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VI. Inadequate protection for refugees and asylum seekers

Harassment, mistreatment and extortion of asylum seekers and refugees by law enforcement agencies

Outside of the refugee status determination process, asylum seekers and refugees are often subjected to harassment, mistreatment and extortion by police. Numerous news reports have highlighted that a dark skin complexion or not sounding “South African” are common reasons why police may question and detain certain people.¹⁴⁸

Even refugees and asylum seekers with valid documentation are not protected from harassment and extortion by law enforcement officials. In one case, an asylum seeker with valid documentation told Human Rights Watch that the police advised him to “change the paper or we will arrest you.”¹⁴⁹

The Johannesburg Metropolitan Police Department and the South African Police Services (SAPS) are responsible for policing, enforcement of municipal by-laws, and crime prevention activities in Johannesburg. Refugees and asylum seekers living in neighborhoods with high immigrant populations such as Hillbrow, Yeoville, Doornfontein, and Berea tend to be patrolled more vigorously by police than others. In addition to random stops and searches, the police in joint operations with the other relevant government departments conduct crime prevention swoops in particular neighborhoods thought to be high-crime areas.¹⁵⁰ In reality, however, NGOs have found that such raids also occur because non-nationals are often assumed by the police to be illegal immigrants (rather than lawfully present refugees or asylum seekers).¹⁵¹ For refugees and asylum seekers, however, these raids cause considerable problems such as unlawful arrest on the suspicion that they are in the country illegally, even when they may possess documents authorizing their stay in South Africa.¹⁵²

Human Rights Watch interviewed one man who reported that he offered money to police to prevent his arrest and detention. Another asylum seeker informed Human Rights Watch, “I know the police here [in South Africa] are corrupt. I know that if I give money, things will be fine.”¹⁵³ He told Human Rights Watch that he paid R 140 (U.S. $24) for the release of two friends who were charged with being in South Africa illegally.

An asylum seeker from Ethiopia told Human Rights Watch of the many times that police have harassed him. “The first time the police stopped me they asked me what this paper [asylum permit] was. They asked me where I got it. They said that I must make a plan for them not to worry me again. My friend told me that ‘a plan’ means money.”¹⁵⁴

Asylum seekers and refugees who assert their rights may be more likely to end up in detention. A refugee related to Human Rights Watch his treatment by the police on August 22, 2004:

At around 9:30 p.m. I decided to go downstairs to buy something to eat. I entered the lift, where there were six people; two of them were police officers. I greeted them. One of the police officers asked me for my papers. He searched me and squeezed my genitals. I asked him if this was the procedure of the police. I produced my permit. He took it and kept it. When we were in the foyer of the building, I told the police officer that I knew my rights. They said to me that I thought I know too much; this is South Africa. The police ordered a civilian who happened to be in the foyer to take me out to the police car. I protested. The police officer slapped me on my face. The other hit me under my eye with his head. The one police officer held me on one side and dragged me to the police car, which was some 100 meters from the entrance to the building. I and four other men, who it transpired were arrested by the same police, were taken to the Jeppe police station. In the van, the other four men proposed that we each contribute R 20 (U.S.$ 3.30) in order to be released. I refused as I said I did not know why I was arrested. At the police station, I was told to get out of the van and my permit was returned to me. The others remained inside. I entered the charge office. I was charged for assaulting a police officer, resisting arrest, obstructing the police officer in the execution of their duties. I asked the police why they brutalized me. They replied that whatever they did, I did not have a witness to prove it. They said they would see me in court.¹⁵⁵

The refugee was released from police custody the following day and the charges against him were withdrawn. Those who were left in the van were released (according to the refugee) having paid a bribe to the police officers.

Human Rights Watch interviewed several asylum seekers from Zimbabwe, who claim to have been harassed by the police.  This is what they remember:

Two weeks ago, a group of us were again arrested. Police asked us to produce papers. They told us that Home Affairs told them that they should arrest all Zimbabweans even if they have asylum papers. I was arrested and taken to Johannesburg central police station. At 3am the police called four of us. Three in the group each had R 600 (U.S. $100) and were released. I was held. Around 8am the same officer called me. I showed him my permit. He told me that the permit did not work. He was wearing black trousers, black jersey          with gold bars on shoulders.¹⁵⁶  The police asked me how much money I had. I said I had R 400 (U.S. $67). He took the money from me.¹⁵⁷

