South Africa's Obligations under International Human Rights Law(1)

All persons in South Africa share a certain set of basic human rights under international law, regardless of their immigration status. Refugees have, in addition, rights based on international refugee law and the principle that persons should not be returned to a country where they fear persecution on the grounds of race, religion, nationality, membership of a particular social group, or political opinion, or which they were compelled to leave owing to external aggression, occupation, foreign domination or events seriously disturbing public order. The following section first sets out the international law relating to the rights of all persons in South Africa, and then describes the particular entitlements of refugees.

The Rights of All Persons, Citizens and Non-Citizens

International human rights law in general places obligations on states in relation to all people, not only citizens. The Universal Declaration of Human Rights (UDHR),(2) the International Covenant on Civil and Political Rights (ICCPR),(3) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)(4)--together known as the "international bill of human rights" because they form the foundation of international human rights law--confer the great majority of the rights they enumerate to "everyone." The rights that have more restricted application are those that relate directly to citizenship: in particular the right to take part in the conduct of public affairs, to vote, to stand for office, and to have equal access to public service, as well as the right of people to return to their "own" country. The UDHR, the ICCPR, and the ICESCR all enjoin states to respect and ensure the rights they set out to all the individuals within their territory without discrimination, except where the rights are expressly qualified.(5) Accordingly, although international human rights law recognizes the right of states to control their borders and to restrict entry within their territory, the fact that a person has entered a country illegally does not affect his or her rights to life, security of the person, equality before the law, or other basic civil and political rights.

The Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948, is not a treaty to which states can become parties, but it is a statement by the international community of the minimum standards of state practice and is also regarded as an articulation of states' human rights obligations as parties to the Charter of the United Nations.(6) South Africa has not ratified either the ICCPR or ICESCR, which are treaties placing explicit and detailed obligations on parties to them, though it signed both in 1994 and is therefore considered obliged not to act against the spirit and purpose of the covenants pending ratification. Moreover, many of the rights contained in these treaties and set out in the UDHR are considered to have become part of customary international law, by which South Africa is bound simply as a member of the community of states. South Africa's constitution recognizes the importance of adhering to principles of international law, stating that "customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament."(7)

Another declaration of the U.N. General Assembly, the 1985 Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live(8)--like the UDHR not a treaty but a statement setting out standards of practice by states--reinforces the universal application of the great majority of rights. It provides explicitly that "aliens," defined as individuals who are not nationals of the states in which they are present, shall enjoy the rights to life and security of the person; to be equal before the courts; to freedom of expression and assembly; and to freedom from torture or cruel, inhuman and degrading treatment or punishment.(9) These and other rights are repeated in a "general comment" relating to the position of undocumented migrants under the ICCPR adopted by the Human Rights Committee.(10)

South Africa is party to the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW) and to the Convention on the Rights of the Child, both of which it ratified in 1995.(11) Again, CEDAW and the Convention on the Rights of the Child make no distinction between citizens and non-citizens in the rights they establish. CEDAW also provides explicitly that women and men shall have "equal rights to acquire, change or retain their nationality," and also equal rights with respect to the nationality of their children.(12)

The Rights of Detainees Generally

All those held in detention, whether nationals, non-nationals, asylum-seekers or refugees, criminally accused or convicted, should be held in conformity with the various U.N. documents setting out guidelines for minimum standards of state practice, including the Standard Minimum Rules for the Treatment of Prisoners,(13) the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,(14) the Basic Principles for the Treatment of Prisoners,(15) and the Rules for the Protection of Juveniles Deprived of their Liberty.(16) These instruments provide a set of standards that are broadly in agreement with each other. For example, the Body of Principles stipulates that any detention must be "ordered by, or subject to the effective control of, a judicial or other authority," and detainees must be given "an effective opportunity to be heard promptly by a judicial or other authority"; detainees must be informed of the reason for their arrest and detention and of their rights; and they have the right to assistance of legal counsel, to be paid for by the state "where the interests of justice so require."(17) Many of these provisions are repeated in South Africa's own constitution.

The Rights of Deportees

Article 13 of the ICCPR provides that "An alien lawfully present in the territory of a State Party ... may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and to be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority." The U.N. Human Rights Committee, which monitors compliance by states Parties to the ICCPR, clarified the position of migrants under the covenant by stating that, while the article refers to migrants lawfully present in a country, the purpose of Article 13 is "clearly to prevent arbitrary expulsions." Therefore, "if the legality of an alien's entry or stay is in dispute, any decision on this point leading to his expulsion or deportation ought to be taken in accordance with article 13.... An alien must be given full facilities for pursuing his remedy against expulsion so that this right will in all the circumstances of his case be an effective one."(18)

The Rights of Migrant Workers

Although it has not yet come into force, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families,(19) which brings together and adds to provisions already contained in a number of treaties of the International Labor Organization (ILO), provides a useful standard on the protection of the rights of migrant workers.(20) The convention defines a migrant worker as "a person who is to be engaged, is engaged or has been engaged in remunerated activity in a state of which he or she is not a national,"(21) whether or not the work is carried out under the correct legal documentation; the definition is thus wider than that usually understood in the South Africa context, where the term generally refers only to those who have come under the terms of bilateral agreements with neighboring countries, especially to work in the mines, and not to skilled workers entering the country under individual contracts. The convention explicitly confers upon both "documented" and "undocumented" migrant workers many of the rights that are already established by the International Covenant on Civil and Political Rights, and adds certain protections particularly relevant to migrants.(22)

The rights conferred on all (documented and undocumented) migrant workers include provisions that migrants and their families detained for immigration offenses must be held separately from the criminally accused or convicted; that passports may not in any circumstances be destroyed, and that identity documents, work permits and other official documentation may only be confiscated or destroyed by public officials authorized to do so by law; that migrants and their families may not be collectively expelled, but each case should be considered individually; that migrants and their families shall enjoy treatment not less favorable than that which applies to nationals in respect of remuneration and conditions of work and shall be entitled to emergency medical treatment; and that the children of migrant workers have the right to a name, registration of birth, a nationality and access to education on the basis of equality of treatment with nationals of the state concerned.(23) Documented migrant workers have certain additional rights, including the right to equality of treatment with nationals in respect of access to educational institutions, housing, social and health services, and to repatriate their earnings.(24)

Reduction of Statelessness

Both the ICCPR and the Convention on the Rights of the Child provide that every child has "the right to acquire a nationality."(25) Similarly, the Convention on the Reduction of Statelessness(26) provides that a State Party to the convention "shall grant its nationality to a person born in its territory who would otherwise be stateless" and to others born in the territory of another State Party who are unable to acquire the nationality of the state in which they were born for reasons of age or residence qualifications, if one the parents was a national of the state whose nationality is sought at the time of birth.(27) The Convention on the Status of Stateless Persons(28) guarantees certain rights for stateless people. South Africa is not a party to either of the specific conventions on statelessness, but has signed the ICCPR and is a party to the Convention on the Rights of the Child. The obligation to reduce statelessness, and in particular to ensure that children have a nationality, is of particular concern in South Africa in two respects: the status of the children of Mozambican parents born in South Africa, and the defects in the system for registering births, especially in many rural areas.

