As part of a public consultation process, The Department of Home Affairs (DHA) released its Green Paper on International Migration. ACTIVATE! Leadership as a youth based organisation analysed the document and presented recommendations.
The Green Paper has both problematic and encouraging aspects which this report will try to engage with, as well as provide some recommendations.
Organisations collaborated on a discussion document to submit to the Department of Planning, Monitoring and Evaluation (DPME) for the published International Migration Green Paper. The aim of this collaboration was to provide a unified voice on what the issues and solutions civil society has in regard to the aforementioned pieces of legislation.
The outcome of the discussion were solutions that spoke to the language and tone of the Migration policy- specifically in regard to the glaring class-distinctions that the policy seems to make- perhaps unwittingly.
POSITIVE ASPECTS OF THE GREEN PAPER:
? The department of home affairs is correct in pointing out that the current South African immigration policies are largely based on Colonial and Apartheid policies and conceptions of migration. The recreation of the immigration policy to address the issues around the favouring of Europeans over Africans is necessary and something that should be welcomed.
? The Department is also right in stating that the 1999 White Paper failed to anticipate the additional budget, resources and capacity for managing South Africa’s current migration needs. The constraints on the processing of asylum seeker applications should be addressed, but in addition the state must ensure the human dignity of all who enter South Africa.
? The proposed solution around SADC integration and skills development are adequate and implementable. The proposal for low-skilled regional visa has the potential to help the state better manage regular migration if it is well-managed and regulated.
? The documents willingness to engage with South Africans in the Diaspora seems like a positive step towards attracting skills and income from South Africans abroad, however this section of the paper needs to be better elaborated because it is not really clear.
? The green paper has outlined a real issue that South Africa faces, that is that the country needs skilled professionals and currently attracting or retaining these skilled individuals has proved difficult. In this regard, the Green Paper stipulates a proposal to award permanent residence to qualifying international migrants this is a very positive step towards fixing the skills shortage problem and to foster better relations with fellow Africans.
? Although the Green Paper rightly acknowledges the view that ‘foreigners are invading South Africa and stealing jobs’ is grossly exaggerated, there’s no clear and direct condemnation in the paper against xenophobia.
PROBLEMATIC ASPECTS OF THE GREEN PAPER:
- The asylum seeker application process
- The Green Paper does not address the core role of the asylum processing system.
- The Department of Home Affairs claims in this paper that many economic migrants are abusing the current system without engaging with reasons as to why economic migrants should not be granted asylum, especially when economic troubles are often linked to political instability and other problems.
- Furthermore, the DHA provides no evidence of how asylum seekers abuse the system and yet it uses abuse as a reason for many of the new regulations.
- The Green Paper also does very little to acknowledge current system failures from the Department in the process or to address the fact that it will take years for asylum seekers to navigate the adjudication process due to the high backlogs .
The coalition notes with concern that the manner in which migrants seem to be categorised is largely reliant on the class position of the migrant. This means that, too much value is placed higher up on the scale of migrants- this becomes problematic when you consider who it is in particular that may be in need of greater assistance.
Suggestions from the coalition speak to the fact that the policy needs to explain how it won’t actually close the door on the people who need the protection of government. Under the current draft, the appearance of the legislation seems to protect the educated and financially capable migrant, and very few mechanisms are practically reachable by the non-mobile migrant- who may perhaps be requiring asylum. The situation is exacerbated by the possible time-frames for processing of applications and so forth. Which leads us to the next point.
The coalition notes this deficiency on 2 counts: that of the Department of Home Affairs, and that of the South African Border Control. This deficiency, whilst unfixed, perpetuates a situation in which many migrants are likely to remain undocumented due to the issues they may encounter when engaging the system itself.
At this rate, refugee social services is inundated with requests and generally cannot act quicker than it needs to. This means that when individuals are now inside the territory of the country, even keeping track of their movements becomes a logistical nightmare because they generally do not have adequate places of residence at the time at which their application is being processed.
