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V. Obstacles in the Refugee Status Determination Process

Overview of the process

The refugee status determination process outlined in the Refugees Act sets out a detailed system for individuals seeking asylum in South Africa. Under the regulations to the Refugees Act, asylum seekers must present themselves in person at a refugee reception office “without delay.” Also, the regulation 2(2) provides that when a person indicates his or her intention to seek asylum upon entry into South Africa, officials will issue him or her a temporary permit valid for fourteen days. During this period, the person should approach the nearest refugee reception office where a refugee reception officer will conduct an initial eligibility interview, in practice, to establish identity and the general reason for applying. The officer will issue a temporary asylum seeker permit, which sets the date for a full refugee status determination hearing (this is a non-adversarial process). There, a refugee status determination officer interviews the applicant and decides whether he or she should be granted refugee status. If refugee status is granted, DHA issues a permit, and subsequently, a refugee identity document. If the application is denied, the asylum seeker may appeal to the Refugee Appeals Board.

Overall, the refugee status determination system in the Refugees Act and regulations is a marked improvement over the ad hoc process used during the era of the Aliens Control Act. However, the day-to-day implementation of the system in Johannesburg—and thus the ability of refugees and asylum seekers to fully access and benefit from it—remains problematic.

The obstacles in the system in Johannesburg are apparent from the first moment the asylum seeker tries to enter the refugee reception office to the moment—often years later—when he or she receives a decision on refugee status. For example, given the difficulty asylum seekers have in gaining access to the Johannesburg refugee reception office, the fourteen-day permit issued at initial points of entry does not provide enough time for most asylum seekers to obtain asylum seeker permits under Section 22 of the Refugees Act. This is the first of several ‘documentation gaps,’ which can leave asylum seekers in situations of insecurity and jeopardy

Lack of clear, easily available rules regarding the asylum process and the operation of the Johannesburg office and the lack of official interpreters complicate the process and contribute to the pervasiveness of corrupt practices in and around the office.

Insufficient staff and inadequate equipment, such as functioning computers, are major causes for long delays in the asylum procedures. This situation is made worse because of inconsistent DHA decisions regarding work authorization. Many asylum seekers unable to support themselves are left destitute. There has also been insufficient public education regarding the asylum seekers’ right to work and study.

Once a formal refugee status hearing does take place, refugees benefit from a broad refugee definition outlined in South African law. However, when refugees are recognized and granted status, the issuance of refugee documentation is not automatic, which hampers the individual’s full access to his or her rights.

Lastly, some recognized refugees are denied “indefinite” refugee status and instead are required to resubmit their claims every two years to renew their permits—a practice which ignores UNHCR expert guidance on the importance of the Refugee Convention’s cessation clauses as the sole grounds for withdrawing Convention refugee protection from an individual.

The next sections set out in more detail some of the key obstacles in the refugee status determination process in Johannesburg.

Applying for asylum

The fourteen-day permit to report to a refugee reception office

An immigration officer at a border crossing must issue an asylum seeker entering South Africa a temporary document, valid for fourteen days, requiring the person to apply for asylum at the nearest refugee reception office.²⁷ At present there are five reception offices in the country, located in Johannesburg, Pretoria, Cape Town, Durban, and Port Elizabeth¾with Johannesburg being the busiest with the largest number of applications.

The issuing of the fourteen-day permit is meant to give an asylum seeker adequate time to reach the nearest refugee reception office and to apply for asylum without risk of arrest for being “illegal” (that is, present on the territory without authorization). An assumption exists that the asylum seeker will find the refugee reception office within the prescribed two-week period, be able to present him/herself before a refugee reception officer, and be issued with a permit.

However, as Human Rights Watch found, and as confirmed by NGOs working with refugees and asylum seekers, the fourteen-day document often expires long before many asylum seekers have been issued with an asylum seeker permit. In Johannesburg, this is due largely to the difficulties asylum seekers have in gaining access to the refugee reception office.²⁸

The Immigration Amendment Act 19 of 2004, which came into force on July 1, 2005, provides that a person automatically becomes an “illegal foreigner” (and therefore subject to detention and deportation) if this temporary document expires before the bearer is able to appear before a refugee reception officer.²⁹

Inability to gain access to the refugee reception office

The regulations to the Refugees Act state that an application for asylum must be lodged “without delay” at a designated refugee reception office.³⁰

Through visits to the Johannesburg reception office and interviews with asylum seekers and NGOs working on their behalf, Human Rights Watch found that factors preventing access to the office include gaining physical access to the refugee reception office; lack of information about the location of the office; how the office and asylum process functions; the need for most newly arrived asylum seekers to wait in long lines— sometimes overnight—in the hope that they might be admitted the next day; and the constantly changing system of admitting new arrivals seeking asylum.