The Rights of Asylum-Seekers and Refugees

The two most important documents establishing the rights of asylum-seekers and refugees in South Africa are the 1951 U.N. Convention Relating to the Status of Refugees(29) and the 1969 Organization of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa.(30) South Africa acceded to the U.N. Convention and its 1967 protocol on January 12, 1996, and to the OAU Convention in 1995. The two conventions provide definitions of the term "refugee" and set out the principal rights of refugees in the host country, which in a number of respects are explicitly stated to be the same as those of nationals in that country. In addition, the office of the U.N. High Commissioner for Refugees (UNHCR) has published a Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on the Detention of Asylum Seekers, which are not binding on states but are considered by UNHCR to be minimum standards of state practice. The Executive Committee (ExCom) of UNHCR(31) also adopts "conclusions" from time to time, which establish further guidelines on acceptable practice.

The Definition of a Refugee

South Africa currently does not have any legislation covering the procedure for obtaining refugee status in place. Under the Basic Agreement reached between the South African government and UNHCR in 1993, South Africa agreed to abide by the definitions contained in the U.N. 1951 Convention and the 1969 OAU Convention in determining refugee status.(32) Under the U.N. Convention, a refugee is defined as,

any person who ... owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.(33)

The definition of refugee under the OAU Convention includes this description, but widens it by adding,

The term "refugee" shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.(34)

An asylum-seeker is an individual who has entered a country with or without the legally required documentation, who seeks to obtain refugee status, and whose status has not yet been determined. The term is considered by UNHCR to include individuals whose application for refugee status has been rejected, where the rejection is on "purely formal grounds" (for example, when the receiving government decides that the individual can seek asylum in a safe third country); or on substantive grounds that UNHCR would not consider sufficient; or following a process for determination of refugee status that is not procedurally fair.(35) Asylum-seekers should be considered to have the same rights as refugees, until such time as it is fairly determined that they do not have refugee status.

The Right of Non-Refoulement

The central right of a refugee is not to be returned to a country in which he or she would be in danger on account of one of the grounds mentioned in the refugee conventions; this is known as the right of non-refoulement. The Universal Declaration of Human Rights provides in article 14(1) that "Everyone has the right to seek and to enjoy in other countries asylum from persecution." Article 33(1) of the 1951 U.N. Convention strengthens this provision by stating that:

No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his or her life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.(36)

Similarly, the 1969 OAU Convention provides that "No person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened"; and that "The essentially voluntary nature of repatriation shall be respected in all cases and no refugee shall be repatriated against his will."(37) Article 3(1) of the 1951 U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment(38) also stipulates that the prohibition on refoulement applies to situations in which there are "substantial grounds" for believing that a person (whether or not a refugee) would be subjected to torture if returned to his or her country.

Procedures for Determining Refugee Status

In order to ensure that the right of non-refoulement is respected, it is essential that any person who faces return by the receiving government be able to challenge that decision and assert a claim for protection as a refugee in a procedurally fair hearing. UNHCR recognizes that,

an applicant for refugee status is normally in a particularly vulnerable situation. He finds himself in an alien environment and may experience serious difficulties, technical and psychological, in submitting his case to the authorities of a foreign country, often in a language not his own. His application should therefore be examined within the framework of specially established procedures by qualified personnel having the necessary knowledge and expertise, and an understanding of an applicants particular difficulties and needs.(39)

Accordingly, the UNHCR ExCom has made recommendations, repeated in the Handbook on Procedures, that states follow certain basic requirements in establishing their procedures:

i. The competent official (e.g., immigration officer or border police officer) to whom the applicant addresses himself at the border or in the territory of a Contracting State should have clear instructions for dealing with cases which might come within the purview of the relevant international instruments. He should be required to act in accordance with the principle of non-refoulement and to refer such cases to a higher authority.

ii. The applicant should receive the necessary guidance as to the procedure to be followed.

iii. There should be a clearly identified authority--wherever possible a single central authority--with responsibility for examining requests for refugee status and taking a decision in the first instance.

iv. The applicant should be given the necessary facilities, including the services of a competent interpreter, for submitting his case to the authorities concerned. Applicants should also be given the opportunity, of which they should be duly informed, to contact a representative of UNHCR.

v. If the applicant is recognized as a refugee, he should be informed accordingly and issued with documentation certifying his refugee status.

vi. If the applicant is not recognized, he should be given a reasonable time to appeal for a formal reconsideration of the decision, either to the same or to a different authority, whether administrative or judicial, according to the prevailing system.

vii. The applicant should be permitted to remain in the country pending a decision on his initial request by the competent authority referred to in paragraph (iii) above, unless it has been established by that authority that his request is clearly abusive. He should also be permitted to remain in the country while an appeal to a higher administrative authority or to the courts is pending. The competent official (e.g., immigration officer or border police officer to whom the applicant addresses himself at the border or in the territory of a Contracting State) should have clear instructions for dealing with cases which might come within the purview of the relevant international instruments. He should be required to act in accordance with the principle of non-refoulement and to refer such cases to a higher authority.(40)

The Handbook on Procedures also sets out detailed guidelines on evaluating the substance of refugee claims, including guidance on interpretation of the key phrases contained within the 1951 U.N. Convention.

Other Rights of Refugees

Aside from the right to non-refoulement, refugees have the rights of all non-citizens--which in most cases are the same as those of citizens. In addition, the 1951 U.N. Convention specifically obliges states parties to grant refugees either the same treatment as nationals of that state or, as a minimum, "the most favourable treatment accorded to nationals of a foreign country in the same circumstances" in respect of a variety of different rights. For example, refugees shall enjoy the same treatment as nationals in matters relating to access to the courts (including access to legal assistance), labor protection, public assistance, and with respect to elementary education.(41) They have the right to the same treatment as other migrants generally in respect of seeking gainful employment, access to housing or higher education. The 1969 OAU Convention is less specific, but does commit member states to "use their best endeavours ... to receive refugees and to secure the settlement of those refugees who, for well-founded reasons, are unable or unwilling to return to their country of origin or nationality."(42) Both conventions state that their provisions shall be applied without discrimination.(43)

Neither the U.N. nor the OAU refugee convention incorporate the principle of family unity into the definition of the term refugee. However, the Final Act of the U.N. Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons which adopted the 1951 U.N. Convention states that the conference "Recommends Governments to take the necessary measures for the protection of the refugee's family, especially with a view to: (1) Ensuring that the unity of the refugee's family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country, (2) The protection of refugees who are minors, in particular unaccompanied children and girls, with special reference to guardianship and adoption."