In another case of what appears to have been unlawful arrest and detention, an asylum seeker from Burundi explained to Human Rights Watch what happened to him:

Last week, seven of us were arrested by the police for allegedly drinking alcohol      and selling drugs on the premises. The eight police officers took us to the police station in a big white car [van]. On arrival at the police station, they me asked for my documents. When I asked them why I was being arrested they replied “Voetstek [derogatory term meaning ‘go away’].” When I said I did not do anything wrong, they         said “Voetstek Kwerekwere [a local derogatory term referring to other African nationals].” The charge sheet stated that I was arrested for drinking in a public place.  They [the police] told us that if we have       R 100 [U.S. $17] each we will be released. As I did not have the money, I was detained at Jeppe police station for the weekend and released on Monday.¹⁵⁸

In response to allegations of corruption by police from the Jeppe, the head of the station informed Human Rights Watch:

One cannot deny corruption exists. Where people come forward to report it, we have arrested the police [officer] concerned. The problem is that illegals [non-nationals] will not come forward—even if they have given a bribe. We are taking corruption seriously but we need people to report the problem in order to solve it.¹⁵⁹

Human Rights Watch found that most asylum seekers and refugees do not report instances of corruption or abuse to the authorities. As discussed earlier, numerous reasons exist for why this may occur—a key concern is that asylum seekers and refugees are reluctant to accuse persons of wrongdoing on whom they rely for documentation and other needs.¹⁶⁰

The head of the Jeppe station also suggested to Human Rights Watch that many police officers at his station do not recognize all refugee-related documents,¹⁶¹ and that this can result in disputes and unwarranted arrest. However, a DHA official contested this statement and maintains that law enforcement authorities are familiar with the documents issued to refugees and asylum seekers.¹⁶²

Arrest, detention and the threat of deportation of refugees and asylum seekers as “illegal foreigners”

In daily life, judgment on the immigration status of any person in South Africa is made, in most cases, by police officers, who are rarely trained in the specifics of refugee and asylum law or procedures, are unwilling or unable to accept the validity of the array of official identity documents, and often must deal with asylum seekers and refugees who are evasive about their identity or legal status for fear of being deported to a place where they may face persecution or civil conflict. As a police official explained to Human Rights Watch:

We ask them [non-nationals] to identify themselves. In most cases a person will say that he is South African. We ask certain things to verify their claim. Normally they say that their father is Zimbabwean and mother South African. If a person alleges he has a valid document, it is our responsibility to find the document. We should do that within twelve hours from arrest. This does not happen.¹⁶³

Where a police officer has detained an individual on suspicion that he or she is an illegal foreigner, the Immigration Act requires that the officer issue an affidavit specifying the reason for the arrest and turn the individual over to an immigration officer within twelve hours.¹⁶⁴

According to the Act, immigration officers may not hold an individual in custody for longer than forty-eight hours without conducting an investigation and making a determination on his or her legal status.¹⁶⁵ If the individual is found to be in South Africa illegally, he or she may be deported.¹⁶⁶ However, the detainee may in fact have a valid document, such as a refugee status identification document or an asylum seeker permit. However, a poorly trained police officer might refuse or fail to recognize it.  Also, the detainee might not be in possession of the document at the time of arrest. If that is the case and the individual is determined to be a refugee or in the process of seeking asylum, he or she should not be held in detention or deported.

To function properly, therefore, the process of determining whether or not a detainee is an illegal foreigner or a refugee or asylum seeker necessarily requires cooperation and communication between the police and DHA, including immigration officers. The police are not immigration officials; nor are they sufficiently trained in immigration and refugee law. Instead, they rely on the expeditious assistance of DHA to ensure that they act within the law when detaining persons in these categories. However, the head of Jeppe police station told Human Rights Watch that his staff does not receive the required cooperation from DHA, particularly in verifying the status of a person alleging to be an asylum seeker or refugee: “When you phone them [DHA], they say they are coming and do not come.”¹⁶⁷

Commentators have suggested that DHA should ensure that police services are adequately trained in refugee and asylum law, particularly to recognize documents and to understand the proper procedures used for refugees and asylum seekers, in contrast to those for illegal foreigners. Such training would be a useful step in ensuring that refugees and asylum seekers are not routinely, and mistakenly, arrested and detained as “illegal foreigners.”

