FORUMS
Forum on the new EU Pact on Migration and Asylum in light of the UN GCR
Contribution by Fatima Khan, Associate Professor & Nandi Rayner, Researcher, Refugee Rights Unit, University of Cape Town
2 October 2020
Introduction[1]
Similarly to the European Union (EU), South Africa is on the verge of forming a new deal on migration through its recently adopted White Paper on International Migration.[2] Firmly re-positioning its asylum governance system by focussing on the security risks of migration through strengthening border controls and restricting access to the country. South Africa is thus discounting potential risks associated with the blurring of international protection and migration management. The parallel policies between South Africa and those proposed in the new EU Pact on Migration and Asylum, can provided practical and legal knowledge into the effects of such policies in the EU.
- The persistent narrative of “bogus” asylum claims
South Africa’s policy context has largely been informed by a narrative that the asylum system is abused -and collapsing -from illegitimate claimants with falsified protection needs who are merely seeking to regularise their stay. Crush and Chikanda note that “the South African government has shown great interest in the notion of ‘mixed migration’ for it perfectly buttresses its argument that the country’s refugee system is being abused by non-refugees”.
The EU pact, in the context of solidarity and response, creates the connection between the issues of mixed migration and the need for solidarity between member states to address the problems of irregular arrivals of migrants and asylum seekers. The pact also introduces fast-tracked asylum applications for applicants deemed to be misleading authorities when from “safe countries” and for persons who enter the country irregularly. With fast-tracked applications, it concurrently introduces “swift” returns. This is justified in the EU Pact to prevent unauthorised movements and a tool to discourage large amounts of asylum applicants from countries with low rates of refugee recognition. Although not as blatant as South Africa, the sentiment and connection has been made between migrants using the asylum system to regularise their stay, which has informed the EU pact as seen by the emphasis on the need to manage migration.
South Africa’s response to the overwhelmed system was the adoption of the above-mentioned White Paper and the recent adoption of the Refugees Amendment Act and the Border Management Act, both of which are overly procedural and severely hamper access to asylum.
None of these changes are in line with the human rights ethos of the UN Global Compact on Refugees and a stark shift from the progressive protection laws post-apartheid. The current focus on border management in the form of pre-screening practices, the establishment of asylum processing centres, as well as the prioritisation of an asylum transit visa have created new problems in asylum management.
There has been a growing consensus that restrictive and exclusionary policies and practices have contributed towards the creation of a mass population of hidden and undocumented refugees and asylum seekers in South Africa.
- Access denied – border management and pre-screening
Whether an asylum seeker enters South Africa, either through a port of entry or not, the instruments at play are the Refugees Act, Immigration Act, and more recently the Border Management Act (BMA) which creates the Border Enforcement Authority who have the power to detain persons for illegal entry. The BMA introduces a mandatory, accelerated border procedure that undermines fair and effective adjudication of international protection claims. The Border Enforcement Authority has wide discretion on whether to arrest and detain an illegal foreigner or deny entry without referring to the possibility of refugee protection.
It is unlikely that all refoulement risks could be properly assessed in such a procedure by the Border Enforcement Authority. Refugees ought to be protected by Section 2 of the Refugees Act which includes a general prohibition of refusal of entry, expulsion, extradition, or return to other countries, and it is extended to include not only persons who will face serious harm but anyone whose life will be at risk of harm.
Such accelerated border processes envisaged by the BMA are likely to violate the principle of non-refoulement and insofar as the BMA reduces access to a fair and efficient asylum procedure it should be rejected. Currently, Covid-19 has hampered the monitoring of border activities. The presentation of border procedures through the BMA as the answer to address all ailments of the current asylum system is deceptive; it will instead exacerbate many flaws in the implementation of the asylum system.
Like the accelerated procedures in South Africa, the EU Pact proposes the establishment of accelerated procedures at the border for non-EU citizens crossing without authorisation. This accelerated procedure consists of the determination of the applicable migration avenue, the acceleration of status determinations of asylum seekers, and where necessary, swift return. Although the pact reaffirms the guarantee to effective asylum procedures, refugees’ risk being incorrectly referred to migration channels, not referred at all, and where referred, face accelerated claims. In each case, the asylum seeker risks swift return and thus a greater risk of refoulement. Furthermore, accelerated procedures lack procedural safeguards and hamper access to the asylum system.