An asylum seeker from Zimbabwe told Human Rights Watch about his experience in trying to gain access to the Johannesburg refugee reception office:

I went to Home Affairs one Monday evening in order to be in the front of the queue the following morning. The Tuesday—the day they admit Zimbabweans—they told me that they can only admit thirty applicants from Zimbabwe. I got into the office at 1100 when I received assistance.  The refugee reception officer interviewed me. He took down basic information from me [the eligibility form]. He did not issue me with a paper as the printer was not working. I was told to return the following day.³¹

An October 2004 report by the Office of the Public Protector in South Africa found that DHA “has acted in an unlawful and improper manner in denying refugees access to the building and services rendered at the Braamfontein Refugee Reception Office (now Rosettenville premises)” and that “refugees have been improperly denied the right of access to the asylum system and procedures.”³²

The Johannesburg refugee reception office moved locations three times in a period of six months between 2003 and early 2004 before settling at its now permanent address in Rosettenville, south of Johannesburg’s central business district. During this period there were no notices indicating where the office had moved. This created confusion and, potentially, the risk of arrest, detention, and deportation for those who were due to renew their permits but found the former offices shut.

The absence of available information at the office on either the asylum process or on the rights of asylum seekers in general further opens the process to potential corrupt practices by unscrupulous actors within and outside the system.³³ One refugee told Human Rights Watch, “Look for a friend, give him money, and he will know what to do.”³⁴   

To address the problems asylum seekers experienced in gaining access to the reception center, during 2004, some asylum seekers were being issued with appointment letters when the refugee reception officers were unable to process their applications. These letters, which indicate that the asylum seeker has presented him or herself to the refugee reception office, however, are not provided for under the Refugees Act or accompanying regulations and have no legal standing. Without a legal document, the asylum seeker has no certain protection from potential arrest. Also, the bearer of such a letter is unable to obtain certain social services. A Congolese asylum seeker, who arrived in Johannesburg in December 2003, showed Human Rights Watch an appointment letter issued to him, and explained:

I went to Home Affairs and was given this paper. They said I should return for the Section 22 paper. For a long time the computers were not working. The computers started working from April 2004. I still did not get the permit.³⁵

He renewed the paper each time he went to the Johannesburg refugee reception office from December 2003 to July 2004.

The University of the Witwatersrand (Wits) Law Clinic reported in November 2004 that one of its client’s appointment letters had been renewed repeatedly for a year and a half, contravening section 22 of the Refugees Act, which states that asylum applicants should be issued with asylum seeker permits.³⁶

In addition, between November 2004 and March 2005, the Johannesburg refugee reception office introduced a system of accepting new asylum applications on specific “intake days.” According to an official at the office, there were two intake days each in November and December 2004 and one each in January and February 2005. On the intake day of February 4, 2005, approximately 2,000 asylum seekers presented themselves at the office.³⁷ The DHA official told Human Rights Watch that the next intake day was scheduled in April 2005. Refugee reception officers issue all new asylum seekers presenting themselves on intake days with “tokens” requiring them to come back to the office for their eligibility interview at a later date.³⁸ This intake system was suspended following a DHA review.³⁹

In the last week of April 2005, the Johannesburg refugee reception office began to direct all new applicants to the Pretoria refugee reception office owing to health and safety concerns raised by the local municipal authority.⁴⁰ In the meantime, the Johannesburg refugee reception is continuing with its other tasks, such as renewing asylum seeker permits. DHA has established a task force to look for an alternative suitable location for the Johannesburg refugee reception office.⁴¹ As of September 2005, the Johannesburg refugee office was not admitting new arrivals and DHA had not found a new location.  

Neither the “tokens” nor appointment letters are legally recognized documents and therefore do not give the asylum seeker legal status in the country. These measures are not in keeping with UNHCR Executive Committee (ExCom)⁴² Conclusion No. 35 (1984) recommended that if an asylum claim cannot be decided “without delay,” the asylum seeker should be issued with temporary documents to ensure his or her legal protection.⁴³ 

Neither the tokens nor appointment letters are provisional documents sufficient to ensure that the bearer will not risk detention. Asylum seeker permits, as provided under the Refugees Act and regulations, are the only legal documents that afford some legal protection by allowing the bearer to stay in South Africa. 

In responding to concerns about access to the Johannesburg refugee office, DHA told Human Rights Watch that it would institute a uniform system on June 30, 2005 across all refugee reception offices in South Africa. Under the new system, reception and interview of asylum seekers should be completed within four or five working days.⁴⁴ In addition, DHA said it would recruit fifty permanent staff members across all the five refugee reception offices. However, as of October 2005, the Johannesburg refugee office had not opened its offices to new arrivals thereby implementing the new system. 