Unlawful detention and the threat of deportation of refugees and asylum seekers at Lindela Deportation Center¹⁶⁸

Where police doubt the nationality or status of an arrested person or a delay exists in determining status, they transfer the person to Lindela deportation center pending further investigation.¹⁶⁹ Therefore, refugees and asylum seekers sometimes find themselves at Lindela, despite the requirement that “reasonable” grounds must be produced to support the detention of any asylum seeker in South Africa, and that recognized refugees are protected from detention under South African law. Refugees and asylum seekers detained at Lindela are eventually released after verification of identity; as such, one immigration official referred to the center as a “holding facility”.¹⁷⁰  He explained to Human Rights Watch:

In the case of refugees, we give them a certificate to report to the nearest refugee     reception office. The certificate is valid for fourteen days. On September 27, 2004, for example, we released 26 refugees.¹⁷¹ 

As an asylum seeker from Burundi told a Human Rights Watch researcher, “I was then taken to Lindela. I was released from Lindela on August 7, 2004. I was given a paper that said that I should report to the refugee reception office to apply for asylum.”¹⁷² 

During a visit to Lindela in November 2003, a Human Rights Watch researcher interviewed an Angolan asylum seeker who had his asylum seeker permit. An NGO facilitated his release. In the first week of October 2004, a national from the DRC whose status as a refugee had already been recognized in South Africa was detained at Jeppe police station and transferred to Lindela, purportedly as an “illegal foreigner.” Again through the intervention of an NGO, the refugee was released two days later, after DHA verified his status.¹⁷³

An asylum seeker from Burundi told Human Rights Watch that after several failed attempts to gain access to the Johannesburg refugee reception office and secure an asylum seeker permit he was arrested on August 16, 2004 for being an “illegal foreigner”.¹⁷⁴ He was initially detained at Jeppe police station, where he spent the weekend before being transferred to Lindela the following Monday. He was detained at Lindela for three weeks. Upon release, the asylum seeker was issued the standard form given to newly arriving asylum seekers at points of entry into South Africa, requesting that he present himself to the nearest refugee reception office within fourteen days.

In response to questions about unlawful detentions, DHA replied in a written communication to Human Rights Watch, “The National Immigration Branch will not transfer a person to Lindela before relevant information is validated.”¹⁷⁵

Detention beyond the thirty-day limit

Lawyers for Human Rights and the South African Human Rights Commission (SAHRC; a statutory body) have recorded hundreds of instances where persons, who the South African authorities are attempting to deport, including some asylum seekers, have been detained without judicial review beyond the thirty-day limit.¹⁷⁶ Following a legal action instituted by the SAHRC, the local High Court in 1999 ordered DHA and Lindela’s management to make reasonable arrangements to prevent prolonged detention and to report to SAHRC on these arrangements.¹⁷⁷ However, since this order was made, persons who are being threatened with deportation continue to be held for periods in excess of thirty days¾placing DHA in contempt of the court order. The head of Lindela acknowledged that before August 2004 prolonged detentions were common.¹⁷⁸  However, he assured Human Rights Watch that systems were now in place to prevent prolonged detentions. The center is aiming to have detainees released or deported by thetwenty-third day of detention and has also instituted a system to apply to the lower courts requesting for an extension of detention.

The International Covenant on Civil and Political Rights and the South African Constitution guarantee the right of every person not to be arbitrarily arrested and detained.¹⁷⁹ This applies equally to asylum seekers and refugees. In its guidelines on the detention of asylum seekers and in various ExCom conclusions, UNHCR adds focus to this prohibition specific to asylum seekers, emphasizing that “as a general principle asylum seekers should not be detained.”¹⁸⁰ Because such detention is “inherently undesirable,” it “should only be resorted to in cases of necessity.”¹⁸¹ The guidelines further note that for the detention of an asylum seeker to be considered lawful and not arbitrary, the detention must comply not only with the applicable national law, but with international law. Detention should be reasonable, non-discriminatory, and proportional to the objectives to be achieved.¹⁸² More generally, the guidelines suggest that “there should be a presumption against detention.”¹⁸³

In keeping with these international norms, the Refugees Act aims to limit the detention of asylum seekers, noting that they may only be detained in cases where it is “reasonable,” and even then it should not be for longer than thirty days unless reviewed by a judge.¹⁸⁴

