Home affairs’ mean-spirited new immigration law should be canned

Lawyers for Human Rights says white paper violates SA’s constitution and international human rights laws

We all knew foreigners, most with degrees, who worked in SA for a decade or so helping build our new democracy. Who found local partners — sometimes people of colour when that was still a novelty — and threw the most banging and diverse dinner parties. Then they were suddenly, inexplicably, forced to return to their countries of origin, leaving their families and spirits broken and our economy and society the poorer for their absence.

It is sobering to consider that 30 years into our once-celebrated democracy a minuscule 0.2% of the 62-million people living here have achieved citizenship by naturalisation.

Now, the department of home affairs is attempting to turn its white paper on immigration, citizenship and refugee protection into a meanspirited new law regulating who belongs here and who supposedly does not.

It is being taken to task for this by the likes of Lawyers for Human Rights (LHR), founded 45 years ago to try to mitigate the abuses of the apartheid regime, which argues that the white paper is so deeply problematic that it should be scrapped in its entirety.

Lawyers tend to prefer nitpicking over clauses in an attempt to clarify and improve them, so that’s a pretty drastic suggestion. But the problems start, LHR argues in its submission to the department, with an exceptionally limited time for public comment, aggravated by the document’s “lack of readability”.

“The white paper does not read coherently, nor does it provide credible assertions for the statements it makes or the statistics it provides. As a public policy document, this is unacceptable,” says LHR’s submission.

On the international stage, there is concern with the department’s stated intention to withdraw from the 1951 UN Convention and 1967 Protocol on the Status of Refugees (to which it acceded in 1996), as well as from the 1969 OAU convention on the same, “with a view to reaccede”, in LHR’s words, “with reservations and exceptions that seek to restrict the rights to healthcare, education and birth registration”.

At present pregnant migrant women are legally guaranteed pre- and postnatal care, and their children can be South African by birth. Though this is often thwarted in reality, it is now threatened entirely. The lawyers argue that withdrawal “poses significant risks for refugees and asylum seekers, including stateless refugees, and violates SA’s own constitution and other international human rights laws it is bound by”.

The hiatus period will create a climate of even greater vulnerability for migrants, already threatened by poorly trained, corrupt or violent officials who tend to see all irregular or undocumented migrants as “illegal”. But withdrawal will not extricate SA from a complex interlocking set of international obligations to prevent torture, or to care for unaccompanied migrant children, for instance.

In particular, the principle of non-refoulement, of not returning asylum seekers to the country in which they were persecuted, remains an inflexible obligation. But LHR claims the white paper seeks to dodge this responsibility by claiming that if the seeker passed through a country deemed “safe” by the department en route to SA, then they did not come from a place of imminent danger.

However, the lawyers argue, there is no generally agreed “first safe country” principle in international law — and even those countries that use it are obliged to protect all incoming refugees regardless.

“Broadly speaking,” LHR says, “the white paper proposes a number of measures that seek to narrow pathways to regularisation and access to documentation for asylum seekers and refugees. In addition, it seeks to withdraw the recognition of certain constitutional rights being afforded to migrants, including asylum seekers and refugees”.

It is worth stressing that many migrants are high-value contributors to society, like our former dinner-party hosts. In fact, a 2019 Helen Suzman Foundation breakdown of an Organisation for Economic Co-operation& Development International Labour Organisation report showed that, on average, immigrants have a higher level of education than locals who don’t move between provinces seeking opportunities. They thus tend to to be self-employed and provide employment to citizens. Also, “high-skilled foreign-born workers raise GDP by 2.8% … and increase GDP per capita by 2.2%,” the study reads.

The foundation noted there was “no significant impact of the presence of immigrant workers on SA-born employment at the national level, ” and that “the presence of ‘new’ immigrants, who have been in SA for less than 10 years, increases both the employment rate and the incomes of local workers.” This is in part because most migrants are non-unionised and do the dirty work South Africans are loath to do; they seldom “take our jobs”, but rather push us into better-waged work.

Unfortunately, the critical question of SA’s human rights obligations to refugees and asylum seekers is being muddied by opportunistic and shallow scaremongering by political parties in the run-up to the national election, now scheduled for May 29. In the 2017 Human Sciences Research Council’s Social Attitudes Survey, 71% of the SA public identified the “threat” posed by immigrants as the main explanation for xenophobic violence.

A common error repeated in the media is the claim that SA has 15-million irregular migrants among our 62-million population, but Stats SA demographics chief Diego Iturralde says in fact there were only 3.96-million foreigners — covering all legal statuses — living in SA by 2022, up from the 2.2-million tallied by Census 2011.

Wits University-based fact-checking outfit Africa Check has stressed that the cited 15-million includes all people who do not have proper identity documents — overwhelmingly these are South Africans, who, for reasons of poverty, remoteness or bureaucratic ineptness, do not possess a birth certificate or ID. But LHR warns that this number includes an extremely vulnerable group — more than 10,000 stateless people, among whom there is a large number of children.

Unfortunately, there is no proper process for dealing with statelessness, and SA deports 15,000-20,000 people every year, with the new Border Management Authority, launched in October 2023, stating that it prevented 44,000 people from entering the country in December 2023 alone.

Sitting in Modderbee Prison awaiting deportation as I write this is Pathy Zandu Tata, a charming 41-year-old Congolese draughtsman and illustrator. The authorities shouldn’t have detained him, as this has separated him from his beloved five-year-old daughter, which goes against a recent Constitutional Court ruling.

How did he earn a living here, you might ask? He worked as an electrician.