On 30 October 2019, three weeks after the peaceful sit-in began in Cape Town, the South African Police Service (SAPS) arrived at the Waldorf Arcade in downtown Cape Town – which houses the UNHCR offices – and gave the refugees time to pack up their belongings and clear out. This followed the granting of a court order sought by the building’s owners to remove the refugees. After issuing repeated warnings to evacuate the building and non-cooperation on the part of the refugees, the SAPS began to forcibly remove the people. They made use of stun grenades and water cannons, and fired into a crowd comprised of both adults and small children. The police also arrested approximately 100 people at the scene. Footage of the chaos which ensued shocked many, particularly images and video showing young children being pulled from the arms of their mothers by police officials attempting to execute arrests. The events resulted in up to seven children being reported missing, with no information as to where police officials took them. 

With the violent history of xenophobia in the country, the refugees and asylum-seekers, arguably rightfully so, fear for their lives and livelihoods in South Africa. Since 1995, the country has shown great and consistent intolerance for non-South Africans living within these borders. With over 10 recorded xenophobic events in recent history, this intolerance has manifested in the death and destruction of the property and livelihoods of those who fall into this undeniably vulnerable group. Their request to be resettled is founded in a bona fide fear of further harm to them and their families. 

While the resettlement process is not new and is built into the framework of the UNHCR, which recognises that vulnerable groups may not always find the safety they seek in the first country from which they seek asylum, it is not easily executed. Resettlement is understood as the transfer of refugees/asylum-seekers who have fled their countries of origin and are in “first refuge countries”, to another State that has agreed to admit them as refugees and grant them permanent settlement and, eventually, an opportunity for citizenship. An example are Somali nationals who fled conflict and insecurity and sought asylum in countries like South Africa and Kenya, who for various reasons, are relocated to countries like Australia and Canada. 

At this juncture, it is important to understand who qualifies as a refugee, as global economic shifts have resulted in a change in the nature of migration. The 1951 United Nations Convention Relating to the Status of Refugees, defines a refugee as someone who, 

“…owing to 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 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.”

Only individuals who fall into the above criteria and have been so recognised by first refuge countries, are considered to be refugees. Those who have begun the process but have yet to be afforded refugee status are considered asylum-seekers. Therefore, economic migrants are not covered by any legislation or international law geared towards refugees and asylum-seekers. 

Those refugees who are not receiving adequate protection in first refuge countries, or are unable to settle there permanently, might be eligible for resettlement in States which are UNHCR resettlement partners. On record, there are only 29 of these countries and in 2018, only 27 accepted refugees (almost 55 700) for the purposes of resettlement. Canada, the United States, Australia and the United Kingdom are the top resettlement partners. Resettlement is also an available option for refugees in South Africa. According to Tina Ghelli, the UNHCR’s Senior Regional External Relations Officer, not many resettlements from South Africa were carried out until the 2008 xenophobic attacks, which were among the deadliest to date. It’s important, in light of the current demands by the refugees, to understand what the resettlement process entails. 

There are preconditions to be met before one is resettled. First, an applicant must be considered a refugee by the UNHCR (in terms of the definition in the United Nations Convention Relating to the Status of Refugees). Second, the applicant must show that all prospects for other durable solutions (local integration and voluntary repatriation) were assessed, and that resettlement is the most appropriate solution. Once this is done, the UNHCR must prioritise on a case-by-case basis, based on urgency and need, for example. The recognised resettlement submission categories include legal and/or physical protection needs, survivors of torture and/or violence, women and girls at risk, as well as the lack of foreseeable alternative durable solutions. 

The UNHCR in Cape Town has issued a statement regarding the demands for resettlement and indicated that the process must be followed before resettlement and, of course, because of the evaluation, it will take time. In addition, even if the recommendation for resettlement is made, because of the competition for limited space in the receiving nations, ultimately the resettlement country has discretion as to who is accepted.  It is clear then, that without formal application for resettlement, it is practically impossible to resettle anyone. 

The above absolves neither South Africa nor the UNHCR from the harm that has befallen these vulnerable people. Xenophobia has yet to be addressed with sustainable solutions by the South African government, with even the Police Minister denying that the atrocities that occurred in September could be classified as xenophobic. The failure on the part of the Department of Home Affairs (DHA)  to expeditiously process applications for refugee status, which allow for the access to fundamental human rights, results in uncertainty and insecurity. 

Too many asylum-seekers spend years in limbo and unable to establish a life in the country because of their uncertain status.  For many, resettlement is the only true option, but without having been recognised as refugees in South Africa, their options dwindle exponentially.  

There are questions of capacity when it comes to the DHA, and indeed the UNHCR, which may or may not be easily resolved, as well as a need to rethink how we integrate refugees and asylum-seekers into the South African social fabric to address and prevent xenophobia. None of these questions are unanswerable. Political will and concerted, conscious efforts that address the asylum system, the policing of xenophobic offences and policy must all be addressed to find durable solutions. 

In the meantime, the people stationed in Cape Town and Pretoria must be treated with compassion, while assuring the maintenance of public order and guaranteeing the safety and dignity of all involved. 

By Ms Rebecca Sibanda: Legal Officer, Centre for Constitutional Rights
11 November 2019