The most egregious violation that results from these faulty procedures is the return of a refugee to a place where he or she faces persecution. Returning anyone to a place where persecution is feared without proper procedures to determine whether he or she is a refugee violates of the prohibition against refoulement—the most fundamental principle of international refugee law. The principle of non-refoulement is now an accepted principle of customary international law.¹⁸⁵ Section 2 of the Refugees Act states that, “no person may be extradited or returned to any country…if as a result of such extradition of return…he or she may be subjected to persecution…or his or her life, physical safety or health would be threatened…” Unfortunately, such returns have occurred from South Africa. UNHCR has stated that deportations of refugees or asylum seekers have occurred from Lindela, though the agency suggests that such deportations occur principally as a result of ignorance on the part of Lindela staff regarding the proper procedures and legal standards regarding refugees and asylum seekers.¹⁸⁶

Failure to adequately protect unaccompanied minors

“There is no clear procedure as to what to do when we receive unaccompanied minors.”
– Department of Home Affairs, Johannesburg Refugee Reception Office, September 9, 2004.

Legal standards

In relation to children seeking asylum, Article 22 (1) of the UN Convention on the Rights of the Child provides that: “States parties shall take appropriate measures to ensure that a child…who is considered a refugee in accordance with international and domestic law…shall, whether accompanied or unaccompanied…receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention.” Those rights include, among others, legal and administrative protection, basic health care, and education.

Additionally, UNHCR has elaborated guidelines to assist states in realizing appropriate policies and procedures for protecting unaccompanied children seeking asylum¹⁸⁷ and other refugee children.¹⁸⁸ The guidelines on asylum-seeking children define an unaccompanied child as “a person under the age of eighteen years…who is separated from both parents and is not being cared for by an adult who by law or custom has responsibility to do so.”¹⁸⁹ Children should have access to social services such as education and health care regardless of their status.¹⁹⁰ Further, they should be given priority in the refugee status determination process,¹⁹¹ and, according to UNHCR’s Executive Committee reception standards, their particular vulnerabilities and needs—including education and medical attention—should be accommodated.¹⁹²

Equal access to education is provided for in Article 22 of the 1951 Refugee Convention, which states that, “the Contracting States shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education.” Both the UN Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child further recognize a right to basic education.¹⁹³

In the South African constitution, the rights of all children, irrespective of nationality and origin, are enshrined in Section 28 (1). In particular, every child has the right to:

(c) Basic nutrition, shelter, basic health care services and social services;

(b) Family care or parental care, or to appropriate alternative care when removed from the family environment; and

(g) Not to be detained except as a measure of last resort.

Family reunification is an important principle recognized by international law in relation to unaccompanied and separated children. Article 22 (2) of the UN Convention on the Rights of the Child calls on states to assist, in cooperation with UNHCR and NGOs, with the tracing of family members “in order to obtain information necessary for reunification with his or her family.” Finally, children seeking asylum in South Africa, like all asylum seekers who have obtained the necessary permit, have rights to work and study under Section 22 of South African law (see discussion above).

Children and the refugee status determination process in South Africa

The Refugees Act explicitly acknowledges that unaccompanied children may seek asylum in South Africa.¹⁹⁴ Children fleeing persecution are, like any adult asylum seeker, required to present themselves to the nearest refugee reception office. There, they are expected to queue with adults. Under the Refugees Act, however, once an unaccompanied child appears before a refugee reception officer, the child should “forthwith” be brought before a Children’s Court so that it may assess the needs of the child and order appropriate arrangements for the child’s care and guardianship.¹⁹⁵ In addition, section 32(2) also provides that the Children’s Court “may order that a child…be assisted in applying for asylum.” The refugee reception officer should also contact UNHCR to assist with tracing of family.

An official at the Johannesburg refugee reception office stated to Human Rights Watch that in practice it did not refer unaccompanied children to other agencies such as UNHCR or its implementing partner, the Jesuit Refugee Service (JRS).¹⁹⁶ The officer did not have guidelines on how to deal with children seeking asylum. The Refugees Act and its regulations both fail to clarify whether an asylum seeker permit should be issued before the referral or whether this will be done once the Children’s Court has assessed the needs of the child. 

As not all unaccompanied children possess documents indicating their identity and age, it is not apparent who and how age determinations are made at the refugee reception office. While the provision places the burden of ensuring the best interests of the child on the Department of Social Development, it fails to recognize the role of DHA in protecting child asylum seekers, namely the confirmation of legal status of the child in South Africa to obtain social services.