Corrupt practices

Corruption in the refugee reception office and the failure by officials to restrict the activities of “brokers” and unofficial “interpreters” further hinder the ability of asylum seekers to gain access to refugee status determination procedures and protection. As an asylum seeker told Human Rights Watch, “Without [bribe] money, I cannot get a paper [asylum seeker permit].”⁴⁵ He claims to have paid R400 (U.S. $67) to a person not in uniform at the Johannesburg refugee reception office in order to gain access to the office. Another asylum seeker from the DRC told Human Rights Watch that someone not in uniform at the Johannesburg refugee reception office told him, “If you want a paper, you must pay R 400 (U.S. $67).”⁴⁶ When Human Rights Watch asked about allegations of corruption at the Johannesbur g refugee reception office, the head of the office would not confirm or deny the allegations.⁴⁷ 

Corruption is notoriously difficult to prove, for a variety of reasons.⁴⁸ Asylum seeker victims of corruption may be reluctant to come forward with their complaints since they are dependent on the very people they may be accusing to grant them legal status to remain in the country. Moreover, until late 2004, officials at the Johannesburg office did not wear nametags, adding to the difficulties for asylum seekers in lodging formal complaints against them. Regardless, however, most asylum seekers and service providers interviewed by Human Rights Watch as well as various reports by the National Consortium for Refugee Affairs, the Human Rights Committee (a South Africa-based NGO)⁴⁹, and the Public Protector, an independent statutory body,⁵⁰ contend that corruption within DHA as a whole is a problem (see examples below).

First interview

The Refugees Act establishes a procedure for refugee reception officers to receive asylum applications presented to them and submit them to a refugee status determination officer. The asylum seeker should be given “notice in writing to appear before a status determination officer for an interview… not later than thirty working days after the initial lodging of the application.”⁵¹ Additionally, UNHCR’s ExCom has stressed that states should ensure that individual asylum seekers are “registered and…issued appropriate documentation reflecting their status as asylum seekers, which should remain valid until the final decision is taken on the asylum application.”⁵²

The refugee reception officer conducts an initial interview to gather the applicant’s personal information and reason for seeking asylum and then issues the applicant an asylum seeker permit commonly referred to as a Section 22 permit. It is valid for one month, subject to renewal.⁵³

At each renewal, the asylum seeker must return to the refugee reception office. With each visit, asylum seekers may be exposed to corrupt practices. The Forced Migration Studies Programme of the University of the Witwatersrand (Wits) found that every one of the more than fifty applicants interviewed at the refugee reception office in Johannesburg over a two-week period in December 2004 reported engaging in or being approached to participate in corrupt behavior.⁵⁴ The study found that each of the various services provided at the refugee reception office, such as acquiring an “interpreter,” receiving an asylum seeker permit, and having the permit renewed involved a potential demand for a bribe.⁵⁵ The costs of bribes found by the Wits researchers ranged from R 400 (U.S. $67) to R 4,000 (U.S. $667) for interpreters and from R 100 (U.S. $17) to R 800 (U.S. $133) for other “services”.⁵⁶ 

An asylum seeker from Ethiopia told Human Rights Watch:

I paid someone at Home Affairs R 400 (U.S. $67). They guess what to write on the form. Even my name is incorrect. The church said I need a paper to continue living there. They give me money and we give it to someone in plain clothes. I think this is a broker…Sometimes they charge R 600 (U.S. $92.31) for applicants from Ethiopia. If you do not pay, you cannot get a paper.⁵⁷ 

Human Rights Watch discovered that some asylum seekers had paid bribes to acquire a renewal of their asylum seeker permit or to be granted a refugee status document expeditiously by DHA. An asylum seeker from Rwanda told Human Rights Watch:

From the time I began renewing my [asylum seeker] permit since my arrival in the South Africa in 2002, I noticed a number of other applicants receiving the refugee status permit quickly. When I inquired, I was informed that I could get it for a fee. So I paid R 1,000 (U.S. $170) for me and my family.⁵⁸

UNHCR officials have noticed that false documentation appears to be provided by mobile or other informal (and completely illegal) parallel “immigration offices” located near DHA offices and the refugee reception offices, including in Johannesburg.⁵⁹ At these parallel offices, pre-processed documents are given out or asylum permits renewed for a fee. There is a semblance of legitimacy to the transactions, although the individuals involved remain—often unknowingly—undocumented since the transactions are never entered into the DHA system.

Response of Department of Home Affairs

DHA has publicly acknowledged the existence of corruption within its ranks and has punished some officials implicated in illegal schemes such as creating mobile or “back door” immigration offices.⁶⁰ Two DHA officials, for example, were arrested in February 2005 for offering fake South African identification documents to undocumented Zimbabwean immigrants.⁶¹ More comprehensively, DHA has begun to take steps through a “Turnaround Strategy,”⁶² announced in November 2003, to reduce the “corruptibility” of its officials.⁶³ The DHA Director-General has called for a “holistic approach to countering corruption,” aimed at stopping the “syndicates that are perpetually corrupting our officials.”⁶⁴ According to the DHA website, the Turnaround Strategy is “aimed at improving efficiency in the department across all the sectors,” including personnel. With specific reference to the problem of corruption, the Turnaround Strategy is to be led by the National Intelligence Agency, with the goals of improving morale and working conditions; educating and motivating DHA officials; dealing with the people attempting to bribe DHA officials and officials seeking bribes; improving service delivery; and establishing a chief directorate to focus on counter-corruption and security.⁶⁵ On April 12, 2005, DHA launched the National Immigration Branch as part of the Turnaround strategy to “professionalize the exercising of control over the entry, stay, and departure of foreigners in the country as regulated by the Immigration and Refugee Acts.”⁶⁶

