A coun­try dis­in­ter­ested in pro­tect­ing peo­ple who flee per­se­cu­tion


“South Africa had a low refugee recog­ni­tion rate be­fore the changes came into force

THE South African Refugee Amend­ment Act and Refugee Reg­u­la­tions make it harder for asy­lum seek­ers to get into the coun­try. New pro­vi­sions also make it harder for them to stay.

Crit­ics high­light the De­part­ment of Home Af­fairs’ in­creas­ingly Or­wellian bu­reau­cratic pro­ce­dures – which up mon­i­tor­ing of for­eign na­tion­als, the se­cu­ri­ti­za­tion of the De­part­ment, and the coun­try’s au­thor­i­tar­i­an­ism. I add the im­pacts leg­isla­tive changes may have on asy­lum seek­ers and refugees, youths and those who iden­tify as les­bian, gay, bi­sex­ual, queer, transgende­r, or in­ter­sex (LGBTI).

The South African Refugee Act was passed in 1998. The draft Amend­ment Act was com­pleted in 2017 and came into force, along with the Refugee Reg­u­la­tions, on Jan­uary 1, 2020.

The 2020 changes make it harder to get asy­lum sta­tus in South Africa. Pre­vi­ously, ap­pli­cants had 14 days af­ter ar­riv­ing in the Repub­lic to ap­ply for asy­lum. Due to poverty and the lo­gis­tics of travel, few ap­pli­cants could com­ply with that re­quire­ment. Ap­pli­cants are now ex­cluded from ap­ply­ing al­to­gether if they fail to do so within five days of ar­rival. The pro­vi­sions ap­ply retroac­tively; asy­lum ap­pli­cants are sub­ject to laws that were not in place at the time they ar­rived. Those who fail or failed to ap­ply for asy­lum within five days of en­ter­ing South Africa are ex­cluded from the asy­lum ap­pli­ca­tion process.

South Africa also made it eas­ier to re­voke asy­lum-seeker and refugee sta­tuses. They now re­voke sta­tus from in­di­vid­u­als who seek doc­u­ments from their coun­tries of ori­gin’s diplo­matic mis­sions. This pro­vi­sion con­tra­dicts other asy­lum pro­vi­sions. Birth, mar­riage, and death cer­tifi­cates are nec­es­sary to progress through the ap­pli­ca­tion process. If asy­lum seek­ers re­trieve a birth cer­tifi­cate, they lose their sta­tus. At an­other phase of the process, if asy­lum seek­ers do not have a birth cer­tifi­cate, they lose their sta­tus.

Home Af­fairs Min­is­ter Dr Aaron Mot­soaledi does not know how many un­doc­u­mented peo­ple live in the coun­try. (The num­bers are likely in the hun­dreds of thou­sands; for­eign na­tion­als are less than 3% of the peo­ple re­sid­ing in South Africa.) At the same time, the de­part­ment is in­creas­ing the con­di­tions that pro­duce a lack of doc­u­men­ta­tion. These pro­vi­sions will be ex­pen­sive to en­force, and will make life more dif­fi­cult for those who seek refuge here.

Gov­ern­ment hos­pi­tals and schools are of­ten in­ac­ces­si­ble to those with­out doc­u­men­ta­tion. Un­doc­u­mented peo­ple have dif­fi­culty se­cur­ing em­ploy­ment, or are ex­ploited by em­ploy­ers.

The De­part­ment’s re­vo­ca­tion has par­tic­u­lar im­port for LGBTI and youth asy­lum seek­ers. Ad­vo­cates at PASSOP ex­plain that un­like refugees from war zones like So­ma­lia, LGBTI asy­lum seek­ers of­ten travel alone. They have lim­ited so­cial net­works through which to se­cure hous­ing, psy­choso­cial sup­port and em­ploy­ment. This leads some LGBTI refugees into sex work, which in­creases their vul­ner­a­bil­ity to HIV. And again, with­out doc­u­men­ta­tion these peo­ple are of­ten pre­cluded from ap­pro­pri­ate med­i­cal treat­ment.

Re­vok­ing sta­tus from asy­lum seek­ers will also cre­ate bar­ri­ers to pri­mary and se­condary ed­u­ca­tion for for­eign na­tional chil­dren. More­over, Home Af­fairs can now de­ter­mine the con­di­tions un­der and sec­tors within which asy­lum seek­ers and refugees can study.

A gen­er­a­tion of for­eign na­tion­als in South Africa will have ed­u­ca­tional tra­jec­to­ries not de­ter­mined by their in­ter­ests or ca­pac­i­ties, but by the will of state of­fi­cials.

South Africa had a low refugee recog­ni­tion rate be­fore the changes came into force. In 2015, the global refugee recog­ni­tion rate was 37%. In 2019, South Africa’s refugee recog­ni­tion rate was 4%. Home Af­fairs has said its new laws pro­tect the asy­lum sys­tem against abuse and at­tend to weak­nesses in the orig­i­nal leg­is­la­tion. Given the low refugee recog­ni­tion rate, as well as these new pro­vi­sions– the de­part­ment’s ex­pla­na­tions feel sus­pect.

For asy­lum seek­ers and refugees, South Africa is now harder to get into and harder to stay in. Its new refugee regime makes a clear state­ment: the coun­try is dis­in­ter­ested in pro­tect­ing peo­ple who flee per­se­cu­tion and war.

Gleckman-Krut is a so­ci­ol­ogy PhD can­di­date at the Univer­sity of Michi­gan, US. She stud­ies sex­ual vi­o­lence and asy­lum law, with a fo­cus on the US and South Africa.

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