Detention of unaccompanied children at Lindela Deportation Center

Under the Refugees Act, children should only be detained as a measure of last resort, and for the shortest appropriate amount of time.¹⁹⁷ This wording reflects language in the UN Convention on the Rights of the Child.¹⁹⁸ UNHCR’s guidelines on refugee children and on detention of asylum seekers state unequivocally that “children who are asylum seekers should not be detained.”¹⁹⁹

While an immigration official at the Lindela deportation center told Human Rights Watch that “[it] does not detain children there,”²⁰⁰ in reality some children, including asylum seekers, have been and continue to be detained at the center. In November 2003, ten unaccompanied children between the ages of ten and fifteen were detained at Lindela.²⁰¹ Two of those were South Africans who were wrongfully apprehended by the authorities. These children, mostly boys, shared facilities with adult men. The few girls detained shared quarters with women.²⁰²

In 2004, Lawyers for Human Rights challenged the unlawful detention of fourteen unaccompanied children being held with adults at Lindela for the purposes of deportation.²⁰³ During the legal action, the children were instead held in a “place of safety,”²⁰⁴ Dyambo, which is located next to the deportation facility. On September 13, 2004, the Pretoria High Court ordered DHA not to admit unaccompanied non-national children at Lindela, and held that current detentions there were unlawful, invalid, and should cease immediately.²⁰⁵

Following this judgment, the head of immigration at Lindela told Human Rights Watch that a request had been transmitted to the Department of Social Development to assist with appropriate placement for the fourteen unaccompanied non-national children, but that, as of September 2004, they had not yet received a response.²⁰⁶ At the time of Human Rights Watch’s second visit to Lindela, the children were detained in a separate section from the adults, and, according to Lindela staff, the children ate at different times from the adult detainees.²⁰⁷ By January 2005, the children were moved to another “place of safety” on the outskirts of Johannesburg.

Children’s lack of access to assistance and social services

Even when issued with an asylum seeker permit, children do not necessarily receive the assistance that the Department of Social Development is supposed to provide to all children in need of care, regardless of their status.²⁰⁸ Unaccompanied asylum-seeking children in particular experience difficulties in access to protection and social services, including education, due to their lack of well-recognized identity documents.²⁰⁹

Instead of being cared for by the Department of Social Development, unaccompanied children seeking asylum are taken in by or are informally placed with guardians—normally refugees or asylum seekers speaking the same language or from the same country who can assist them with their application.²¹⁰ However, these informal arrangements may not always provide a stable home for a child, particularly where living arrangements are precarious and the guardian’s status has not been determined by DHA. A thirteen-year-old boy from the DRC, who speaks KiSwahili, went to the Johannesburg refugee reception office with an acting guardian. He had been in the country without a valid document for approximately two months. The boy explained to Human Rights Watch:

I do not have papers. The lawyers [Wits Law Clinic] gave me a paper to help me at Home Affairs. At Home Affairs they say they are waiting for the head [of the office]. They said I must return to the [refugee reception] office. I have been there five times.²¹¹

Through repeated queries by a Human Rights Watch researcher, it transpired that this boy was unable to gain access into the refugee status determination process in September 2004 because of technical problems at the office with the issuance of new asylum seeker permits.  

Access to schooling is further hampered without documents. The Congolese boy interviewed expressed a desire to complete his schooling, but believed it was impossible without a Section 22 permit or other identity document. NGOs such as the Jesuit Refugee Service (JRS) provide certain assistance, such as school fees, only to children with a permit issued by DHA.

Yet even where a child is in possession of an asylum seeker or refugee permit, this is no guarantee that the child will be able to attend school. A 2003 study commissioned by UNHCR found that about twenty-five percent of children of respondents were denied access to education because the schools did not accept the asylum seeker or refugee permits.²¹² The Department of Education is formally responsible for ensuring that all children, regardless of nationality, gain access to a basic education. However, Department of Education officials are not necessarily familiar with the official documentation that DHA develops for refugee and asylum-seeking children. The failure to provide primary education to refugee children on a par with South African nationals is a violation of their rights as children, in addition to their rights as refugees under the Refugee Convention and domestic South African law.²¹³

According to NGOs dealing with refugee and asylum matters, shelters for children in need of care are reluctant to admit refugee and asylum-seeking children due to lack of identification and because family reunification is not easily realizable.²¹⁴ There appears to be no structured system on tracing family members of unaccompanied children for the purposes of reunification.²¹⁵ Yet, an official at DHA told a Human Rights Watch researcher that in the case of an unaccompanied child UNHCR would be informed in order to trace family members of the child.²¹⁶