Lack of official interpreters

The Refugees Act regulations provide for government-funded interpreters at all stages of the asylum process “where practicable and necessary.”⁶⁷ UNHCR also makes clear that interpreters are a key component of fair refugee status determination procedures, and stresses in its Handbook on Procedures and Criteria for Determining Refugee Status (hereafter, UNHCR Handbook) that asylum applicants “should be given the necessary facilities, including the services of a competent interpreter, for submitting [their] case to the authorities concerned.”⁶⁸ The competency of interpreters is not only a matter of their technical linguistic ability, but also a matter of their impartiality, and training in cultural and child-sensitivity in the context of refugee status interviewing.

Despite the regulations and UNHCR’s guidance, however, there are no officially recognized interpreters at the Johannesburg refugee reception office. While the refugee reception office in Pretoria employs two official interpreters, an informal network of “volunteer” interpreters in Johannesburg double as intermediaries in and around the refugee reception office. Because of the lack of professional, official interpreters, refugees and asylum seekers who are unable to understand interviews in English are obliged to use the services of these informal networks. DHA acknowledges that these networks are facilitating bribes and accepting monies for services that should be provided for free and rendered by the office itself.⁶⁹ The head of the refugee reception office in Johannesburg acknowledged to the Office of the Public Protector that he has, on occasion, found it necessary to “dismiss” several of the informal interpreters who had been taking fees from asylum seekers for their services, and added that the interpreters “are in no manner accountable to the [DHA].”⁷⁰

In September 2004, a DHA official told Human Rights Watch that DHA planned to employ officially recognized interpreters by 2005.⁷¹ As of August 2005, the Johannesburg refugee reception office did not have official interpreters.

Delays in the determination of refugee status

After an asylum seeker has gained access to the refugee reception office and been issued with an asylum seeker permit, procedural delays continue. UNHCR, supported by the UN General Assembly,⁷² has consistently noted the need for asylum procedures to be “efficient, expeditious and fair.”⁷³ As part of the Global Consultations on International Protection,⁷⁴ UNHCR sought to identify the key elements central to all asylum seeker reception and refugee status determination systems, recognizing the inherent differences in states’ capacities and resources. The key elements identified by UNHCR included “stay in dignity, freedom of movement, respect for family life, access to education, access to health, information on procedure and rights in a language [the asylum seeker] can understand, swift and fair processing of cases to address some of the more difficult conditions of reception, and appropriate arrangements to meet special vulnerabilities” [emphasis added].⁷⁵ ExCom Conclusion 30 calls on countries to “allocate sufficient personnel and resources to refugee status determination bodies so as to enable them to accomplish their task expeditiously.”⁷⁶

South Africa’s domestic refugee law also recognizes the need for refugee status determination procedures to occur with relative speed; as noted above, the regulations to the Refugees Act envision status determinations to be finalized within six months (180 days) of the submission of an asylum application.⁷⁷ In practice, however, Human Rights Watch and others have found that this is generally not the case.⁷⁸ A survey commissioned by UNHCR in 2003, for example, found that 70 percent of respondents (in this case, all of whom were asylum seekers) had not had their claims adjudicated within 180 days of submitting their asylum applications.⁷⁹

In practice, waiting periods for refugee status determination are often one year or longer. Examples of such lengthy waiting periods include an asylum seeker from Burundi who had been in South Africa since 2001 and a Congolese asylum seeker in the country since 2000, both still awaiting the determination of their status at the time of Human Rights Watch’s August 2004 visit.⁸⁰ A Burundian asylum seeker applied for asylum in July1997, and as at September 2004 when he was interviewed by Human Rights Watch he was still waiting for a decision on his application. With no access to any form of state-funded social assistance, asylum seekers are left to fend entirely for themselves during the long determination proceedings.

DHA, including an official at the Johannesburg refugee reception office, has acknowledged the problems encountered in finalizing cases within the 180-day period stipulated under the Refugees Act regulations.⁸¹ The long delays in the process have resulted in a national backlog of between 80,000 and 115,000 pending applications.⁸² As of late 2004, DHA has, with assistance from UNHCR, embarked on its second project in four years to deal with the backlog of applications at the Johannesburg refugee reception office.⁸³ In addition, UNHCR and DHA recognize that the staffing at the Johannesburg office was barely adequate to process the large numbers of asylum seekers, and that computer equipment was insufficient and unreliable for processing applications efficiently.⁸⁴

As of November 2004, the number of refugee reception officers in the Johannesburg office increased from five to twenty three, and refugee status determination officers from six to eight, according to a DHA official. However, despite these increases, the continuing backlog of applications and an inefficient system of admitting new applicants indicate that neither human resources nor equipment are yet adequate to meet the need.