Detention of Asylum-Seekers and Refugees

Undocumented migrants in many countries are frequently detained pending deportation simply as a consequence of their illegal status. In the case of refugees, Article 31 of the 1951 U.N. Convention specifically provides that "States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened ... enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence." Furthermore, such refugees shall only be subject to restrictions of movement which are "necessary" and only until their status is regularized or until they obtain admission to another country.

The terms "coming directly," "without delay," and "good cause" should be interpreted restrictively, in favor of the asylum-seeker. The travaux préparatoires of the convention (the documents prepared in the course of its drafting) make clear that the term "coming directly" was introduced not to exclude those who had simply passed through another country in coming to the state where they applied for asylum, but only those who had "settled temporarily" in one country before entering another. Similarly, the UNHCR Guidelines on the Detention of Asylum Seekers note that "Given the special situation of a refugee, in particular the frequent fear of authorities, language problems, lack of information and general insecurity, and the fact that these and other circumstances may vary enormously from one refugee to another, there is no time limit which can be mechanistically applied associated with the term 'without delay.' ... Along with the term 'good cause' ... it must take into account all of the circumstances under which the asylum seeker fled."(44)

In accordance with article 31, the Guidelines state that "as a general rule asylum seekers should not be detained." Guideline 3 provides that:

The permissible exceptions to the general rule that detention should normally be avoided must be prescribed by law. In such cases, detention of asylum seekers may only be resorted to, if necessary, in order:

i. to verify identity;

ii. to determine the elements on which the claim to refugee status or asylum is based;

iii. to deal with cases where refugees or asylum-seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum; or

iv. to protect national security or public order.

Where detention of asylum-seekers is considered necessary it should only be imposed where it is reasonable to do so and without discrimination. It should be proportional to the ends to be achieved (i.e. to ensure one of the above purposes) and for a minimal period.(45)

Guideline 4 enumerates minimum procedural safeguards for asylum-seekers in detention, including the right to be informed of the reasons for detention; the right to challenge the lawfulness of the deprivation of liberty "before a competent, independent and impartial authority, where the individual may present his arguments either personally or through a representative"; the right to contact the local UNHCR office, other agencies, and a lawyer, and the means to make such contact.

Guideline 5 relates to the detention of children and stipulates that "minors who are asylum seekers should not be detained." If, despite this rule, children are detained, it should be "as a measure of last resort, for the shortest appropriate period of time and in accordance with the exceptions stated at Guideline 3." The guidelines refer to the Convention on the Rights of the Child, especially article 22, which provides that special measures of protection should be given to refugee children and asylum-seekers who are minors, whether accompanied or not. Children who are asylum-seekers must not be held under prison-like conditions: all efforts must be made to have them released from detention and placed in other accommodation; or, if this proves impossible, special arrangements must be made for living quarters which are suitable for children and their families. During detention, children have the right to education, preferably outside the detention premises. In addition, unaccompanied minors should have a legal guardian appointed responsible for ensuring that their interests are protected; Human Rights Watch believes that as soon as they are apprehended they should be placed in the care of the child welfare authorities, and kept out of the system applied to adult asylum-seekers.

Guideline 6 relates to conditions of detention generally and provides that "conditions of detention for asylum seekers should be humane with respect for the inherent dignity of the person," and that they should be "prescribed by law." Specifically, detainees should have the right to contact and receive visits from friends, relatives and legal counsel, the possibility to receive appropriate medical treatment and to conduct some form of physical exercise, and the possibility to continue further education or vocational training. Asylum-seekers should be held separately from those convicted of a criminal offence; in general men and women should be segregated, and children should be held apart from adults who are not their relatives. Additionally, Human Rights Watch believes that asylum-seekers in detention, who are not accused of any crime, should be segregated from those detained as a result of being accused of a criminal offence.

In summary: the language of the Guidelines indicates that in the case of asylum-seekers the detaining authority is under an obligation to show why measures short of detention are not sufficient and, even where that is the case, to detain for the shortest time necessary and in conditions consonant with human dignity.

Domestic Obligations

Constitutional Obligations

Like the international instruments, South Africa's own constitution also draws no distinction between non-citizens and citizens for most of the rights guaranteed in the bill of rights. Only the right to enter the country, to obtain a passport, to vote, to stand for office, to form a political party and other political rights are limited to citizens.(46) The South African Constitution guarantees and protects most internationally recognized human rights, and places upon the state an obligation to "respect, protect, promote and fulfil the rights in the Bill of Rights."(47) The South African Bill of Rights is considered binding on "the legislature, the executive, the judiciary and all organs of the state," and applies to all laws.(48)

A fundamental concept the South African Bill of Rights is the right to human dignity: "Everyone has inherent dignity and the right to have their dignity respected and protected."(49) The importance of this right in the South African context flows out of its particular history, in which the apartheid state daily violated the dignity of the majority black population through segregation, arbitrary detention, and various forms of abusive policies.(50) The right to freedom and security of the person is also protected by the bill of rights, in particular the right "not to be deprived of freedom arbitrarily or without just cause," the right "not to be detained without trial," the right "to be free from all forms of violence from both public and private sources," the right "not to be tortured in any way," and the right "not to be treated or punished in a cruel, inhuman or degrading way."(51) In the view of Human Rights Watch, these provisions clearly place limitations on the manner in which all persons--including non-citizens--are to be treated by the various agencies involved in migrants control. In addition, the right "to be free from violence from both public and private sources" places a positive obligation on the security forces to take all possible steps to protect all persons from vigilante violence.

The South African Bill of Rights recognizes the right to just administrative action. This right includes the right to "administrative action which is lawful, reasonable and procedurally fair," the right to be given written reasons for an administrative decision which adversely affects one's rights, and the right to review of administrative action by a court or an independent tribunal.(52) As these administrative rights apply to "everyone," the South African state must respect these rights in the administration of its migration control and asylum determination systems.

A number of specific rights apply to persons in detention. Any person who is detained has a right to be informed promptly of the reason for his or her detention, to choose and consult with a legal practitioner and to have a legal practitioner assigned at the expense of the state "if substantial injustice would otherwise result" (and to be informed promptly of this right), the right to challenge the lawfulness of the detention before a court, "to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material, and medical treatment," and the right to be visited by one's spouse or partner, next of kin, religious counselor of choice, and medical practitioner of choice.(53)

In addition, the South African Bill of Rights recognizes a number of other rights relevant to the protection of migrants: the right to equality before the law and the equal protection and benefit of the law;(54) the right to life;(55) an absolute prohibition on slavery, servitude, and forced labor;(56) the right to privacy;(57) the right to freedom of conscience, religion, thought, belief and opinion;(58) freedom of expression;(59) freedom of assembly and peaceful demonstration;(60) freedom of association;(61) the right of access to "any information held by the state,"(62) and the right not to be deprived of property except in terms of a law of general application.(63)

Another area of the South African Bill of Rights which may have an impact on the rights of migrants in South Africa is its enumeration of socio-economic rights, which also apply to all persons, not just citizens. The bill of rights recognizes a number of socio-economic rights such as the right to a safe environment,(64) to adequate housing,(65) to health care, sufficient food and water and social security,(66) to education,(67) and the right to use one's own language and to participate in the cultural life of their choice.(68) A number of rights specific to children are also entrenched in the Bill of Rights.(69) The socio-economic rights are at times subject to a progressive implementation, meaning that their implementation depends on available state funds (although implementation must take place in a non-discriminatory fashion) and their exact content, as well as their application to migrants, remains to be determined.