Furthermore, a child is often unable to obtain government assistance when his or her guardian or caregiver is an also an asylum seeker, due to administrative blockages. In the words of the guardian, also an asylum seeker, of the Congolese boy mentioned above:

The JRS sent me and the boy to the Department of Social Development for assistance. After the first unsuccessful placement at a shelter for children in need of care, we returned to the social worker. She told me that [the department] does not have a place for the child. She suggested that the child be returned to the Democratic Republic of Congo. The boy is receiving a food parcel from JRS each month.²¹⁷

The Department of Social Development cannot process state financial support applications by persons with temporary status, as the computer system in use at the time of writing will only recognize the thirteen-digit numbers contained in the standard South African identification document. The deputy director for immigration at DHA told Human Rights Watch that DHA began issuing refugee children with certificates for social grants as early as May 2004.²¹⁸ While the certificates address the needs of a child who is a recognized refugee, they do not address the situation of a child whose status has yet to be determined. Further, as of August 2005, legislation regarding the rights of children (the Children’s Bill) was under review in the South African parliament.²¹⁹ One of the proposed amendments in the bill includes formal recognition of the right of refugee children, including asylum-seeking children, to social services.

Until passage of the Children’s Bill, however, the evident failure by the Departments of Home Affairs and Social Development to protect the rights of all refugee and asylum-seeking children adequately underlines fundamental flaws in policy and administration. The inability of the Department of Social Development to take refugee asylum-seeking children within its purview of responsibility means that these children are denied rights and benefits to which they are entitled.

Social Assistance for refugees and asylum seekers in Johannesburg

“Assistance is a big lacuna [in the government system]. Without [social] assistance, protection becomes less useful…What is a paper with an empty stomach?”
- UNHCR, Pretoria, February 18, 2005

Legal standards 

Beyond the problems associated with access to refugee status determination procedures and the inadequate protection such individuals often receive, refugees and asylum seekers in South Africa also have difficulties gaining access to work, education, basic health care services, public relief and assistance, education beyond the primary levels, housing, and permission to practice their professions.

The ability of refugees and asylum seekers to secure such social and economic rights is particularly complex in countries like South Africa that face challenges in providing these rights to their own nationals. The insecure legal status of asylum seekers (and occasionally, due to administrative failures, of refugees), the lack of recognition of refugee and asylum seeker documentation by some of those charged with granting access to benefits and rights, as well as racial or ethnic discrimination and xenophobia, place this group in an especially vulnerable position. As an asylum seeker told Human Rights Watch, “They [South Africans] call us chakarumbas [a local derogatory term referring to other African nationals].”²²⁰

Moreover, unlike many poor nationals, refugees and asylum seekers often continue to experience the effects of the trauma of their flight from countries of origin. They may suffer from language barriers and are often without any supportive family or social networks. UNHCR has recognized these specific vulnerabilities and recommends that refugees and asylum seekers be dealt with within a framework that understands their “particular difficulties.”²²¹

South African and international law recognize that asylum seekers are entitled to a limited range of social and economic rights. Once their status is recognized, refugees are entitled to a wider range of such rights in accordance with the South African Refugees Act and the Refugee Convention. With regard to asylum-seekers, section 22 of the Refugees Act grants individuals (adults and children) in possession of the asylum seeker permit the right to work and study. Though not binding law, UNHCR’s ExCom, in recognizing an obligation on states to safeguard the welfare of the asylum seekers, explicitly concludes that, “asylum seekers should have access to the appropriate governmental and non-governmental entities when they require assistance so that their basic support needs including food, clothing, accommodation, and medical care, as well as respect for their privacy, are met.”²²²

Once they have been recognized as such, all refugees in South Africa are entitled to the right to seek employment and to the same basic health services and primary education that inhabitants of South Africa receive.²²³ In accordance with South Africa’s obligations under the 1951 Refugee Convention, recognized refugees must also have access comparable to other foreign nationals to public relief and social security.²²⁴

In sum, under South Africa’s domestic and international legal framework the minimum social and economic rights that must be afforded to asylum seekers and refugees are the following:

• Asylum seekers in possession of a valid permit must enjoy the rights to work and study.²²⁵
• Recognized refugees (who are by definition lawfully present in South Africa) must enjoy the right to work and must enjoy the right to basic health services and basic primary education on a par with other South African inhabitants;²²⁶
• Recognized refugees must also enjoy the same rights as nationals to public relief and social security;²²⁷
• Recognized refugees must also enjoy the same access as other lawfully present non-citizens in South Africa to education beyond the primary levels, to housing, and to practice their professions.²²⁸ 

Despite the legal recognition of these rights, the government of South Africa is failing to meet them. Instead, NGOs, with limited resources, try to meet the basic needs of refugees and asylum seekers who approach them for assistance. While poor conditions are not unique to this category of non-nationals, they are exacerbated particularly for asylum seekers because of their uncertain legal status and fragmented welfare support networks.