The long delays in processing claims in South Africa are of concern in large part because of the precarious legal situation and living conditions in which many asylum seekers find themselves during the year or more that their claims are pending—including the common denial of access to work or study, often based on employers wrongfully refusing to accept a Section 22 permit issued by the DHA that allows asylum seekers to work and study during the refugee status determination period, harassment by police and other government officials, lack of recognition on the part of both public and private authorities of their documents, and difficulties in finding accommodation.

In recounting the problems experienced while waiting for refugee status to be determined an asylum seeker told Human Rights Watch, “Before it was okay to find security guard work. Now you cannot get authorization from the security officers’ board to work. They want refugee status.”⁸⁵ The asylum seeker had been on a Section 22 permit since 2001.

Another asylum seeker from the DRC who acquired an asylum seeker permit in 2003 told Human Rights Watch, “When I went to the licensing office in Johannesburg to register to take a test to be able to drive a lorry, they did not accept the asylum permit.  [The authorities] said it was not proper identification. They say I must have refugee status in order to register for the license.”⁸⁶

UNHCR recommends that the reception conditions outlined in domestic refugee law “take careful account of the length of asylum procedures.”⁸⁷ According to the UN agency, the benefits accorded asylum seekers should be “commensurate with the anticipated length of the procedure.”⁸⁸

Failure to recognize the legal right to work and study

Under South African law, asylum seekers are permitted to work and study during the refugee status determination period. DHA officials are required to issue asylum seeker Section 22 permit that clearly indicate the bearers’ entitlement to work and study.

In the first few years of the administration of the Refugees Act (2000-2003), bearers of asylum seeker permits were not legally entitled to work or study pending determination of status. If a decision was not made within the 180-day period, an applicant could approach the Standing Committee for Refugee Affairs to have the prohibition lifted, and gain permission to engage in these activities.⁸⁹

Following a legal challenge to the prohibition in Watchenuka v Minister of Home Affairs,⁹⁰ however, the Standing Committee for Refugee Affairs ruled on March 30, 2004 that all asylum seekers should be allowed to work and study.⁹¹

All refugee reception offices are required to implement the decision. In theory, therefore, asylum seekers in South Africa now have the legal right to work and study. However, the Johannesburg refugee reception office inconsistently implements the Standing Committee for Refugee Affairs’ decision to lift the prohibition on work and study from asylum seeker permits. It appears that refugee reception officers are applying the ruling arbitrarily and in other cases the prohibition is lifted only after bribery or intervention by lawyers.

A DHA official at the Johannesburg refugee reception office assured Human Rights Watch that the prohibition was no longer in effect.⁹² Although the prohibition was deleted on some permits issued in June 2004 in Johannesburg, Human Rights Watch viewed others on which the prohibition is still firmly imprinted.⁹³ Service providers told Human Rights Watch that they continue to receive cases where asylum seeker permits are issued with the prohibition intact.⁹⁴ Although precise statistics are unavailable, estimates from the legal clinic of the University of the Witwatersrand as of February 2005 are that more than half of newly issued permits still have the prohibition imprinted on them.⁹⁵ In most instances, the prohibition will only be removed if the asylum seeker specifically requests its removal (through the assistance and intervention of lawyers or NGOs). This only occurs, however, if the asylum seeker is aware that the law has been changed.

An asylum seeker from Burundi who arrived in South Africa in 2001 told Human Rights Watch:

I am looking for a loan to start a small business, but I cannot because the permit says I cannot work. Jesuit Refugee Services [JRS] cannot give me a loan because they say my goods will be confiscated. Now I do not work. I do not know where to get food.⁹⁶

The failure to implement the legal right to work and study uniformly and to remove the prohibition on work and study from asylum seeker permits over a prolonged period prevents asylum seekers from engaging in legitimate economic activity to provide for their basic welfare needs. Since South Africa does not grant asylum seekers access to state financial support or assistance with food and shelter, denial of the right to work can threaten the health and life of particularly destitute asylum seekers.

Hearing before the refugee status determination officer and determination of claims

Once an asylum seeker has seen a refugee reception officer and been issued an asylum seeker permit, the officer transmits the applicant’s file to the refugee status determination officer, who in turn makes a determination to grant refugee status. Under the Refugees Act regulations, the hearing—effectively the asylum seeker’s second interview—should occur within thirty days of the completion of the initial application.⁹⁷

The refugee status determination officer interviews the asylum seeker⁹⁸ to verify the claim for asylum. Based on the evidence presented, the officer may either grant the applicant refugee status or deny the application on grounds that it is “manifestly unfounded, abusive or fraudulent”, or simply “unfounded.”⁹⁹ Where asylum has been denied, reasons must be furnished to the applicant in writing.¹⁰⁰

Under South Africa law, to be recognized as a refugee, the refugee status determination officer must find that the individual meets any one of the three components of South Africa’s refugee definition:

(a) [a person who,] owing to a well-founded fear of being persecuted by his or her race, tribe, religion, nationality, political opinion or membership of a particular social group, is outside of the country of his or her nationality, and is unable or unwilling to avail himself or herself of the protection of that country, or, not having a nationality and being outside the country of his or her former habitual residence is unable or, owing to such fear, unwilling to return to it; or

