At the outset, a distinction needs to be drawn between the Refugees Act and the Immigration Act, although both regulate the movement of people into the Republic. The Immigration Act regulates the admission of foreigners into the country, whereas the Refugees Act gives effect to the international principle of providing refuge to aliens who are fleeing from persecution. There is a duty on the host country not to return them to countries where their life or freedom would be in danger because of their race, religion, nationality, membership of a specific social group or their political opinion. South Africa is both a signatory of the 1951 United Nations General Assembly Convention Relating to the Status of Refugees (the 1951 Convention), as well as African Union’s (the AU) Convention Governing Specific Aspects of Refugee Problems in Africa. Unfortunately, according to the Department of Home Affairs (DHA), the asylum process appears to be greatly abused by “economic migrants”, i.e. people who leave their country due to bad economic circumstances.
The asylum process has been plagued with systemic corruption for years. A 2015 report by Lawyers for Human Rights and the African Centre for Migration and Society found that 51% of asylum-seekers experienced corruption while waiting in the queue at the Marabastad Refugee Reception Office in Pretoria. This has led to an aggressive investigation by the DHA, known as Operation Bvisa Masina (throw out the rot) which led to the arrest of 30 officials in December 2015.
In response to the above, the Bill aims to provide procedural measures to combat corruption and, amongst other things, provides disqualification and cessation provisions of refugee status. The Bill also provides for the re-establishment of the Standing Committee (SC). The SC amongst other things reviews the decision of the Refugee Status Determination Officer (RSDO) to reject an application for asylum on certain grounds; may monitor decisions by the RSDO and determines the conditions in terms of which an asylum-seeker may work in the country. The question however remains whether the Bill provides practical procedural safeguards to combat corruption and whether it does not unduly impact on the rights of asylum-seekers and refugees. Above all, the Bill must give effect to the right to human dignity and to fair administrative action as guaranteed by sections 10 and 33 of the Constitution respectively.
An overriding concern with the Bill is the lack of oversight of administrative decisions and the discretionary power awarded to one individual, i.e. the RSDO, to determine the status of a refugee. The Bill specifically substitutes the Status Determination Committee (RSDC), which would have come into effect with the Amendment Act of 2008, with a RSDO. This discretionary power of the RSDO is worsened by the fact that the Bill introduces additional grounds for exclusion of refugee status if the RSDO has “reason to believe” that the asylum-seeker has committed any of the acts listed in the Bill.
The additional grounds for exclusion include an offence in relation to a South African travel document or permit, as well as the failure by asylum-seekers to make application for asylum within five days of entry in the country in the absence of compelling reasons. These grounds are in addition to those provided for in article 1F of the 1951 Convention, which provides for the denial of refugee status to individuals guilty of acts of war crime, crimes against humanity, serious non-political crimes, as well as acts contrary to principles of the United Nations. The Bill is also silent on the type of information that will be relied on by the RSDO to come to such a conclusion.
The grounds for cessation of refugee status also do not adhere to international standards and will lead to arbitrary application. For instance, in terms of Article 1C(1) of the 1951 Convention, if a “person voluntarily re-avails himself to the protection of the country of his origin” he ceases to qualify for refugee status. The Bill provides for a similar provision but includes the words “in any way” which not only broadens the application of this provision but also loses sight of the fact that a refugee must have the ‘intention’ to re-avail themself as stipulated in the guidelines to the 1951 Convention. In its current form, it can mean that when a refugee for instance applies to their Country of Origin’s Embassy for their birth certificate he/she might be considered to re-avail themself to the protection of their country.
The functions of the SC are also questionable as it only has to review a decision by the RSDO if an application for asylum is rejected due to being “manifestly unfounded, abusive or fraudulent”. There appears to be no obligation on the SC to monitor or review any other decision taken by the RSDO. The lack of independence of the SC is also questioned as all supervisory work of the SC is to be performed by members of the DHA. Therefore, not only does the Bill fail to provide enough checks and balances regarding the decision-making power of the RSDO, in addition officers of the DHA will supervise the RSDO who happens to be a member of the DHA.
The crime prevention and integrity measures proposed by the Bill are admirable but no provision is made for the reporting of corruption, which points to a serious lack of consideration.
Lastly, the Bill provides for a vague “assessment test” to be conducted when an asylum-seeker applies for an asylum visa, which is the visa issued by the RSDO pending the outcome of an application for asylum. The RSDO must determine an asylum-seeker’s “ability to sustain himself or herself, and his or her dependants, with the assistance of friends, for a period of at least four months.” If it is found that the asylum-seeker cannot sustain himself, he/ she “may” be afforded shelter and necessities provided for by the UNHCR. If the RSDO determines that the asylum-seeker can for instance sustain himself for four months or is offered basic shelter and necessities by the UNHCR then the right to work may not be endorsed on their visa. The Bill is silent on what will be considered “sufficient means”; how long the UNHCR assistance will be and what happens if the four-month period has lapsed Does it mean a re-assessment will be done or does it mean the right to work can then be endorsed on such a visa?
In conclusion, it is important that the nation’s asylum-seeking process match international standards and give effect to the foundational values of human dignity and equality to which the Constitution aspires. The objectives of the Bill and the advancement of human rights might be completely defeated by not ensuring that procedural safeguards are put in place to ensure independent decision-making and impartial review of decisions.
By Christine Botha: Legal Officer, Centre for Constitutional Rights