245, 246, 266, 268–69, 287n9 Border officials 90, 101, 104, 187 C Canadian Charter of Rights and Freedoms 178–79 Cape Town Refugee Centre (CTRC) 251, 255 Centre for the Study of Violence and Reconciliation (CSVR) 133n19, 251 Cessation of Refugee Status 53, 54, 98, 173

332

Child Care Act of 1983 191–92, 193–94, 196, 210n18, 262, 270 treatment of refugee children 171, 187, 189, 194, 196–97, 205, 208–9, 270 child refugees 7, 100, 171, 178, 186–209, 239, 247 children in need (who qualifies as) 191–92, 246, 259, 262 confidentiality (rights of asylumseekers) 103, 170, 225–27, 254 Constitution of South Africa 29, 48, 77, 90, 114n19, 168, 171, 181, 189, 190, 193, 195, 208, 210n13, 224, 239, 243, 245–46, 256, 264, 266–68, 282, 284 children’s rights 171, 189, 199, 245, 264, 267 freedom from arbitrary detention 167, 169, 171, 177, 178 freedom of movement 103, 140, 167, 169, 171, 172, 178 indivisibility of rights 245–47 limitations to accessing rights (limitation clause) 168, 172, 174, 177–80, 246, 268, 280, 287n9 right of access to healthcare 171, 245, 256, 266–67 right of access to housing 171, 245, 269 right of access to social assistance 171, 245, 261, 269 right of access to social security 171, 245, 269 right of access to sufficient food and water 171, 269 right to dignity 171, 224, 245, 268 right to equality 90, 98–99, 171, 216, 245, 260, 267, 275n84 right to non-discrimination 171, 245, 267 Constitutional Court 3, 175, 176, 181, 192, 246, 260, 271n5, 276nn112, 114 Coordinating Body of Refugee Communities (CBRC) 150, 164n77, 254–55, 275n87

Advancing Refugee Protection in South Africa

corruption 28, 35, 38, 42, 43, 92, 109, 111–12, 129, 141, 181, 196 D dependents 34, 127, 182, 188, 191, 227, 236, 238 deportation, see repatriation detention 31, 53, 64, 105, 167–81, 194, 203–5 Lindela (deportation centre) 40–42, 64, 112, 194, 204, 262, 281 refugee camps 141, 145, 167, 168, 181, 182n1 refugee reception centres 53, 110, 167, 168–69, 170, 172–74, 177–80, 238–39 disability 50, 98, 192, 246, 255, 256, 267, 270 discrimination (right against) 202, 208–9 documentation 21, 36, 39, 40, 41, 55, 65, 67, 70, 76, 90, 91, 92, 169, 192, 193, 197, 204, 207, 252 E economic and social rights 143, 246, 247, 266 education (right of access to) 142, 171, 182n24, 189, 206, 209 study prohibition for asylum seekers 104–5, 110, 198, 243 Eligibility Determination Form (EF) 65–66, 67, 73, 100 emergency medical treatment (right to) 36, 245, 252, 259, 267, 272nn33, 37 employment 31, 37–38, 66, 139, 142 equality 98–99, 209 equity 90 European Council on Refugees and Exiles (ECRE) 264 European Court of Human Rights 172 exclusion clause 97–98, 110, 173 expulsion 12, 96, 170 extradition 23, 96, 170

Index

F Fundraising Act of 1974 260 G Gender gender-based persecution 216, 217, 220, 225–29, 231, 233–34 gender guidelines for asylum determination procedures 217–19, 225–27, 236–37 grants child care grants 192, 193, 197, 210n28, 259, 263–64, 276n98 disability grants 193, 259, 260 social grants 259, 261 Green Paper on International Migration 49–51, 85 critiques 50, 55 Task Team 49, 52–54 Guidelines on the Protection of Refugee Women, see UNHCR Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum-seekers, see UNHCR H health (right of access to) 7, 36–37, 142, 171, 248, 249–55, 265, 268 access to hospital services 171, 242, 252–55 access to primary health care 36–37, 171, 242, 246, 251, 255, 265 barriers to access 36–37, 198, 205, 243, 248, 249, 254 in international refugee law 244–45 policy for asylum seekers and refugees 171, 242–70 health screening 249, 252 hearings (to determine refugee status) 61, 69–76, 77–78, 94, 105–6 Human Rights Commission, see South African Human Rights Commission Human Rights Committee (HRC) 251, 273n54