The right to work

According to Human Rights Watch interviews, as well as a survey commissioned by UNHCR and published in November 2003, the temporary nature of the asylum seeker permit and the lack of a generally accepted identity document (that is, the green South African identity document for citizens and permanent residents) pose a barrier for both refugees and asylum seekers in enjoying the right to work.²²⁹ As noted above, this right is recognized for both asylum seekers and refugees under international and South African domestic law. The non-compliance by some DHA officials in lifting the employment prohibition on asylum seeker permits is a further obstacle to asylum seekers accessing employment.

A number of refugees and asylum seekers must work in the informal sector to survive.  JRS if this is first reference a local NGO, attempts to assist refugees and asylum seekers to become self-sufficient by giving them loans to start small businesses. In most instances, these businesses involve selling foodstuffs from a makeshift stall comprising a folding table. However, local law-enforcement authorities, namely the Johannesburg Metropolitan Police Department, are on a campaign to clear Johannesburg’s streets of informal traders. Many NGOs interviewed by Human Rights Watch are concerned that local authorities are confiscating goods which refugees and asylum seekers are unable to reclaim because they cannot pay the penalty fee. This, in turn, has an adverse effect on their ability to secure a livelihood.²³⁰As an asylum seeker from Burundi explains:

I was selling sweets at my stall on the corner of Noord and Klein Street, when my goods were confiscated by the police. They told me I am not supposed to sell there. I must now pay R 315 [U.S. $52.50] to have my goods released. I do not have this money.²³¹

UNHCR has, in the past, directly supported small income-generating projects for refugees. The initial project was considered a failure due to insufficient training of the refugees and lack of equipment. The agency is, however, at the time of writing, considering whether to begin a new livelihoods project, focusing on vocational training and ensuring that the refugees involved have better equipment from the early stages of the project.²³²

Access to housing

“You will find that the shelters are ‘full’, even if there is space…you do not know what to do [next].”
– Jesuit Refugee Services, August 30, 2004.

From interviews conducted by Human Rights Watch, the lack of adequate accommodation is the single most common concern for asylum seekers and refugees in Johannesburg. Lack of sufficient housing results in displacement, overcrowding, and ghettoization of specific nationalities.

With regard to asylum seekers, some new arrivals to South Africa initially live on the streets or at churches until they can find more permanent accommodation.²³³ Unaccompanied children seeking asylum are in a particularly vulnerable position when finding shelter. The high cost of rentals in the city force people to share rooms or flats to minimize costs, and this results in severe overcrowding and squalid conditions.²³⁴

It is especially difficult for asylum-seeking families newly arrived in South Africa to find accommodation. A Congolese woman who at the time of the interview had been in South Africa for approximately two weeks told Human Rights Watch:

I arrived in Johannesburg with my husband, two children and a four-month-old baby on August 14, 2004. We did not know where to stay and we had no money. We slept in the same truck that has brought us to Johannesburg. The truck driver took us to the JRS offices on the following Monday where he told us we could receive assistance. After explaining our problem to them, we were told that they would have to separate my husband from us. This is because they did not have accommodation for married couples with families. I had no choice but to understand.²³⁵

NGOs that serve refugees and asylum seekers (in some cases the implementing agents for UNHCR) provide temporary shelter for some newly arriving asylum seekers, though large numbers of new arrivals combined with insufficient space and resources limit the total numbers that can be accommodated. Given this reality, UNHCR has set up a system for ranking individual cases in most urgent need of assistance—unaccompanied minors and women with children, for instance (see below). The agency uses a network of social workers deployed from NGOs to determine need.²³⁶

Women and children recently arrived in South Africa appear to have greater access to accommodation, albeit temporary, than their single male counterparts. In Johannesburg, for example, Bienvenu shelter offers temporary accommodation for up to six months for refugee and asylum-seeking women and children. This shelter, run by JRS, housed seventeen women in August 2004; fifty-four people total including their children. JRS also runs a shelter for unaccompanied children, accepting not more than fifteen at a time. The children stay until they complete schooling.²³⁷ There is no specific accommodation for newly arrived male asylum seekers.