Since the South African constitution was only adopted in late 1996, many of the rights contained in the visionary document have not yet been interpreted by a court of law, let alone by the authoritative Constitutional Court, the highest court in South Africa. Only a single decision which deals with the rights of non-citizens has been handed down by the Constitutional Court so far.(70) In Larbi-Odam and Others v. The Member of the Executive Council for Education (North West Province) and Another, the Constitutional Court struck down a provincial law which prohibited foreign citizens from being permanently employed as teachers in state schools.(71) The unanimous judgment found that non-citizens were protected by the bill of rights' non-discrimination clause, and that all employment opportunities--with the limited exception of politically sensitive positions--should be available to permanent residents and South African citizens on an equal basis. It appears that the Constitutional Court's judgment reaffirms the general proposition that all rights contained in the bill of rights, with the exception of those specifically limited to citizens, provide protection to non-South Africans as well as South Africans. Thus, the treatment of undocumented migrants, asylum-seekers, refugees and other migrants in South Africa should be viewed in light of the protections provided by the constitution's bill of rights as well as against international standards. This interpretation is consistent with the preamble of the constitution, which envisions a "society based on democratic values, social justice and fundamental human rights."(72)

The Aliens Control Act

The central piece of immigration legislation in South Africa is the Aliens Control Act,(73) which has been referred to by commentators as a "draconian apartheid throwback" and "apartheid's last act."(74) The Aliens Control Act has deeply racist and anti-semitic roots in the apartheid era, and its previous versions were used during the apartheid period to exclude as "undesirables" such group as Jews, Indians, Africans and other non-whites. Under the apartheid version of migrants control, it was virtually impossible to permanently immigrate to South Africa as a non-white person, while desirable whites were welcomed:

Immigrants were, by definition, white. The government distinguished between desirable and undesirable whites in formulating its policies. There was no immigration policy for Africans from outside the country. Africans were migrants and they had to return home when they were no longer of use to South African employers.(75)

The Aliens Control Act (ACA), passed in 1991, is a consolidation of a number of earlier statutes, and has itself been amended several times since it was passed. Most recently, the ACA was amended in several major aspects by the Aliens Control Amendment Act of 1995,(76) which principally came into effect on July 1, 1996. The ACA is complicated in structure and often difficult to follow, even by those who specialize in its interpretation. As a result, practice often does not comply with the procedures established by the ACA. Human Rights Watch found significant regional variance in the procedures and forms used by different government departments and even by different branches within a department. In order to place our findings in the appropriate legislative context, the following sections aim to summarize the main provisions of the ACA.

The Deportation Process

Prohibited Persons

As the name suggests, the Aliens Control Act is mostly concerned with control of immigration into South Africa. The central element of this system of control is the concept of a "prohibited person." A prohibited person--broadly anyone who has entered the country through other than proper channels(77) or who falls within one of a listed set of categories of undesirable types of people(78)--is liable to removal from the country and pending removal may be arrested and detained. Prior to entering the country, every person is required by the ACA to report to an immigration officer at a port of entry and satisfy the officer, who will conduct an examination under section 7 of the act, that he or she is not a prohibited person. If he or she fails to comply with these requirements or fails to satisfy the immigration officer that he or she is not a prohibited person, the immigration officer is supposed under section 9 of the act to declare that person a prohibited person and refuse them entry to the country.(79) Section 8 requires immigration officers, when they are satisfied that a person is not a prohibited person, to allow him or her to enter the Republic.

Legal Entry into the Country

The Aliens Control Act provides for three main ways for non-citizens to reside legally in the country: First, some non-South African citizens may be given permits to enter the country in the form of temporary residence permits under section 26, or immigration permits (formerly known as permanent residence permits) under section 25. Historically, these permits were restricted to white immigrants,(80) and they are now restricted largely to individuals bringing skills or money into the country, and their families. Secondly, there are citizens from neighboring countries, principally Mozambique, Botswana, Lesotho and Swaziland, who enter South Africa as contract workers on the basis of bilateral agreements with the governments of those states "in accordance with a scheme of recruitment and repatriation approved by the Minister of Home Affairs."(81) These persons, largely (black) mine workers, are exempt from being considered prohibited persons for the period of their employment.(82) The third exception is those persons who have applied for asylum or been granted refugee status. Since 1993, South Africa has recognized the right of individuals to apply for refugee status, but has used the ACA and its Basic Agreement with UNHCR rather than specific refugee legislation to regulate this: asylum applicants and refugees are either granted temporary permits to enter the country under section 41, or granted an exemption from the requirements of the act on grounds of "special circumstances" under section 29. The ad-hoc procedures for examining asylum applications are described below.

Non-citizens present in South Africa without either a temporary or permanent residence permit are required to report to an immigration officer, failing which they may be arrested without warrant and deported under a warrant issued by the minister.(83) Similarly, any person with a permit who overstays the permit or acts in conflict with the conditions placed on the issue of that permit is guilty of an offence and may be dealt with as a prohibited person.(84)

Identification of Prohibited Persons

The ACA is perhaps misnamed, since certain of its most control-oriented provisions apply to citizens as well as migrants, even though a citizen should not be declared a prohibited person according to the formal provisions of the act.(85) In particular, section 7 of the act allows an immigration officer to require any person to produce "documentary or other evidence relative to his claim to enter or be in the Republic." The immigration officer may exercise this power over persons reporting to him upon entry or over "any other person who in the opinion of such officer is not entitled to be in the Republic."(86)

In a similar fashion, section 53(1) provides that a person may be stopped either by an immigration officer or by a police officer "who suspects on reasonable grounds that a person is an alien."(87) A person stopped is required to produce documentary evidence in support of a claim to be in the Republic lawfully. If a person stopped fails to satisfy the officer that he or she is entitled to be in the Republic, the officer may take the person into custody and detain the person, pending further investigation of their status. Such a person is not declared a prohibited person, but if "it is established" that the person is not entitled to be in the Republic, he or she is guilty of an offence and can be removed.(88)


Sections 44 to 48 of the ACA provide for the removal of persons from South Africa. Most removals take place under section 44, which provides that an immigration officer may arrest without warrant, or cause to be arrested, a prohibited person found in the country, and shall "irrespective of whether such a person is arrested or not" remove or cause to be removed him or her under warrant from the minister. Pending removal, the immigration officer may order the person to be detained.(89) Removals of this type are known as "repatriations" by the Department of Home Affairs. Since many removed under this section are handled by the police or army rather than home affairs, accurate statistics for repatriations are hard to establish (see below). If, on the other hand, a person is to be removed as a result of committing an offense other than the offense of being in the country without authorization, or because his or her presence is deemed to be contrary to the public interest, then he or she is subject to what the department terms "deportation" rather than "repatriation."(90) In 1997, 851 persons were deported under deportation orders, after having been convicted of crimes in South Africa.(91) In most such cases, convicted criminals are deported after serving their sentences.