- “Out of sight, out of mind?”: Processing centres
The most drastic re-positioning of the asylum system in South Africa has been the call to introduce asylum-seeking processing centres on the northern borders, where asylum seekers will remain while having their claims adjudicated. From a government perspective, asylum seekers will be out of the metropolitan areas and unable to steal the jobs of South Africans. However, from a rule of law perspective, it will create insurmountable legal and practical problems.
Wherever that ‘processing’ takes place, so does the obligation to comply with the rule of law and fundamental human rights of people seeking international protection. These processing centres could easily result in the creation of refugee ‘camps’ as it currently takes South Africa between 5 and 15 years to adjudicate asylum claims. A far more worrisome fact is the current backlog with the appeals authority estimated to take more than 60 years to clear.
The South African government’s belief is that these processing centres will be a more efficient asylum system than is currently in place is unrealistic. On the contrary, it will create new problems such as large numbers of persons stuck in these centres for many years without the right to work or freedom of movement, placing their life on hold and rendering them powerless.
Although the EU already processes claims at the border, they similarly believe, that more must be done to manage the external borders in regard to the processing of applications for asylum to prevent irregular entry and movement in the country. The EU Pact indicates a belief that this will create a more efficient asylum system.
In South Africa, not only are the obstacles to the rule of law evident but asylum seekers are unable to support themselves will become entirely dependent on others for their survival. The responsibility of taking care of these persons will fall squarely on the South African government, creating an additional burden on the state.
The establishment of such processing centres will also unnecessarily create practical challenges for asylum adjudication. The ability to have enough refugee reception officers, refugee status determination officers, and independent appeal and review bodies on-site to adjudicate claims will be challenging to say the least. The areas earmarked for these processing centres are in vast swathes of unpopulated land, far from any major city. Furthermore, there are no High Courts or legal assistance personnel near these centres.
This type of “out of sight” processing envisaged will instead create problems. If it fails to function optimally it will be easily identifiable by the international community as centres (“black spots”) that have failed those seeking international protection. South Africa is therefore strongly urged by South African and international human rights NGO’s as well as the UNHCR to abort the asylum processing centres plan.
- Asylum Transit Visas
The Refugees Amendment Act creates an exclusion for an asylum seeker who is not in possession of an asylum transit visa on an application for asylum and is unable to show just cause for not being in possession of the visa. The asylum transit visa is issued in terms of the Immigration Act when an asylum seeker states their intention to apply for asylum at a designated port of entry and gives them five days to report to a Refugee Reception Office. Asylum seekers who do not enter through a port of entry are unable to obtain this visa. The exclusion thus seeks to penalise illegal entry despite the right to non -penalisation in refugee law.
The EU Pact, with its introduction of accelerated procedures for asylum and deportation for persons who enter without authorisation, is analogous to South Africa’s procedures to penalise illegal entry of asylum seekers and prioritise exclusion in these circumstances. It further links the asylum management and migration authorities for a more efficient system. Although the exact nature of the procedure, enabling law or policy may differ between the EU Pact and South Africa the effect of the policies is inherently similar and has the potential to create similar issues.
The Constitutional Court in South Africa in Ruta v the Minister of Home Affairs, already ruled on the issue of the interaction between the Refugees Act and the Immigration Act holding that the Refugees Act and the principle of non-refoulement apply to de facto and de jure refugees and thus all asylum seekers are protected by the principle of non-refoulement. Furthermore, it also ruled that such protection applies as long as the claim to refugee status has not been finally rejected after the proper procedure in terms of the Refugees Act. Asylum seekers who do not enter through official ports of entry are not explicitly covered by either statute, though the Refugees Act covers them implicitly by the fundamental principle of non-refoulement. Thus, the Refugees Act is held to prevail over the Immigration Act in the case of asylum seekers who have not yet had their claim adjudicated.
The amendment goes against and attempts to circumvent the essence of Ruta by tying the criminal act of illegal entry in terms of the Immigration Act to the Refugees Act and piercing the “shield of non-refoulement” which may only be lifted after a proper determination has been completed. The exclusion based on not having an asylum transit visa has the effect of prioritizing the management of migration over protection needs and is incongruent with human rights law in South Africa as it prioritises exclusion over inclusion.