333

I Immigration Act 3, 4, 39, 56, 59n22, 115n52, 116n87, 141, 181, 189, 193–94, 281, 287nn16, 17 implementation (of South African law and conventions) 112, 122–27, 233–34 Internal flight alternative (policy) 95–96, 113n14, 182n3, 219, 230–31 challenges to 230–31 International Conventions 19–23 International Covenant on Civil and Political Rights (ICCPR) 25nn20–21, 30, 44n3, 212n79, 224, 245 International Covenant on Economic, Social and Cultural Rights (ICESCR) 224, 245, 271n17 interpreters and right to interpretation 55, 90, 92, 100, 101, 102–3, 106, 109, 225, 226, 254 J Jesuit Refugee Services (JRS) 114n40, 210n6, 255, 275n87 Johannesburg International Airport 30, 101 Judicial review 79–80, 173, 177 access issues 74 failings of due process 81 right to written reasons 80–82, 92 L Lawyers for Human Rights (LHR) 5, 8n16, 24n11, 48, 58n20, 59nn23, 28, 97, 101, 119–24, 127, 131, 193, 210n29, 255, 260, 275n87, 289n33 legal assistance (access to) 71–74, 77, 78, 79, 91, 101, 171, 183n31, 194–95, 197, 199–200, 205–6, 285 Legal Resources Centre (LRC) 94, 103, 104, 242, 260, 263 legal status 143–44, 198 legality (principles of) 21, 27, 39, 110

334

Advancing Refugee Protection in South Africa

limitation of fundamental rights (section 36 of Constitution) 168, 172, 174, 177–80, 246, 268, 280, 287n9 Lindela (deportation centre) 40–42, 64, 112, 194, 204, 262, 281 litigation 62, 81, 112, 209, 260

as implementing partners 103, 118–19, 124, 249 provision of social assistance and services 90, 118–19, 124, 261, 272n36 non-refoulement 13, 15, 16, 19, 23, 90, 96, 97, 103, 183n3, 184n70

M manifestly unfounded, abusive, fraudulent applications 52, 55, 63, 68–69, 73, 75, 78, 81, 94, 97, 107, 108, 119, 134n48, 173, 204, 280 mass influx 53, 55, 167, 173–74, 175–76, 184nn45, 47, 48, 265 Minister of Home Affairs 3, 24n11, 38, 48, 49, 51, 53, 54, 60n40, 79, 80, 83n7, 86nn52–53, 99, 102, 105, 128, 131, 135n65, 168, 173, 175, 195, 279, 280

O OAU Convention on Specific Problems of Refugees in Africa, 1969 (OAU Refugee Convention) 2, 30, 48, 50, 51, 57n10, 83n4, 96, 98, 113nn1, 18, 126, 140, 143, 152, 159–60, 167, 171, 189, 198, 244, 278, 287n6

N National Action Plan (NAP) 248, 266 National Consortium on Refugee Affairs (NCRA) 7, 52, 54–55, 59nn23–24, 60nn38–39, 84n22, 102, 108, 109, 110, 113n1, 124, 126, 131, 150, 164n78, 206, 208, 216, 275n87, 281 National Department of Health 250, 252, 255, 258, 260, 273n47 National Department of Social Development 258, 259, 260, 261, 262, 263, 275nn98, 100 National Health Act of 2003 250 National Refugee Baseline Survey 242, 270n2, 273n46 Nationality Questionnaire (NQ) 65–66, 67, 70 non-convention persecution 232–34 Non-Governmental Organisations (NGOs) 17, 24, 28, 50, 52, 59n28, 84n29, 85n43, 90, 105, 110, 111, 112, 118–19, 124, 127, 131, 142, 144–45, 187, 200, 206, 207, 233, 243, 249, 251, 253, 255, 256, 259, 260, 264, 282, 285

P particular social group 71, 170, 203, 217, 219, 221 permanent residence 31, 56, 58, 115, 141, 143–44, 145, 147–48, 150, 161, 162, 238, 249, 271n5 permits 66–67, 103–5, 110, 141, 142, 161n31, 173, 175, 183n41, 243, 281 persecution 50, 71–72, 78, 92, 170, 202–3, 207, 215, 217–18, 219–20, 221–23, 229–30, 235 policy-making 3, 36, 47, 153–54, 167–68 Pretoria Academic Hospital 255 procedures (for determining refugee status) 61–86 Promotion of Administrative Justice Act 79, 86n56 R ratified 83, 189, 201, 244, 245, 261 reformulation of refugee law 49, 52 refoulement 13, 177 Refugee Affairs Appeal Board 54, 63, 68, 75, 79–80, 81, 84n36, 86nn51, 52, 92, 95, 99–100, 106, 107, 108–111, 112–13, 124, 125–27, 203, 281 Refugee Reception Centres, see detention