Detention of Deportees

Under the ACA, a person may be detained pending removal "in the manner and at the place determined by the Director-General" of Home Affairs,(92) although section 55 of the act, introduced in 1996, provides for certain restrictions on such detention. Currently, a suspected "prohibited person" found within South Africa and taken into custody may be detained for successive periods of forty-eight hours on the authority of an immigration officer, "for as long as may be reasonable and necessary,"(93) pending determination of his or her status. However, after the first forty-eight hours, the detainee should be informed in writing of the reasons for continued detention. The evidence gathered by Human Rights Watch suggests that this rarely happens. If an immigration officer decides that the person detained is in fact a prohibited person, he or she may be detained for an initial period of thirty days following the decision, pending removal.

Under the amendments to the ACA introduced in July 1996, detention must be reviewed after thirty days by a judge of the High Court, and may be renewed after review for successive periods of ninety days. However, as implemented by regulations passed under the act, these automatic judicial review procedures make provision only for written input by the detainee in reply to the immigration officer's reasons for detention and not for a hearing.(94) Moreover, despite the 1996 amendments to the act, there is no absolute maximum period of detention either before or after determination of status. Human Rights Watch found numerous cases were people had been kept in detention in excess of thirty days without judicial review.

Appeal and Review of Immigration Decisions and Detention

Where a person has been declared a prohibited person by an immigration officer under these procedures, there is no formal right of appeal to an independent tribunal,(95) although the act does include a provision that the immigration officer shall inform the individual of his or her right to request the minister, in writing and within three days, to review the declaration.(96) In practice, it seems that individuals are treated as prohibited persons without a "declaration" taking place. No cases are known in which the minister in fact has reviewed a decision that a person is a prohibited person. Deportees and immigration officers interviewed by Human Rights Watch were not aware of these procedures, while the Department of Home Affairs does not keep any statistics on the number of persons declared prohibited persons,(97) nor on the number of persons who take advantage of the provision allowing for review of a declaration.(98) The department has confirmed, for instance, that the 157,084 persons who were repatriated in 1995 were not legally eligible for ministerial review, and that ministerial review is also unavailable for those persons deported, for example as a result of having committed an offence other than an immigration offence or "in the public interest."(99) Indeed, the Department of Home Affairs apparently has no record of any person ever having been afforded an administrative hearing in relation to deportation or repatriation.

There is a possibility--albeit faint--of judicial review of decisions to remove a person from South Africa, that is to say of applying to the High Court for a judge to consider whether the decision was taken in accordance with the correct procedures under the relevant legislation and in accordance with the constitution.(100) In one instance where a deportee had not been informed of his right to request ministerial review of his position the individual concerned applied to the High Court for judicial review and the court used the non-compliance as part of its reasoning that the person concerned was not a "prohibited person" in terms of the Act.(101) However, the case was only heard after the presumed migrant had been in detention for over a year, an unusually long time to wait for removal, especially since procedures have been significantly speeded up in recent years. In practice, judicial review of a declaration that a person is a prohibited person (or of a decision to remove him or her, however made, since, as mentioned above, such declarations seem not to occur in practice) is unlikely to be widely available given the rapid timing of most removals and the financial circumstances of most persons subject to removal.

Detention under the ACA, like any other detention, has since the introduction of a bill of rights in 1994 also been subject to constitutional review by the High Court.(102) As detainees, both migrants and citizens detained under the ACA are protected by section 25(1) of the interim Constitution and by section 35 of the 1996 Constitution. Constitutionally guaranteed conditions of detention include the right to consult with a legal practitioner, to be detained under conditions consonant with human dignity and to visit with family members. It is not yet clear whether the provisions of the present section 55 of the ACA, providing for automatic review of detention by a judge after thirty days, will satisfy the constitutional requirements for judicial consideration of any detention. Some lawyers working with immigration matters argue that a reasonable initial period of detention should be fourteen days rather than thirty days.(103)

The ACA contains no explicit power for a magistrate to grant bail, such as exists in the case of individuals charged with a criminal offence other than an immigration offence (who, under the Criminal Procedure Act must be brought before a court within forty-eight hours of their arrest) and as a consequence the magistrates' courts do not understand themselves to have jurisdiction to order the release of a person detained in terms of the Aliens Control Act. In practice, there is no systematic after-hours bail procedure with respect to detention under immigration legislation.(104) On a practical level, attorneys find that "the only way to release people so detained is to arrange an interview with immigration officials from the Dept. of Home Affairs."(105) Often station commanders of police stations do not have access to Home Affairs computers to verify the identification of a detained person; nor do they have the discretion to release such a person.(106) Some police officers do not accept that migrants can get bail under any circumstances.(107)

In addition, the interaction of immigration legislation with the ordinary South African criminal justice system creates delays within the system. Migrants charged with crimes not involving immigration may be detained by immigration officers under the Aliens Control Act as well as by the police in the exercise of their ordinary criminal jurisdiction. A person may thus have two detention orders; one by the police and another by Home Affairs. Therefore, once the police are satisfied and willing to let the person go they still have to wait to get permission from Home Affairs.(108) In these circumstances, many magistrates are unwilling to grant bail in terms of the Criminal Procedure Act knowing that the person will remain in detention due to immigration status.

Even after the introduction of the amendments to the ACA providing for a maximum period of detention without judicial review of the detention, magistrates have read the new section 55(5) in a manner that effectively continues to oust their authority to review a detention. For instance, in Durban, a magistrate refused to grant bail to a person detained as a prohibited person under the amended Aliens Control Act, claiming that since Home Affairs had used the forms under the old version of the ACA, the ouster clause preventing the courts from inquiring into the validity of decisions made under the ACA (since repealed) was still binding upon the magistrates' courts.(109)

The Asylum Determination Process(110)

Processing of Asylum Applications

Although South Africa has since 1993 recognized the right to apply for asylum, is a party to the U.N. and OAU refugee conventions, and has in fact implemented a procedure for the recognition of refugee status, there is currently no legislation expressly regulating the asylum process. Instead, asylum-seekers are given temporary permits to remain under section 41 of the Aliens Control Act, while recognized refugees are exempted from the requirement to have a temporary or permanent residence permit, under section 28 of the Act.