When it comes to border patrol, even in the policy document itself, there are many averments to the inability of the state to ensure that there is secure passage of people in and out of the country. This is problematic on many levels, which includes the possibility of increased drug-trades and human-trafficking.
It is important the policy invests more time in spelling out how these gaps in capacity and personnel is likely to be fixed in the near future.
Integration of Migrant Communities
The coalition and member organisations were some of the first responders in the various cases of xenophobic violence in and around KwaZulu Natal, and so this issue cannot be closer to home. The struggle primarily, in the view of the discussants, is that migrant communities generally group together, either with family members or other individuals who are not natural citizens. Whilst this is human nature, it is problematic because it creates segmentations in already existing communities and the process of integration is that much more difficult.
It is important that there exists a multi-sector approach to integration of the migrant communities into ‘migrant-friendly’ communities as identified by the government and other stakeholders. The policy and manner of integration needs to be more pronounced however, as we cannot have a situation in which integration means ‘forced assimilation’ or is as lax as the placement of individuals. South Africa is not a homogenous country, so the diversity itself needs to form part of the positive measures of integration.
Ultimately, the coalition feels these are the steps that need to be undertaken in the reworking of the policy document:
- Focus groups in each province with prominent civil society partners in the area and field of work. These focus group discussions need to be accompanied by other community engagements such as dialogues. Placement needs to be in areas most affected by xenophobic violence as well as areas in which large enough non-nationals may have been unaffected by violence so that there can hopefully be a clearer picture presented.
- Engaging more with civil society organizations who were first responders to xenophobic violence.
- Engaging with foreign nationals and the coalitions who are part of this field of work.
SYSTEMIC PROBLEMS IN PROCESSING
Making generalisations about asylum seekers’ legitimacy based on what country they come from is highly problematic because certain minority groups are persecuted in countries that could be defined as stable. The immigration paper should avoid such broad generalisations.
The Green Paper mentions and divides asylum seekers based on their potential skills. Determinations should not be based on the asylum seekers skills, but on persecution. The asylum seeker process is to protect persecuted people not identifying skills for the South African economy. While skills are important, it is not the purpose of the asylum seeker process.
The paper mentions the application and appeals process takes a while and has therefore became an attraction for many, however for many this tedious process puts a huge burden. The long waiting periods, short duration of permits, taking time off work, finding childcare, transport, and many visits for one renewal is something that the department should look into fixing because it will help both the government and asylum seekers. Legitimate asylum seekers should not be punished for system failures.
Asylum seekers and refugees experienced corruption at multiple stages of the asylum application process and the process for most is already longer than 180 days as stipulated in current legislature. The green Paper does not articulate how the current proposed solutions will address human rights violations in our asylum seeker and immigration system.
Many of the proposed policies for asylum seekers are unlikely to work given the history of capacity and implementation issues within the asylum system and due to the often onerous requirements placed on asylum seekers. A likely outcome is an increased number undocumented asylum seekers who will have international protection needs as well as increased vulnerability to criminality and labour exploitation in South Africa
INAPPROPRIATE SOLUTIONS TO CHALLENGES IN THE ASYLUM SEEKER SYSTEM
The solution the Green Paper proposes is that “Asylum Seeker Processing centers should be established closer to the borderline,” however the paper fails to clarify whether such Asylum Seeker Processing centers will in fact be more like Detention Centers or to mention how long people will be in these centers, especially since people can be in the system for years before they are approved as refugees.
The Green Paper’s policy recommendation to remove the right to work for asylum seekers further reinforces the idea that foreigners are stealing jobs.
The Green Paper recommends removing the right for asylum seekers to work and study, this will makes it difficult for asylum seekers to survive. The paper does not mention current individuals who are in the process of applying for asylum and are working and studying. Clarity about what will happen to these individuals is necessary.
