Cape Times

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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