(b) [a person who,] owing to the external aggression, occupation, foreign domination, or events seriously disturbing or disrupting public order in either a part of the whole of his or her country of origin or nationality, is compelled to leave his or her place of habitual residence in order to seek refuge elsewhere; or

(c) [a person who] is a dependant of a person contemplated in paragraph (a) or (b).¹⁰¹

The refugee definition in the Refugees Act incorporates terms from both the 1951 UN and OAU Refugee Conventions. This is important since the OAU definition expands the 1951 Refugee Convention’s individualized persecution standard by also including flight caused by (among others) “events seriously disturbing the public order.” This is widely interpreted to mean civil conflict and war—the situations from which most successful asylum seekers in South Africa have fled. The OAU definition further recognizes as refugees people who fled conflict “in either a part or the whole of a country.” This means, in theory, that an asylum seeker from eastern DRC (for example) would not necessarily first have to seek safety (a so-called internal flight alternative) in Kinshasa before being considered as having a legitimate claim to protection in South Africa.¹⁰²

No other criteria besides the two definitions are used in determining refugee status. Commentators suggest, however, that when full written decisions are issued, which is not always the case (see below), the definitions are generally interpreted broadly.¹⁰³ South Africa was one of the first states to accept suggested guidelines on gender-based asylum determinations.¹⁰⁴ In keeping with the principles of equality outlined in the South African constitution, the Refugees Act also defines “particular social group” quite inclusively; including, among others, gender, sexual orientation, disability, class and caste.¹⁰⁵

Appeal and review of refugee status determination decisions

The Refugees Act sets up a formal structure for administrative appeals and review of negative asylum decisions (a provision absent in the previous Aliens Control Act with regard to any immigration decision).¹⁰⁶

The Standing Committee for Refugee Affairs reviews decisions by the refugee status determination officers of cases found to be manifestly unfounded, abusive or fraudulent.¹⁰⁷ This body can either set the decision aside or confirm it the refugee status determination officer’s decision.

An applicant is entitled to appeal the decision before the Refugee Appeals Board where a claim for asylum has been rejected because it is simply “unfounded.”¹⁰⁸ Between receiving the initial rejection and formally lodging an appeal, however, DHA retains the asylum seeker’s permit. During this period the individual has only the rejection letter to indicate his or her legal status in the country. A notice of appeal must be lodged with the Refugee Appeals Board within thirty days from receipt of the rejection. Upon lodging an appeal, the asylum seeker is reissued his or her original asylum seeker permit.

Lack of legal representation

A legal representative may assist in both the administrative appeals and judicial review processes.¹⁰⁹ But the Refugees Act does not provide for free legal assistance to applicants. Service providers expressed concern to Human Rights Watch that although many rejected asylum seekers do exercise their right to appeal, the majority do not have access to legal representation or assistance during the process, largely because they are unaware of their right to counsel, cannot afford it, or do not know how or where to find pro bono or low-cost legal assistance.¹¹⁰ A member of the Refugee Appeals Board confirmed to Human Rights Watch that the majority of refugees do not have legal representation when they appear before the board.¹¹¹

Growing backlog of appeals

On balance, the Refugee Appeals Board does not hear more than seven appeals a month from appellants registered at the Johannesburg refugee reception office. This is both because of the limited number of first decisions taken, and also the board’s own limited capacity since it has received on average forty appeals per month since 2000.¹¹² Since a large proportion of rejected cases are now being appealed, however, a significant backlog is forming within the appeals board, in addition to the backlog of original applications.¹¹³

Since its inception in 1997 (the year South Africa began accepting asylum applications on an individual basis), the Refugee Appeals Board has received a total of 13,600 appeals, of which approximately seventeen percent (2,361 cases) have been successful. Since the implementation of the Refugees Act in April 2000, the appeals board has received 2,161 new appeals (which are part of the total received since 1997). At the time of writing, 1,721 of these cases have been finalized, with approximately twenty-one percent (365 cases) approved. More than 400 cases are still pending.¹¹⁴

The board comprises five adjudicators. One or two adjudicators generally preside over a hearing—though all five members will eventually make a decision on the case.¹¹⁵ Lawyers representing asylum-seeking clients have raised concerns that, despite rules requiring a record of proceedings,¹¹⁶ there is no formal record keeper during the hearings, and that this may prejudice the outcome of a decision.¹¹⁷ The board convenes once a week to decide on cases. According to the Wits Law Clinic, the appeals board renders its decisions in a relatively short timeframe. However, delays occur in acquiring files from the department, as well on the part of the refugee status determination officers in relaying the appeal board’s decision to the asylum seeker.¹¹⁸

Once the appeal board has considered a case, it may confirm, set aside, or substitute the decision of the refugee status determination officer. According to the South African constitution, everyone—including an asylum seeker—has the right to just administrative action, which includes judicial review and the right to appeal.¹¹⁹ The rules of the refugee appeals board further guarantee the right to judicial review of determinations.¹²⁰ Thus asylum seekers who have had their applications rejected by the appeals board may bring their case before a local high court. Doing so requires going through another lengthy and complicated process, which is rarely used by asylum seekers.¹²¹ Moreover, the Refugee Appeals Board has shown a preference to rehear any case that would otherwise be brought before the national judiciary.