The procedure for consideration of asylum applications is set out in internal documents of the Department of Home Affairs which have no statutory basis and, as a consequence, cannot be challenged in court or used as a basis for a court application. These procedures were largely developed following agreements concluded among South Africa, UNHCR and Mozambique in order to deal with the status of the estimated 350,000 Mozambicans who fled to South Africa during the course of the civil war in Mozambique.


According to the Department of Home Affairs' internal regulations, persons seeking refugee status must apply to the Department of Home Affairs as soon as they enter the country, or as soon as possible thereafter. The applicant is referred to the office of a Regional Subcommittee for Refugee Affairs where there are officials that have been trained by the Department and UNHCR to process applications for asylum. Persons are given a date for an appointment for a first interview with a standard form confirming this arrangement. No permits are granted at this stage (which means that an applicant is unable to work and may be vulnerable to arrest and detention by police who are unwilling to accept the standard form as sufficient documentation to indicate authorization to stay in the country) and the waiting period for an interview may be up to several months. According to Mr. Claude Schravesande, then-Director of Refugee Affairs,

Where a person is in detention in terms of an offence under the Act and this person subsequently applies for asylum, he or she will continue to be detained while their application is being considered. People are detained on an ad-hoc basis, and there is no specific facility for this purpose. If one has applied for the purpose of delaying deportation, then they will not be released unless the applicant would take unreasonably long to process. In all other circumstances, one will be released.(111)

First Interview

At the first interview, the interviewer (nearly always an immigration officer from the Department of Home Affairs) completes what is called an "Eligibility Determination Form," in which the applicant is required to respond to a series of questions relevant to his or her application for asylum.(112) The department employs a limited number of persons from amongst asylum applicants or classified refugees to assist with interpretation during these interviews, though the applicant is generally requested to provide his or her own interpreter and a supporting statement in his or her own language. Following the interview, the applicant is provided with a temporary residence permit under section 41 of the ACA, usually for a period of three months, and has the right to work while the permit is valid.(113) The department renews this permit while the application is being processed.

Processing of Applications

Following the first interview,(114) applications are prepared by case workers at the regional offices in Cape Town, Durban, Johannesburg, and Pretoria. Decisions are split into two groups. Applications from certain countries (presently the Democratic Republic of Congo, Somalia, Burundi and Angola) are considered by the Department of Home Affairs' Regional Subcommittees. Decisions on the applications from all other countries are the responsibility of the Standing Committee, based in Pretoria and presently chaired by one of the Deputy Directors-General of the Department of Home Affairs.

The Standing Committee or Subcommittee ("Committees") decide whether the applicant fulfills the definition of a refugee contained in the 1951 U.N. Convention and 1969 OAU Convention. In addition to the Eligibility Determination Form and the applicant's statement obtained at the first interview, departmental officials rely on the UNHCR's Centre for Documentation and Research, in particular the computer database on country information, as well as the reports of international human rights organizations, the Africa Institute in Pretoria, the International Organization for Migration and on information supplied to them by South African embassies and consulates.(115) Under the Basic Agreement between UNHCR and the South African government, UNHCR is permitted to monitor the activities of the Standing Committee and Regional Subcommittees, though in practice it appears that this rarely happens.(116) UNHCR is also consulted when the Department deems this necessary.(117)

The Standing Committee or its Subcommittees only occasionally re-interview the applicant if they wish to obtain further information or confirm specific statements made at the first interview, or in light of other information received by the Department of Home Affairs. The interviewer's "credibility statement" (part of the Eligibility Determination Form) is also taken into account, but no independent assessment of credibility is made. The committee thus depends largely on the views and diligence of the low-level immigration officials who conducted the initial interview, and give the asylum applicant no opportunity to make his or her case in person to the people actually deciding the application. After determining whether the applicant is a refugee, the department then decides whether it will grant the applicant asylum. For this the department considers those countries the applicant passed through en route to South Africa and whether (or if not for what reason) any of those countries could have provided protection.


Officials of the Standing Committee or Regional Subcommittees make a decision whether or not to grant asylum. If the application is successful, then the department notifies the applicant and grants that person and, on request by the successful applicant, his or her family refugee status in South Africa. The applicant is granted a further section 41 permit for a period (usually six months) after which the applicant's status may be re-evaluated by the Standing Committee, though repeated renewals are usually automatic.(118) Applications can take up to two years to process.

"Refugee Generating Countries"

Decisions on applications from certain countries are said by officials of the Department of Home Affairs to be virtually automatic. Provided applicants are able to show they are from what is referred to by the Department of Home Affairs as a "refugee generating country," their applications can be processed very quickly. The quicker procedure is apparently on the basis that, once it is established that an applicant from a country which is considered to fulfil the criteria set out in the extended definition of a refugee under the 1969 OAU Convention (including the existence of "events seriously disturbing public order in either part or the whole of [the] country"), he or she need not show individual persecution but only that he or she indeed comes from that country.

Those countries considered to be "refugee generating" by the Department of Home Affairs include Somalia and until fairly recently(119) Angola. It is not clear, despite various exchanges with officials of the Department of Home Affairs, what procedure is used to determine whether a country will be treated as "refugee generating." It is also not clear exactly what effect coming from a refugee generating country has on an individual's application, except that the chances of the application being successful are greatly increased. On the other hand, our interviews suggest that applications from certain countries, such as Tanzania, Mozambique, and most recently Angola, are automatically rejected without an individual determination being made.

"Manifestly Unfounded" Applications

If one of the department's assistant refugee officers is of the opinion that an application is "not at all related to the refugee criteria" or is deemed to be an "abuse of process," (120) then the officer will make a recommendation that the application be declared manifestly unfounded. This recommendation is reviewed by a Deputy Director of Refugee Affairs and, should he or she support this determination, the applicant will be informed that he or she has been refused asylum and must leave the country. A recent consent judgment has required the Department of Home Affairs to furnish all rejected asylum applicants, included those rejected as manifestly unfounded, with reasons for their rejection.(121)


Under the terms of this consent judgment, the Department of Home Affairs now provides reasons for all rejected asylum applicants, including those determined to be "manifestly unfounded."(122) However, according to Home Affairs officials, "manifestly unfounded" rejections are not entitled to an appeal, as the "manifestly unfounded" procedure is aimed at screening out those who should not be in the asylum seeking process.(123) The Appeals Board consists of a single retired advocate in Pretoria, Advocate Leach employed by the Department of Home Affairs, whose decisions are treated as final and binding. Out of a total of 519 appeals made so far to the Appeals Board, only two decisions were reversed on appeal.(124)


The applicant is permitted to be represented throughout the proceedings, though during the first and subsequent interviews the representative must remain silent and not intervene.(125) However, it is extremely rare that asylum-seekers are represented, given their lack of means and the NGO community's lack of capacity. A small number of rejected applications have been taken up by NGOs before the courts. Legal aid under South Africa's system for civil and criminal cases is not available for persons applying for asylum.