Index

Refugee Reception Officers (RRO) 77, 95, 99, 100, 102, 104, 105, 108, 175, 183n41 Refugee Relief Board 260 Refugee Relief Fund 260–61 Refugee Status Determination Procedures 54, 63–69, 69–76, 79, 119–24, 168–69, 190, 281, 285 Refugee Status Determination Officers (RSDO) 59, 77, 78, 79, 80, 81, 86n54, 95, 97, 99, 102, 105–6, 107, 108, 113, 114n42, 123, 191, 195, 225 Refugees Act 1, 2, 3, 4, 5, 6, 7, 26n31, 47–56, 61, 63, 69, 73, 76–82, 85nn41, 44–49, 89, 91, 95–100, 117, 118, 123, 141–42, 144–45, 161n28, 162nn41–42, 167–78, 170, 171, 172–73, 175, 176, 177, 181, 190, 191, 194, 195, 196, 204, 209, 217, 218, 234, 238, 239, 243, 246, 258, 268, 269–70, 278–81, 283–84, 285, 291–316 Regional Refugee Reception Offices 99, 101, 101, 102, 104, 111, 128, 129, 134n46, 185n75, 188, 195–96, 205, 253, 270n2 registration of refugee nurses 255 regularisation of former Mozambican refugees, see amnesty repatriation 1, 6, 31, 40–42, 52, 53, 55, 81, 137, 143–49, 153, 154, 194, 195, 232, 283 Roll Back Xenophobia Campaign 8n14, 150, 253 rule of law 24, 27, 30, 31, 36, 38–40, 42, 43, 172, 183 S safe third country (policy) 97, 183n3 challenges to 97 social assistance 103, 110, 192–93, 197, 246, 256, 257, 260, 263–65, 269 access to 141, 142, 192, 193, 259–62, 269, 272n27 barriers to access 198, 246, 260

335

social group 217, 218, 234–36 social security 171, 182n25, 256, 257, 265, 269 socio-economic rights 187, 190, 194, 233, 246, 257, 266, 282 South African Human Rights Commission 39, 48, 51, 58n20, 59nn23, 28, 68, 101, 253, 260, 281 South African Nursing Council (SANC) 255 South African Police Service (SAPS) 39–40, 111, 187, 194, 209, 244, 285 Southern African Development Community (SADC) 30, 34, 43, 49, 51, 161n22, 281 spouse 221 Standing Committee for Refugee Affairs 67–68, 69–70, 74, 75, 76, 78, 84n36, 91–92, 93, 94, 95, 97, 98, 99, 105, 107–8, 109, 110, 115n59, 118, 123, 128, 175 T trafficking 187, 206–8, 237–38, 283 training (of officials) 122, 218, 225, 240n2, 249, 284–85 Tripartite Agreement 62, 137 U UN Conventions UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 218, 225, 234, 245 UN Convention on the Rights of the Child 183n30, 199, 201, 202, 211n55, 212n79, 213nn97–99, 101, 245, 264, 271n17 UN Convention on the Status of Refugees, 1951 19–23, 30, 48, 57n10, 83n4, 98, 113n1, 140, 144, 162n40, 167, 170, 171, 178, 180, 189, 198, 203, 204, 213nn97, 100, 215, 217, 218, 219, 221, 230, 232, 235, 244, 271n17, 278, 287n6

336

Unaccompanied (foreign) minors 100, 101, 178, 180, 186, 187, 188–89, 191, 196, 198, 199, 204, 205–6, 208, 209, 262, 264 access to social assistance 171 undocumented migrants 33, 179–80, 181, 189, 207, 280–81 United Nations High Commission for Refugees (UNHCR) 1, 6, 7, 12, 13, 15, 18, 23, 24n2, 47, 48, 51, 54, 58n20, 59nn23–24, 28, 62, 83nn5–6, 84nn22, 29, 32, 85n43, 90–91, 94, 101, 103, 128, 136, 140, 145–46, 149, 150–52, 153, 161n30, 167, 168, 169, 171, 173, 174, 178, 181, 187, 193, 201, 208, 216, 217, 223, 235, 238, 239, 242, 248, 251, 253, 260, 270nn1–2, 275n87, 282, 283 UNHCR Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylumseekers 176–77, 193, 195 UNHCR Guidelines on the Protection of Refugee Women (see guidelines) 218, 239 Universal Declaration of Human Rights (UDHR) 13, 20, 25n18, 99, 171, 224, 245, 248, 279, 287n6

Advancing Refugee Protection in South Africa

universality 267 V Vienna Declaration and Programme of Action 246, 248 W Well founded fear of persecution 202, 219, 231–32 White list 76, 215 White Paper on Refugees 43, 51–52, 53–54, 175–76 Task Team 52–54, 96, 176 Women refugees 7, 100, 151, 178, 180, 207, 214–40 Work and employment (asylum seeker rights to) 37–38, 182n24 prohibition on right to work 104–5, 110, 114n36, 243 World Health Organisation 24n2, 244, 248 X xenophobia 3, 42, 134n57, 141, 148, 150, 153, 161n35, 181, 205, 251, 266, 281