According to the UNHCR’s Mid-Year Trends 2018 Report, South Africa hosted 89 285 refugees and 184 200 asylum-seekers in 2018. Refugees are individuals who have been granted asylum status and protection by the state, while asylum-seekers request recognition and protection as refugees but applications remain under consideration. The narrow grounds for granting refugee status to asylum-seekers are determined in terms of the Refugees Act of 1998 (the Refugees Act), whereas the Immigration Act of 2002 regulates the movement of foreigners into the country who seek to visit or stay. Unfortunately, the asylum-seeking process has been riddled with corruption in the past. Economic migrants seeking a better employment climate have attempted to gain access via the asylum-seeking process.

South Africa’s refugee figure stands against a backdrop of over 25.4 million refugees globally, the highest number of refugees ever recorded, according to the UNHCR. Refugee populations continue to accrue today, in large part due to civil wars and climate change. In South Africa, the matter is also exacerbated by the fact that the Department of Home Affairs (the Department) is struggling to clear a backlog of 150 000 refugee status appeals. According to recent media reports, the Department has sought assistance from the UNHCR.

South Africa has the legal tools for refugees to exercise their rights, secure protection, and successfully integrate. South Africa is a signatory to both the 1951 UN Convention Relating to the Status of Refugees (UN Refugee Convention) and the 1969 African Union’s Convention Governing the Specific Aspects of Refugee Problems in Africa (AU Refugee Convention). These conventions, providing the fundamental concepts for refugee protection, are primarily given effect through the Refugees Act. The Refugees Act, in line with the core principle of non-refoulement in the UN Refugee Convention, prohibits the return of refugees to a country where their life or freedom would be threatened because of their “race, religion, nationality, membership of a particular social group or political opinion”.

The Refugees Act guarantees not only the protections outlined in these international conventions, but also freedoms to move and work. The latest amendment to the Refugees Act, by the Refugees Amendment Act of 2017 (which is yet to come into operation), provides positive crime prevention and integrity measures to root out corruption, which has plagued the asylum-seeking system. However, despite these positive amendments, concerns have been raised by civil society about the incongruity of certain domestic provisions with international law. A clear example of this is amendment 4(1)(i) introduced by the Refugees Amendment Act of 2017, which provides an individual five days to submit an application for asylum. This article does not account for individuals who, while abroad, determine that they cannot return due to risk of persecution resulting from events occurring after they left their country of origin. This provision directly contradicts article 5(1) of the AU Refugee Convention, which underscores the “voluntary character of repatriation”. It also contradicts article 33 of the UN Refugee Convention, the core principle of non-refoulement,which prohibits the expulsion or return of a refugee whose life or freedom is at risk. South Africa has a responsibility to reform this provision and align it with regional and international humanitarian standards.  

Legislative implementation, insufficient administrative capacity, and corruption are major obstacles faced by South Africa in giving effect to its international and domestic obligations of refugee protection. Due to bureaucratic failures, corruption, and incompetence, the safeguarding provisions of the Refugees Act have been poorly implemented. Section 21(4) of the Refugees Act— concerning an individual’s right to apply for asylum — has been breached through the arrest of asylum-seekers at borders, arrest of asylum-seekers who enter with false documents, arrest despite stated intent to apply for asylum, and arrest stemming from access problems to Refugee Reception Offices (RRO). 

Due to insufficient administrative capacity, a lack of knowledge about asylum-seekers’ and refugees’ rights, and inaccessible RROs, asylum-seekers and refugees are left unable to reach a safe haven or implement the rights to which they are domestically and internationally entitled. Cape Town’s RRO was once the second-busiest in the country, and is essential for sustained access to asylum procedures, unification of family units, and systematic adjudication.The re-opening of the Cape Town RRO has been the subject of various Court orders.While Durban, Musina, and Pretoria host fully-functional RROs, the situation in Cape Town remains precarious.  Recent media reports state that the Department intended to open a new office in Maitland in June 2019.

With limited access to an RRO in Cape Town, asylum-seekers and family members must travel to Durban, Musina, and Pretoria every two to six months. These journeys must be undertaken until final refugee status is determined. This ranges from five years to over a decade in some cases, according to media reports. Refugees are often unable to visit alternate RROs for asylum claims or administrative action, due to health concerns, financial limitations, and/or inability to take time off work. It is critical for the Department to reopen a fully-functional RRO in Cape Town, one that must be properly maintained to efficiently provide services to urban asylum-seeking clients and refugees.   

In light of the realities faced by asylum-seekers in South Africa, much work lies ahead in order truly to celebrate World Refugee Day. The discrepancy between outstanding written rights and poor legislative implementation must be addressed, and the Department should be held to account. While South Africa is host to a large contingent of the continent’s refugees and continues to face resource constraints, this does not detract from its international and domestic obligations to providing a safe refuge for asylum-seekers. More needs to be done to ensure South Africa implements its legislated refugee policies, improves oversight measures, and provides reasonable review of each asylum claim. 

By Ms Myra Sivaloganathan: Intern, Centre for Constitutional Rights
19 June 2019