Rejected Applicants

Asylum-seekers whose applications are rejected are given what Home Affairs officials and asylum-seekers refer to as a "must leave" document with thirty days in which to leave South Africa. If the applicant does not leave or appeal (if it is still possible to do so) within the time period, he or she may be arrested if found and is often put into detention. Once funds are made available by the Department of Home Affairs for the repatriation, the rejected applicant is deported, although he or she is permitted to leave earlier using his or her own independent means. Those persons whose applications for asylum are rejected are subject to deportation as "prohibited persons" if they do not leave within the required period of notification (usually thirty days).(126)

These persons who are arrested and detained either before they applied for asylum or who failed to leave the country in time following a rejected application are deported to their countries of nationality. If a person does not have travel documents, then the department seeks to obtain such documents from the relevant embassy, identifying such persons as "illegal immigrants."(127) If the embassy requires the physical presence of the individual, then he or she is taken to the embassy and travel documents are eventually issued.(128) The individual is then returned to his or her country of origin once funds are made available by the Department of Home Affairs and are detained until then.(129)

1. This section of the report is based significantly on the submission of Human Rights Watch to the Green Paper Task Force on International Migration. Human Rights Watch, "The Human Rights of Undocumented Migrants, Asylum Seekers and Refugees in South Africa," dated April 11, 1997.

2. Proclaimed and adopted by U.N. General Assembly resolution 217A(III), December 10, 1948.

3. International Covenant on Civil and Political Rights, adopted by U.N. General Assembly Resolution 2200 A (XXI) of December 16, 1966, entered into force March 23, 1976.

4. International Covenant on Social, Economic and Cultural Rights, adopted by U.N. General Assembly Resolution 2200 A (XXI) of December 16, 1966, entered into force January 2, 1976.

5. ICCPR Articles 25 and 12. The UDHR, the ICCPR and the ICESCR all explicitly include discrimination on grounds of national origin (though not nationality) in their general prohibition of discrimination. UDHR Art. 2; ICCPR Art. 2(1); ICESCR Art. 2(2).

6. At the time of its adoption, South Africa abstained from the vote on the UDHR, together with the Soviet Union, Byelorussia, Ukraine, and Saudi Arabia. Its abstention does not relieve South Africa of its human rights obligations as a member of the United Nations today. South Africa was a founding member of the United Nations at the time of the signing of the United Nations Charter in 1945, and has remained a member since, although it was effectively excluded from all organs of the U.N. from 1974 to 1994, in protest of the policies of apartheid. Articles 55 and 56 of the Charter commit states to promote, among other things "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion."

7. Constitution of the Republic of South Africa (1996), Section 232.

8. Adopted by General Assembly resolution 40/144 of December 13, 1985.

9. Ibid., Articles 5 and 6.

10. U.N. Human Rights Committee, General Comment 15: The Position of Aliens under the Covenant (Twenty-seventh session 1986), U.N. Document HRI/GEN/1/Rev.1 (1994), p.18. A General Comment of the Committee aims to clarify interpretations of the ICCPR and to serve as a guideline for assessing state compliance with the covenant. The Human Rights Committee is charged with the task of monitoring the implementation of the International Covenant on Civil and Political Rights.

11. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), adopted and opened for signature, ratification and accession by General Assembly Resolution 34/180 of December 18, 1979, entered into force September 3, 1981, and ratified by South Africa on December 15, 1995. The Convention on the Rights of the Child, adopted and opened for signature, ratification and accession by General Assembly Resolution 44/25 of November 20, 1989, entered into force on September 2, 1990, and ratified by South Africa on June 16, 1995.

12. CEDAW, Article 9.

13. Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663C (XXIV) of July 31, 1957 and 2076 (LXII) of May 13, 1977.

14. Adopted by General Assembly resolution 43/173 of December 9, 1988.

15. Adopted by General Assembly resolution 45/111 of December 14, 1990.

16. Adopted by General Assembly resolution 45/113 of December 14, 1990.

17. Body of Principles, Principles 4, 11, 13, 17 and 18.

18. U.N. Human Rights Committee, General Comment 15, paragraphs 9 and 10.

19. Adopted by General Assembly Resolution 45/158 of 18 December 1990.

20. As of the date of this report, the convention had only seven state parties (Chile, Egypt, Mexico, Morocco, Philippines, Seychelles, and Uganda) and had not yet entered into force (which requires twenty ratifications). While it is not therefore binding on South Africa or any other country in international law, it does provide a standard by which state practice can be assessed.

21. Convention on the Protection of the Rights of All Migrant Workers, Article 2(1).

22. A "documented" migrant is a migrant worker or family member who is "authorized to enter, to stay and to engage in a remunerated activity in the State of employment pursuant to the law of that State and to international agreements to which that State is a party." An "undocumented" migrant is a migrant worker or family member who does not comply with the conditions provided to be a documented migrant. Ibid. Article 5.

23. Ibid., Articles 17(3), 21, 22, 25, 29 and 30.

24. Ibid., Articles 43, 45 and 47.

25. ICCPR Article 24(3); Convention on the Rights of the Child, Article 7.

26. Adopted on August 30, 1961 by a Conference of Plenipotentiaries convened pursuant to General Assembly resolution 896(IX) of December 4, 1954; entered into force December 13, 1975.

27. Ibid., Article 1.

28. Adopted on September 28, 1954 by a Conference of Plenipotentiaries convened by Economic and Social Council resolution 526A(XVII) of April 26, 1954; entered into force June 6, 1960.

29. Convention Relating to the Status of Refugees, adopted by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons on July 28, 1951, entered into force on April 22, 1954.

30. Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, adopted by the Assembly of Heads of State and Government at its sixth ordinary session, Addis Ababa, September 10, 1969, entered into force June 20, 1974.

31. The Executive Committee of the Programme of the U.N. High Commissioner for Refugees (ExCom) is currently made up of representatives of fifty-one states, largely from those states that are important refugee-producing countries, important asylum countries or important donors to UNHCR's programs; not all members of ExCom are signatories to the 1951 U.N. Convention. The terms of reference of ExCom are to advise the High Commissioner for Refugees in the exercise of his or her functions, to approve the High Commissioner's programs and to set financial targets. While ExCom does not set legal obligations on states or on UNHCR, its conclusions on refugee protection serve as guidelines for judging government action.

32. Letter from Claude Schravesande to Human Rights Watch, dated July 3, 1996, and Human Rights Watch telephone interview with Claude Schravesande, July 10, 1996.

33. Convention Relating to the Status of Refugees, Article 1(A)(2). Note that it is possible for a person to become a refugee at some time after leaving his or her own country, for example if political events at home suddenly make return unsafe.