- Creating humanitarian corridors
A positive aspect of the White Paper is that it encourages South Africa to consider humanitarian assistance through special dispensation projects. Currently, South Africa has the Zimbabwean Dispensation Program, the Lesotho Dispensation Program, and is considering extending a dispensation to Malawians.
There are no specific laws which allow for a person to legally migrate to South Africa for work unless they can assert a scarce or critical skill. Many low-skilled migrants from neighbouring countries enter South Africa with the sole purpose of working; thus, the creation of country-specific special dispensations to deal with economic migrants was a step in the right direction. When South Africa created the special dispensation for Zimbabweans it provided much-needed humanitarian assistance. At the time, Zimbabwe was experiencing both political and economic instability and many Zimbabweans who came to seek asylum in South Africa felt compelled to transfer on to the Zimbabwean Dispensation Program as the permits issued were valid for four years as opposed to the asylum seeker permit that was valid for only three to six months at a time. Asylum seekers that remained on their permits remained entitled to the full protection afforded by the Refugees Act.
The creation of this humanitarian corridor to protection was necessary but it is recommended that it should not be used to relabel refugees with ordinary migrants’ status. This cautionary statement is further applicable to the EU pact, which places a strong emphasis on the development of legal pathways to Europe and thus should include precautions to prevent the relabelling of refugees in other migration categories.
- Key to making asylum work
The comparable policies between South Africa and those proposed in the EU Pact allow the EU to gain practical and legal knowledge into the effects of such policies. Consequently, the suggested key to making asylum work in South Africa can provide insight into improving the asylum system in the EU.
The key to making asylum work in South Africa is to increase compliance with existing asylum law and management, rather than introducing asylum processing centres which are strongly opposed by civil society and the UNHCR. Prominent implementation gaps that need to be addressed immediately include: inadequate reception provisions; barriers to registration; and lack of special procedural guarantees resulting from poor and inconsistent decision-making. The UN Global Compact on Refugees, in its operationalisation by the government, should call on the assistance of stakeholders, including the EU, to assist and fix the system already in place. In December 2019 at the Global Refugee Forum in Geneva, South Africa pledged to step up the documentation of refugees in South Africa.
It is apparent from the above that the border screenings, asylum processing centres, and the exclusionary nature of the asylum transit visa is not entirely in line with the rule of law and will likely face serious legal challenges. It is therefore an inadequate solution to the asylum problem in South Africa. In South African law, strong precedents have declared unconstitutional anti-protectionist policies such as pre-screening -whether at the border or the refugee reception offices. The reasoning of these judgements has not only relied on the South African Bill of Rights (modelled similarly to the International Covenant on Economic, Social, and Cultural Rights) but has also been enriched by judgements from international law and various judgements of the European Union.
This re-positioning of asylum management is a threat to the rights of refugees and asylum seekers. Much of the work done by civil society and the judiciary in protecting the rights of refugees and asylum seekers has been undone by the most recent amendments and regulations. Unlike the human rights ethos that was overwhelmingly the approach post-apartheid, the new amendments and regulations appear to be informed by the widespread xenophobia in the country and the need to secure borders and contain refugees. These inconsistencies in addition to broad discretion given to home affairs officials and restrictive regulations call into question the lawfulness of the amendments considering the South African democratic system and international law. South Africa has moved from an open policy of free movement to that of containment. Whether it will be able to withstand the progressive approach of the Constitution will once again be tested through our courts.
[1] South Africa hosts the third-largest asylum and refugee population in southern Africa after the Democratic Republic of Congo and the United Republic of Tanzania. The Department of Home Affairs records 186 210 documented asylum seekers and 88 694 documented refugees. Most documented asylum seekers are from Bangladesh, DRC, Ethiopia, Pakistan, and Zimbabwe whereas documented refugees are from Burundi, DRC, Ethiopia, Somalia, and Zimbabwe
[2] South Africa is a party to the 1951 UN Refugee Convention Relating to the Status of Refugees (“1951 Refugee Convention”) and the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (“1969 OAU Refugee Convention”), both are ratified, with no reservations. These Conventions have been domesticated in terms of the Refugees Act 130 of 1998.