The Green Paper also suggests that asylum seekers should be held in administrative detention centers. These centers will put a huge burden on the state and they conflate seeking asylum with criminality. Furthermore, the Constitution’s Bill of Rights applies to ‘everyone’ in South Africa unless specifically mentioned. Asylum seekers therefore enjoy the same human rights as South African citizens to dignity, life, freedom and security, administrative justice, privacy, religion, freedom of movement, and access to information and courts. These detention centers are a direct contradiction of this.
The Green Paper indicates that asylum seekers will not be allowed to work nor integrate into local Communities. The Constitution guarantees the right to education to ‘everyone’, including foreign children, and the Green Paper has not elaborated on this aspect of the proposed detention model.
The Green Paper provides no information on how South Africa will afford building all these asylum seeker processing centers. There is no plan which indicates how it will meet the basic needs of thousands of people who will be trapped in limbo and denied basic human dignity which the right to work affords. Let alone health provisions and other basic human rights enshrined in the Constitution and Bill of Rights.
The green paper proposes a number of ongoing interventions that are already applied to existing asylum seekers, refugees and even to foreigners living on work permits in South Africa. Such interventions include:
A marriage security clearance issued by DHA prior to solemnisation of marriages involving foreign nationals. These proposals are in clear violation of human rights and human dignity. These measures affect even marriages between asylum seekers themselves and/or refugees and work permit holders who want to get married in South Africa. The proposal is unconstitutional.
The proposal promotes othering and undermines government efforts for communities’ integration and social cohesion between refugees and their South African counterparts.
One of the negative legacies of apartheid that is enduring and tearing the family structure in the South African society is the high number of fathers who do not take care of their children. The socio-economic cost of fatherlessness to the country and to the black community in South Africa is unquantified and the need for positive parenting is ever pressing.
The proposal in the Green Paper seeks to regulate interpersonal relationships and does not take into account the fate and interests of children who are likely to be born from relationships between foreign nationals and South Africans. These children would be forever disadvantaged and deprived of a positive environment both parents would provide for their development. Children are denied their right to dignity and proper parental guidance.
Removal of a right to apply for PR on the grounds of years spent by a refugee in the country. The proposal is in violation of article 34 of the 1951 UN convention regarding the right of refugees to naturalisation. Furthermore, this proposal undermines integration of refugees and efforts for social cohesion since the grounds on which a refugee obtains PR are that he/she remains a refugee indefinitely. This provision is made to allow the refugee to integrate and live a normal life, in dignity. The proposal perpetuates the status of refugees for all descendants of refugees. Yet these children would grow up in communities together with South Africans and would know no other home except South Africa. The current law that links PR to naturalisation should remain and be applied.
COMMENTS AND CONCERNS
- Government must scrap the Refugee Amendment Bill immediately as you can’t have a ‘public consultation’ on international migration while at the same time trying to push through legislation.
- Home Affairs has failed to substantiate its claims that the reason 90% of asylum seeker applications are rejected is because of widespread abuse.
- The Green Paper completely fails to acknowledge, discuss or propose solutions to the wide spread corruption, discrimination and lack of capacity in the processing of asylum seekers. The fact that the Musina Refugee Reception Office has a 0% grant rate for asylum seeker applications, is a clear indication that the system is in crisis.
- The Green Paper does not outline how it will increase administrative capacity for asylum seeker processing, or ensure the systems core role, of protecting refugees and ensuring administrative justice is realised.
- Home Affairs should not make broad generalisations about asylum seekers’ legitimacy based on what country they come from, and should not consider granting asylum based on an asylum seeker’s skills or financial situation.
- The Green Paper fails to discuss, or propose solutions to systemic problems at Refugee Reception Offices (RRO), including very few asylum seekers getting into an RRO on their first visit, waiting on average over a year for a status determination interview, and less than half of asylum seekers receiving their section 22 permits the first time they visit a RRO. There are also long queues at these offices, where asylum seekers are threatened with extortion, violence and crime, as well as face health and sanitation issues.
