Home Affairs must clarify
Lockdown intensifies asylum seekers’ plight, in particular the renewal of their visas
IT HAS been accepted by the Constitutional Court that asylum seekers are unquestionably a vulnerable group in society whose plight calls for compassion.
They are generally victims of circumstance as they have little to no control over the conditions that cause them to flee their home countries. Added to these experiences is the further strain associated with displacement to a foreign country.
Many arrive in South Africa with the hope of a better future only to face insurmountable hurdles such as unemployment, poverty, xenophobia and massive backlogs in the asylum process. This results in many being in the country for several years only to be ultimately denied refugee status.
This is the unfortunate reality faced by many asylum seekers in the ordinary course without the added concerns that arise when a state of disaster is declared – as was recently done.
South Africa was placed in a nationwide lockdown for 21 days due to the Covid-19 pandemic, later extended by two weeks.
As asylum seeker visas are a source of protection and livelihood for many, it poses the question of how the lockdown will affect asylum seekers in South Africa, in particular, the renewal of their visas.
Section 27 of the Disaster Management Act permits the designated minister to make regulations or issue directions or authorise the issue of directions, provided the regulations are made only to the extent necessary for the purpose of assisting and protecting the public, providing relief to the public, protecting property, preventing or combating disruption, or dealing with the destructive and other effects of the disaster.
In Regulations issued on March 18 (Government Gazette 43107, Notice 318), Regulation 10 confirms that any minister may issue and vary directions, as required, within his or her mandate to address, prevent and combat the spread of Covid-19 from time to time as may be required.
Despite all ministers being empowered to issue directions within their mandate, the Department of Home Affairs (DHA) chose to circulate an “announcement” on March 26, confirming no Refugee Reception Centres will be assisting any clients during the lockdown for (then) 21 days, with effect from March 27 to April 16.
The announcement goes on to provide that those whose visas expired during the period of March 16 to April 16 would not be penalised or arrested, provided they legalise their visas within 30 calendar days of the lockdown being lifted.
However, clients confirmed many of the Refugee Reception Centres were closed to the public even before the lockdown (as of March 16), citing Covid-19 safety concerns for the closure.
Despite directions being issued by the home affairs minister regarding temporary measures in respect of entry into or exit out of the Republic in order to combat the spread of Covid-19, at the date of publication of this alert, no such directions were issued in respect of the issuing or renewal of asylum seeker visas.
Services provided by Refugee Reception Centres were also not listed as essential services, unlike the issuing of birth and death certificates, and replacement identity documents.
The indeterminate legal status of the “announcement” could pose a number of problems for asylum seekers should they be stopped by members of the SAPS or the SANDF. Many would be in possession of expired visas and therefore run the risk of being arrested and detained.
The detention of any individual, including asylum seekers, would be highly undesirable and even counter-productive to the government’s fight against Covid-19, as detained individuals would be at higher risk of contracting and spreading the virus in overcrowded detention centres and police stations.
The recent Refugees Amendment Act creates further challenges as it includes an abandonment provision which provides for the deemed abandonment of asylum applications should the individual fail to renew their asylum seeker visa within one month after the expiry of same unless they are able to provide compelling reasons for their failure to renew their visa.
Given that the Refugee Reception Centres will have a backlog once the lockdown is lifted, there is a real concern that many asylum seekers will battle to renew their visas within the prescribed time and thus run the risk of their applications being deemed to have been abandoned.
Civil society organisations have raised concerns in respect of this provision in the Act and suggested a period of 12 months before an application is deemed to be abandoned.
There has also been a call by a number of civil society organisations for the DHA to extend all asylum seeker visas for a period of six months (once the lockdown is lifted) to avoid asylum seekers having to return to Refugee Reception Centres more regularly – this in order to curb the risk of the spread of Covid-19.
Last week South Africa’s lockdown was extended by two weeks, until April 30. Under these circumstances there is a need for the DHA to provide clarity in respect of the extension and validity of asylum seeker visas.
Tricia Erasmus is senior associate and Jacquie Cassette director and national practice head of the Pro Bono and Human Rights practice at Cliffe Dekker Hofmeyr.