Courts ‘draining’ resources
There are more refugees and asylum seekers in the world today than there were at the end of World War II. This major crisis came under the spotlight at last week’s UN High Commissioner for Refugees conference in Geneva. South Africa was represented by Pro
SOUTH AFRICA’S obligations include the duty to share the responsibility of hosting refugees fleeing persecution and insecurity. From 2006 to 2015 South Africa received approximately 1.08 million asylum seekers compared with 3.7 million for the 28-member EU, an average of 132 000 persons for each European country for that period.
Without doubt, South Africa carries a fair share of the burden of displaced persons. Since 2010, we have afforded work and study permits through sequential special permit regimes to no fewer than 280 000 Zimbabweans seeking jobs in South Africa in the wake of that country’s economic crisis.
International law does not require refugees to seek asylum in any particular country. There is, however, the principle of “first country of asylum” which directs countries to welcome refugees fleeing from persecution in a neighbouring state. This principle has developed so that, in practice, an asylum seeker who had the opportunity to claim asylum in another country is liable to be returned to the neighbouring country to have his or her claim determined there.
The UK unsuccessfully tried to invoke this principle during the exodus of Syrian refugees, returning them to first safe countries like Greece while shutting their borders to the newcomers, who resorted to camping in the French city of Calais.
Despite resource and capacity challenges related to managing migration, South Africa has not closed its ports of entry to asylum seekers. Consequently, much of our resources have been diverted to dealing with challenges arising from so called “mixed migration”. This refers to migration motivated by a variety of reasons including insecurity, persecution and better economic prospects.
It also includes irregular (or illegal) migration, as well as the heinous practice of trafficking. Irregular migration is not benign to a mixed economy such as ours and already the strain on the Health Department’s resources is becoming evident in Gauteng, where most undocumented migrants are concentrated.
South Africa’s post-apartheid human rights orientation does not sit comfortably with the notion that poor people merely looking for a better life should be dealt with as criminals who stand to be arrested and deported. Instinctively, South Africans understand and can relate to the plight of poverty and the human desire for new pastures.
However, our constitution itself is a law, and an essential principle of any constitutional state is respect for the law. Our Bill of Rights reserves the right to enter and reside in the country only to citizens. Everyone else is required to enter the country in accordance with immigration laws. If you enter illegally, you should surely not have an automatic right to remain and have equal access to state resources. As a country we must strike a balance between our humanitarian values and our responsibility to ensure safety and security for all citizens, as well as those migrants and refugees who take the trouble to comply with our laws.
This emphasis is increasingly being overlooked in subsequent court-made policy decisions. Notwithstanding the fact that a correct application of the Bill of Rights would leave no room for contradiction of its provisions, the state is increasingly being directed by the courts to afford rights to persons who have entered and remain in the country illegally.
In this regard, it has previously been understood that the separation of powers doctrine retains the executive’s remit in relation to the deployment of state resources.
Increasingly, the executive is made to give effect to court-made policy. This has serious implications for the deployment of scarce resources and entails the reprioritisation of budgets determined by the cabinet. In some instances, these court determinations result in the direct displacement of government policy determined through democratic processes and commitments to the electorate.
Placing the refugee reception centres at the land borders in the north, is one such policy. The UNHCR Report on Protection, delivered in Geneva on October 5, states among others:
“UNHCR recognises the legitimate security concerns of states in managing their borders. Protecting refugees and ensuring security are compatible and even complementary goals. Protecting sensitive border management systems and effective screening and referral mechanisms allow for those persons in mixed flows who need international protection to be detected and referred to the appropriate services, while simultaneously advancing national security.
“The orderly processing of asylum claims, either in an individualised procedure or through group procedures, enables states to be confident about who is on their territory and, at the same time safeguards the rights of refugees and asylum seekers. This includes prompt registration of new arrivals and appropriate status determination mechanisms.”
Similar considerations prompted the governing party’s policy conferences since 2012 to affirm the government’s intention to relocate the refugee reception centres to our northernmost land borders.
Our statistics, and strategic analysis indicate that a new refugee centre at the border with Mozambique, together with the existing Musina Refugee Reception Centre will be able to process most newcomers upon their arrival at our borders.
Given the blatant corruption experienced in the Port Elizabeth Reception Refugee Centre in 2011, the director-general announced a closure of that reception centre to all newcomers. Likewise, a later decision was taken to close the Cape Town Refugee Reception Centre to new asylum seekers. Resident refugees in both those cities would continue to be serviced by those centres operating leaner bureaucracies. It was intended to deploy the residual resources from the scaled-down operations towards the new borderline reception centre.
Due to subsequent court challenges by NGOs based in in Port Elizabeth and Cape Town, our courts have ordered the Department of Home Affairs to reopen both those reception centres to first-time applicants.
Meanwhile, the department’s resources have come under significant strain due to budget cuts.
This effectively means that any further resources acquired by the department in the future will have to be prioritised towards the reopening of these two centres, in cities situated far from where most new arrivals enter the country.
This deals a blow to the protection of vulnerable asylum seekers who arrive at our borders and constrains the state’s attempts to contain illegal movement through the hinterland of the country, undermining our collective security.
This state of affairs benefits neither our humanitarian values nor our aspiration for greater safety.
The state is being directed by the courts to afford rights to illegal immigrants