- The Green Paper doesn’t make proposals around how to ensure asylum seeker processing is done fairly, impartially and without unnecessary delays. The current high level of rejections means that there is a very high number of appeals, creating a backlog with Refugee Appeal Board. There must be greater transparency and information about the application process, better training of Home Affairs interpreters and due notice to applicants given before interviews.
- The Green paper also does not outline how Home Affairs will ensure that Refugee Status Determination Officers will make decisions based on clear reasons, relevant considerations and in line with the law.
- The Department of Home Affairs MUST ensure administrative effectiveness does not come at the cost of administrative injustice, as per the promotion of the Administrative Justice Act.
- It is disappointing the Green Paper does not propose more effective ways of relieving the administrative burden on the asylum seeker processing system, such as increasing the validity period of asylum permits, and ensuring that asylum seekers who move can renew their permits at their nearest RRO. At present there is overwhelming evidence that is extremely hard to renew at a different office and that inter-office file transfers don’t happen properly.
- Home Affairs must also comply with court orders and immediately cease with fining people for expired permits. Instead they should give more notice of interviews, explain what interviews will cover in advance, ensure proper interview durations and allow asylum seekers to fully explain their claim.
- Any discrimination and biases against asylum seekers cannot be tolerated, and this must be addressed.
- It is disappointing that the Green Paper fails to even mention the overwhelming evidence that unfair decisions have been made on asylum seeker applications that violate both refugee law and the Constitution.
- The Green Paper appears to be obsessed with alleged abuse and security threats, and fails to engage with our commitment to human rights, and the right to dignity.
- If over half of asylum seekers surveyed have been in the system for over 180 days, then it’s clear the current system fails to fulfil the Regulations to the Refugee Act (No. 130, 1998). It’s disappointing that the Green Paper does not mention this, nor outlines how this will be addressed.
- The Green Paper’s language is problematic, as it conflates migration with criminality. Research shows migrants are not more likely to engage in criminal actions, than the general South African population.
- It is extremely disappointing that the Green Paper fails to engage with the above issues, and instead proposes a large infrastructure project to build Asylum Seeker Processing Centres on our borders as a solution.
- The Green Paper fails to outline how these processing centres will not be de facto detention centres like Lindela where there have been well-documented human rights violations.
- It is deeply disturbing that the Green Paper references ‘common international practice’ of processing centres used in Australia. Australia has been condemned by countries all over the world for its processing centres which are in fact detention centres where gross human rights violations take place.
- It makes no sense to close Refugee Reception Offices and instead open processing centres. How is it that we don’t have money for computers to reopen the office in PE, but can build a new facility in Lebombo?
- It is difficult to engage with the Green Paper when it does not outline the costs associated with processing centres nor how Home Affairs will meet the housing, food, water, sanitation, health and education needs of those held in Asylum Seeker Processing centres. This will surely be a huge cost to the state, meaning less money to deliver services to all in South Africa.
- The Green Paper appears to suggest outsourcing South Africa’s responsibility to ensure the human dignity of asylum seekers to international organisations such as the UNHCR and the Red Cross.
- There is a growing body of empirical evidence indicating that even short periods of time in detention facilities have long term negative impacts on mental and physical health. There is no evidence that detention practices have any deterrent effect on irregular migration. There is a growing international consensus that there is no justification for detaining children.
- Home Affairs’ current immigration detention regime has a history of unlawful activity; one study analysed 90 unlawful detention cases (brought over a 23 month period) and found that the cases cost the Department at least R2.5 million in legal fees and R2.6 million in costs relating to those unlawful detentions. Further, as of March 2013 there were R503.3 million in pending legal claims against Immigration Affairs. These figures indicate systemic difficulties surrounding Home Affairs’ detention practices and call into question the Department’s ability to implement a detention regime that would meet human rights and administrative justice standards.