Although an appeal is an inquiry on a matter of law, in South Africa all issues of law and fact are newly considered at the asylum seeker’s appeal.¹²² This in part recognizes the inherent inadequacies of decision-making in the first instance, in that the appeal is sometimes de facto the first substantive examination of the asylum seeker’s full application. Primary decisions are often based on less-than-complete information. According to a lawyer from the only free legal service provider for refugees and asylum seekers in Johannesburg (who appears before the refugee appeals board on a regular basis), and through Human Rights Watch’s examination of files, in some cases files contain only the eligibility form, completed by the refugee reception officer when the asylum seeker first presented him or herself at refugee reception office. The Wits Law Clinic reports that it has never seen a record of the appeals board using the refugee status determination officer’s initial inquiry into the merits of the claim.¹²³ Without full documentation (namely, on what basis the refugee status determination officer decided to decline the application), it is difficult to properly appeal a case.

Refugee status entitlements

“The [refugees] have entitlements which they do not enjoy.”
- Co-ordinating Body for Refugee Communities, Johannesburg, July 9, 2004.

Once asylum seekers are recognized refugees in South Africa, they are entitled to documents that establish their identity as protected persons, as well as to several entitlements concomitant with having obtained refugee status in the country.  Unfortunately, as with many of the steps along the way to achieving recognition as a refugee, obtaining identity documents is often very difficult. In addition, refugees often face obstacles in enjoying the entitlements they should be afforded under South African and international refugee law.

The Refugees Act provides that a refugee “enjoys full legal protection, which includes the rights set out in [the Bill of Rights] of the [South African] Constitution,” and “is entitled to seek employment and… to the same basic health services and basic primary education which the inhabitants of the Republic receive from time to time.”¹²⁴ In general terms, with regard to the rights to work, to health services and primary education, these provisions bring South Africa’s domestic law in accord with obligations under the Refugee Convention. These are: to give refugees the same treatment as nationals of South Africa with regard to elementary education; to give them the same access to rationed products or to public relief and assistance as is afforded to nationals; and to give refugees the most favorable treatment afforded to nationals of a foreign country in the same circumstances as regards the right to work.¹²⁵

Documentation and duration of refugee status

The formal recognition of refugee status is acknowledged in a permit on a single A4 piece of paper similar to the asylum seeker permit. The refugee status permit is valid for two years. The permit further states that the refugee shall apply for a refugee identity document within fourteen days of receiving the permit.¹²⁶ The issuance of the refugee identity document is not automatic on receipt of the refugee status permit. The refugee is left carrying the permit, which is not readily accepted by potential employers and private bodies,¹²⁷ until he or she is able to secure the refugee identity document from the head office of DHA in Pretoria.  

As one refugee told Human Rights Watch, “one has to apply for a refugee identity document which is supposed to take three months, but it takes six to twelve months.”¹²⁸  In June 2005, Human Rights Watch interviewed a refugee who has been waiting since 2001 for DHA to issue him with a refugee identity document. He said:

I was granted status in November 2001. I applied for a refugee identity document [ID]…I visited the Braamfontein office every two and in some cases three months to find out if my ID had arrived. This went on for a year. Towards the end of the first year, the office told me that they could not give me an ID because my [refugee status] permit would be expiring in a year. They said I should wait until I am granted my new status.

My status expired in November 2003. I submitted my letter requesting that my refugee status be renewed three months before the date of expiry. On the             date of expiry, my refugee status permit was extended for three months and at other times two months. Each time I had to travel from Pretoria to Johannesburg. They did not tell me anything when they extended my permit. I could not ask questions as to why my refugee status was not reinstated for the full two years. It is difficult. You stand in the queue, they take your paper with other papers, and they extend it in the office and give it back to you. There is no chance to ask questions. I finally got my renewed status for a further two years in November 2004.¹²⁹ 

I again applied for my ID once I had the refugee status permit reinstated. I went to the office in February 2005. The office told me it was not ready. I returned to the office in March 2005. Still the ID was not ready. I decided to find help. I approached the human rights lawyers [LHR]. They are now helping me. It is now June and I still do not have the ID.

It is difficult to find a job with only the paper. They ask you for an ID.¹³⁰

A 2003 study commissioned by UNHCR found that most refugees interviewed were unable to secure employment and open a bank account with only a permit and without a refugee identity document.¹³¹ As a refugee with a formal refugee status permit explained to Human Rights Watch: “I wanted to open a banking account. I went to one of the big banks in South Africa. They wanted South African identification.”¹³²

Nothing under international refugee law or in the Refugees Act suggests that refugee status should be anything other than continuous, unless and until the provisions analogous to the Refugee Convention’s ‘cessation clauses’ are invoked.¹³³ It would therefore appear that the Refugees Act and its regulations are being misapplied, with officials forcing refugees to renew the refugee status permits periodically.