Once asylum seekers leave this temporary accommodation, they are forced to find housing on their own. No agency exists to assist them. Women at a temporary shelter for women and children told Human Rights Watch that they did not know where they would go once they are required to vacate the shelter. One said, “I was told that Yeoville is a good place,” but she did not know where the neighborhood was located.²³⁸ According to JRS, a number of refugees and asylum seekers live in inner city neighborhoods of Johannesburg city, namely Berea, Yeoville, Doornfontein, and Hillbrow.

Accommodation may also be sought from traditional establishments that provide shelter predominantly for homeless South African nationals. However, according to NGOs, these shelters sometimes decline to admit asylum seekers or refugees even if there is space available.²³⁹ This is particularly problematic from a legal perspective with regard to refugees, who have a right under international refugee law to housing subsidized or provided by the government on a par with other lawfully present non-citizens.²⁴⁰ This reluctance is in part due to cost, as well as concerns on the part of such shelters about attracting police raids that tend to occur wherever large numbers of non-nationals are thought to congregate. Further, most such shelters receive financial support grants based on the number of persons they are accommodating. Since refugees and asylum seekers are unable to obtain government grants, the shelters cannot reclaim expenses for them, and therefore will not receive as much funding as they would were they to be filled with South African nationals. Policies that result in less beneficial treatment to recognized refugees with regard to housing not only violate South Africa’s obligations under the Refugee Convention, they also contravene recent constitutional jurisprudence in South Africa finding that distinctions should not be made between lawful permanent residents (who are akin in many ways to recognized refugees), and South African citizens.²⁴¹

Shelters predominantly for South Africans charge daily rates of between R 3 (U.S. $0.50) and R 10 (U.S. $1.67).²⁴² In most cases, these are overnight shelters where lodgers have to vacate the premises during the day. Also, there is a limited period for which a lodger can stay—normally three months.

Access to health care and medical treatment

Refugees and asylum seekers also experience difficulties in access to health care and medical treatment for chronic diseases including HIV and AIDS in South Africa, particularly in the state hospitals. Access is often hindered owing to poverty, language barriers, and the failure of hospital staff to recognize refugee or asylum seeker documentation. In the words of a Congolese asylum seeker who was yet to be issued with an asylum seeker permit: “I cannot go anywhere if I am sick. I went to Hillbrow hospital in March 2004. They did not take me in because I did not have a permit.”²⁴³

The state hospitals require a fee and generally ask for national identification documents in order to receive medical attention and treatment. Clinics, on the other hand, provide free medical attention or primary health care.²⁴⁴

Johannesburg General Hospital—the closest hospital to many neighborhoods in which non-nationals live—instituted a policy of levying a fee of R 1,800 (U.S. $300) for medical attention for non-nationals. The hospital instituted the fee because of resource pressures, in part caused by the large number of non-nationals seeking services there. However, the fee affects refugees and asylum seekers more than other immigrants, as they generally have fewer alternative options.²⁴⁵ An asylum seeker from Burundi told a Human Rights Watch: “Once my baby was sick, I went to JHB General Hospital. They told me they cannot help me unless I pay R 1,800.”²⁴⁶

Several NGOs have engaged public health care officials to ensure that health care is accessible to all migrants, refugees and asylum seekers, at all state hospitals. In response, the Gauteng Department of Health issued a circular in May 2004 that allows the following categories of non-nationals to receive medical treatment at public hospitals in the province:

• An immigrant permanently resident in the Republic of South Africa, but who has not attained citizenship;
• A foreigner with a temporary residence or work permit, and
• A citizen of a member country of the Southern African Development Community namely Angola, Botswana, Democratic Republic of the Congo, Lesotho, Malawi, Mauritius, Mozambique, Namibia, Seychelles, Swaziland, Tanzania, Zambia and Zimbabwe, who enters the Republic of South Africa illegally.²⁴⁷

As asylum seeker and refugee status permits are by law temporary residence permits,²⁴⁸ this circular should allow access to health care for both groups. Moreover, under South Africa’s Refugees Act, recognized refugees should enjoy access to basic health services on a par with other South Africans.