- The Green Paper contradicts itself. Its policy recommendation is to remove the right to work for asylum seekers. One could only be pushing for such a policy change if some in Home Affairs agree with the idea that foreigners are ‘stealing’ jobs. But the Green Paper itself debunks this statement, stating that “South Africans make up over 90% of those employed in every sector”. The real issue, is not that foreigners are stealing jobs, but what the Green Paper rightly points out, that South African employers are breaking the law by wanting to pay the cheapest wage possible, and are pitting poor asylum seekers and migrants against poor South Africans, fuelling tension in poor communities.
- The Green Paper acknowledges xenophobia, a word government has often avoided using. However, the definition of xenophobia in the Green Paper fails to acknowledge the frequent violent nature of xenophobia or the institutional xenophobia that denies non-nationals the right to basic education, health and other services in South Africa. Furthermore, misinformation and comments from public officials have fueled xenophobia, and that this must be addressed.
- The Green Paper talks about push and pull factors in migration, but does not propose solutions, such as communicating information about applying for asylum to deter those who are not eligible, as well as trying to address the persecution that forces many to flee.
- Establish Asylum Seeker Processing Centres (ASPCs) but only for those who will need to enter the country in the future.
- Strengthen the capacity of the RRCs to cater for existing asylum seekers.
- Provide legal immunity to asylum seekers whose permits are no longer active to encourage them to come forward to renew them.
- If need be, distinguish between asylum seekers and economic migrants among the existing applicants, and enable them (in a way or another) to live legally in the country. This recommendation owes to the fact that due to corruption and other systemic failures, South Africa has tried (through Operation Fiela and the Lindela Repatriation Centre) to identify and deport all the undocumented immigrants. In addition, a blanket expulsion will not bode well with regional politics. Furthermore, while it can be costly or even impossible to arrange deportation in a humane manner, if illegal immigrants could possibly be apprehended in their numbers in spite of corruption in both the DHA and security apparatuses – keeping them in the country is more economically viable.
- Do not strip the right to work and study from asylum seekers because government can’t cater for them. They have and can meet their own basic needs while contributing to the economy without government hand-outs.
- Do not strip their right to marriage with whoever they want, as it is simply one of every person’s inalienable human rights and constitutional rights. If challenged in court, such measure to ban them from marriage could cost government a fortune. Fraudulent marriages do exist as a means to acquire immigration permits in the country. It is not a unique phenomenon in South Africa and should be discouraged. Government should not attempt to regulate relationships but through social workers follow the progress of relationships that declare intention to proceed to marriage, intercept any corruption and fraudulent activity but also encourage genuine marital unions to be formed and developed.
? Better communication about information relating to applying for asylum to deter those who are not eligible and better training and security for DHA staff.
? More efforts to address socio-economic and persecution that is causing people to flee.
? It’s critical that asylum seeker processing is done properly.
? Increase transparency and information about the asylum application process. Increase training of DHA interpreters.
? There must be a greater oversight process. DHA must be held accountable for violations of the law. Increase capacity of the Refugee Appeal Board. Both greater administrative effectiveness and administrative justice in the asylum system.
? Asylum seekers should be allowed to work and study within South Africa as well as access to basic social rights and they should also be allowed to integrate into communities once they have been awarded asylum seeker permits. Where a period of not more than one year should pass without the awarding of refugee status.
? The third-country is mentioned in this document, however the DHA needs to clarify as to what extent it will be applied, especially since many of the countries that asylum seekers will pass through do not have well established judiciaries that can be trusted to protect the human rights and dignities of the individuals concerned.
The statistics supplied by DHA in the Green Paper reveal that in the past 22 years, South Africa has given refugee status to 115,000 individuals. That is roughly 5,200 refugees per year and this is quite a small number. The statistics also say that about 78,000 asylum applications are still active and that 980,000 applications are dormant. This points to an administrative problem and should be dealt with by acknowledging the lack of administrative capacity and by strengthening the RROs to process applications timely.
A new proposed legislation will not solve the problem but pushes it forward to burden future South African generations with the responsibility to address the situation which by then would have been intractable.