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.