Regulation 15(2) and (3) provide:

The refugee identification document will be valid for an initial period of two years from the date asylum is granted…

To avoid lapses between the date of expiry and any renewal of the identity document, an individual must apply to the Standing Committee [for Refugee Affairs] for renewal of the document…

A refugee is required to re-apply ninety days prior to the expiration of the refugee identity document.¹³⁴ This requirement was apparently intended merely to monitor the whereabouts and confirm the continued presence in South Africa of refugee identity document holders, not to suggest that refugee status must be periodically reexamined. In practice, however, DHA requires a refugee to submit a letter re-asserting his/her claim for refugee status and requesting that the refugee identity document (or sometimes, erroneously, even the refugee status permit) should be extended. The Standing Committee for Refugee Affairs will then consider whether or not the applicant will remain a refugee “indefinitely”, which has been qualified by the Refugees Act as meaning “in the foreseeable future.”¹³⁵ If a favorable determination on this matter is not made, a recognized refugee may be required, in effect, to re-submit his or her claim every two years.¹³⁶ 

Such a refugee in Johannesburg, for example, must appear at the Johannesburg refugee reception office where the claim will be re-examined without an interview. The identity document (or sometimes, erroneously, the refugee status permit) will be extended for a further two years or withdrawn. Withdrawal could mean that the refugee would be treated thereafter as merely an “illegal foreigner” subject to arrest and deportation.¹³⁷ DHA was unable to tell Human Rights Watch how many refugees, if any, in South Africa have had their status withdrawn in recent years and on what grounds, other than failure to appear.

The need to renew the refugee identity document every two years in the manner proscribed by the regulations effectively means that, for some refugees,¹³⁸ their status in South Africa is temporary in nature. 

Where renewal of refugee status and/or a refugee identity document is not automatic, but requires the individual to repeatedly remake his or her case in a substantive way, even if only through a letter reasserting the reasons why he/she needs protection, the host State is ignoring the authoritative guidance of UNHCR on implementation of the Refugee Convention. South Africa’s current practice therefore should be brought into line with UNHCR guidance and the overwhelming majority of state practice. Such reform would also be a matter of efficiency in a system already struggling to find the capacity to examine refugees’ initial claims.

This need to renew refugee status repeatedly also creates a sense of insecurity and is an obstacle to integration into the community. As outlined in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, there is a “need to provide refugees with assurance that their status will not be subject to constant review.”¹³⁹ Both the 1951 Refugee Convention and the UNHCR Statute, for example, call upon governments to “promot[e] the assimilation of refugees, especially by facilitating their naturalization.”¹⁴⁰ The OAU Refugee Convention calls upon member states to “use their best endeavors…to secure the settlement of…refugees.”¹⁴¹

At the time of the Human Rights Watch interviews, refugees expressed concern that refugee identity documents had a different color and appearance than identity documents issued to South African citizens and permanent residents. Refugee documents are maroon in color, in the form of a card that opens with a photograph of the bearer on one side and his or her personal details on the other. Some refugees say that their documents appear “fake” (simply because unfamiliar) to uninformed employers, civil servants, landlords, and others.¹⁴²

According to the UNHCR office in Pretoria, DHA will begin to phase out the existing refugee identification documents in favor of a generic “smart card” in the second half of 2005.

Permanent residency

A refugee can apply for permanent residence if he or she has been living in South Africa on a refugee status permit for a minimum of five consecutive years.¹⁴³ For a recognized refugee to receive a permanent residence permit, the standing committee for refugee affairs must have certified that that person will remain a refugee “indefinitely.”

On March 30, 2004, the Standing Committee for Refugee Affairs published a decision intended to circumscribe the conditions under which certification shall be issued, namely: “…Where the appellant is likely to remain a refugee for the foreseeable future and the “foreseeable future” should be one year.”¹⁴⁴

The Standing Committee for Refugee Affairs further recommends an amendment to the law to allow refugees with status to apply for permanent residency after five years in South Africa without having to undergo the certification process. An official from DHA told Human Rights Watch that this amendment is still under review.¹⁴⁵ The regulations to the Refugees Act also note that the Standing Committee for Refugee Affairs may, in certain exceptional cases, waive the certification process altogether and declare at the time refugee status is granted that the refugee will remain a lawfully present refugee in South Africa indefinitely, even if circumstances in the country of origin have fundamentally changed. According to legal service providers, however, the Standing Committee for Refugee Affairs rarely—if ever—uses this power.¹⁴⁶

As of January 2005, following the intervention of NGOs, the Minister of Home Affairs, recognizing that refugees in protracted refugee situations “have limited choices and are generally not able to pay the prescribed fees,” decided to “exempt all refugees who have been certified as likely to remain refugees indefinitely from payment of fees for an application of permanent residence.”¹⁴⁷ Prior to this waiver, certified refugees wishing to apply for permanent residence status were required to pay the prescribed application fee as other non-nationals of R 16,000 (U.S. $2,670).