34. Convention Governing the Specific Aspects of Refugee Problems in Africa, Article 1(2).

35. UNHCR, Guidelines on the Detention of Asylum Seekers, paragraph 11.

36. While the UDHR does not impose a duty on states to grant asylum, Human Rights Watch considers that the prohibition on expelling or returning refugees to the frontier of territories where their life or freedom would be threatened (refoulement) to be a norm of international customary law binding on all states whether or not they have ratified the 1951 U.N. Convention, and that this prohibition extends to situations in which asylum-seekers have not yet entered a state but are turned away at the border.

37. 1969 OAU Convention, Articles 2 (3) and 5 (1).

38. Adopted by U.N. General Assembly resolution 39/46 of December 10, 1984; entry into force June 26, 1987. South Africa signed the Convention Against Torture in 1993, though it has not yet ratified the treaty.

39. UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (United Nations, Geneva: 1988), p.45.

40. Handbook on Procedures, Paragraph 192.

41. 1951 U.N. Convention, Articles 16, 22, 23 & 24.

42. 1969 OAU Convention, Article II(1).

43. In the case of the 1951 U.N. Convention, Article 3, "without discrimination as to race, religion or country of origin"; under the 1969 OAU Convention, Article IV "without discrimination as to race, religion, nationality, membership of a particular social group or political opinion."

44. Guidelines, paragraphs 7 and 8.

45. Guideline 3 is based on UNHCR ExCom Conclusion 44 "Detention of Refugees and Asylum Seekers," adopted by consensus, 1986. However, Human Rights Watch is concerned that the grounds for detention provided in Guideline 3 are too vague and undefined, and believes that states should set more precise and limited rules for detention for themselves.

46. Constitution of the Republic of South Africa (1996) Sections 19, 20, and 21.

47. Ibid., Section 7(2).

48. Ibid., Section 8(1).

49. Ibid., Section 10.

50. "The history of systematic discrimination in South Africa, from segregation through apartheid, was premised on gross invasions of human dignity. The denial of this human right, protected in many international human rights instruments, most notably the Universal Declaration of Human Rights (art. 1) and the African Charter on Human and Peoples' Rights (art. 5), was so pervasive that its inclusion [in the bill of rights], immediately after the rights to equality and life, was entirely uncontroversial." Lourens Du Plessis and Hugh Corder, Understanding South Africa's Transitional Bill of Rights (Cape Town: Juta, 1994), p. 149.

51. Constitution (1996), Section 12(1).

52. Ibid., Section 33.

53. Ibid., Section 35(2).

54. Ibid., Section 9.

55. Ibid., Section 11.

56. Ibid., Section 13.

57. Ibid., Section 14.

58. Ibid., Section 15.

59. Ibid., Section 16.

60. Ibid., Section 17.

61. Ibid., Section 18.

62. Ibid., Section 32.

63. Ibid., Section 25.

64. Ibid., Section 24.

65. Ibid., Section 26.

66. Ibid., Section 27.

67. Ibid., Section 29.

68. Ibid., Section 30.

69. Section 28(1) of the South African Constitution recognizes the right of "every child" (defined as a person under the age of eighteen years) to "a) a name and nationality from birth; b) to family care, parental care, or appropriate alternative care when removed from the family environment; c) to basic nutrition, shelter, and basic health care services, and social services; d) to be protected from maltreatment, neglect, abuse, or degradation; e) to be protected from exploitative labor practices; f) not to be required or permitted to perform work or provide services that I) are inappropriate for a person of that child's age; or ii) place at risk the child's well-being, education, physical or mental health, or spiritual, moral, or social development; g) not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be- I) kept separately from detained persons over the age of 18 years; and ii) treated in a manner, and kept in conditions, that take account of the child's age; h) to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; and I) not to be used directly in armed conflict, and to be protected in times of armed conflict."

70. A number of decisions on the rights of migrants have been handed down by lower courts under the previous interim South African Constitution of 1993. For a review and critique of these decisions, see Jonathan Klaaren, "So Far Not So Good: An Analysis of Immigration Decisions under the Interim Constitution," South African Journal on Human Rights, vol. 12 (Cape Town: Juta, 1996), pp. 605-616.

71. Larbi-Odam and Others v. The Member of the Executive Council for Education (North-West Province) and Another.

72. Ibid., preamble.

73. Act No. 96 of 1991.

74. Eddie Koch, "The Pass Laws Keep on Prowling," Mail & Guardian (Johannesburg), July 15, 1994; Jonathan Crush, "Apartheid's Last Act?," Democracy in Action, Vol. 10(2) (1996), pp. 12-13.

75. Sally Peberdy and Jonathan Crush, "Rooted in Racism: The Origins of the Aliens Control Act," South African Migration Project Migration Policy Series No. 3. Jonathan Klaaren makes a similar point: "Until 1986, South African immigration was explicitly racial, requiring that applicants for permanent residence be 'readily assimilable by the white inhabitants.' Especially from 1960, the government recruited white skilled workers, offering them permanent residence, but continued to prohibit recruited black workers from counting their time of employment towards naturalization. The effect of these policies was that permanent residence was reserved for whites and not blacks. Since the law of naturalization (as well as other legislation) depends on permanent residence status, a strong if indirect equality claim thus exists." Jonathan Klaaren, "Immigration and the South African Constitution," South African Migration Project Policy Series No. 3.

76. Act No. 76 of 1995.

77. Entering South Africa somewhere other than a designated port of entry, failing to report to an immigration officer, entering without a visa, or failing to produce satisfactory documentation upon request are grounds for being declared a prohibited person, whether or not that person would otherwise be legally within the country. Section 9(1) read with sections 5, 6, and 7. A person entering South Africa without a valid passport and visa is also a prohibited person unless "proved to be a South African citizen." Section 11(1).

78. The substantive grounds cover any person who is "likely to become a public charge," who is "deemed by the Minister to be an undesirable inhabitant of or visitor to the Republic" from information received through official or diplomatic channels, who "lives or has lived on the earnings of prostitution," who has committed one of a number of crimes, or who is mentally ill or afflicted with a disease. See section 39(2) of the Act. This last ground was used from 1987 to 1991 to bar persons with AIDS or HIV from entering South Africa legally: under the predecessor section to section 39(2)(f), the Minister of Home Affairs in October 1987 declared AIDS and HIV a disease "the affliction with which will render the person a prohibited person." After considerable protest, these immigration restrictions were dropped in October 1991 without having ever been implemented. See Edwin Cameron, "Human Rights, Racism and AIDS: The New Discrimination," South African Journal on Human Rights, vol. 9 (Cape Town: Juta, 1993), p. 22.

79. Alternatively, the immigration officer may issue a person suspected of being a prohibited person with a provisional permit with conditions and limitations in order to provide time for investigation of the matter and, after such investigation, declare the person to be a prohibited person if the investigation reveals evidence to this effect. In this case, the person suspected of being a prohibited person is allowed to enter the Republic while the investigation is ongoing. ACA section 10.

80. The 1937 Aliens Act, for example, echoed previous legislation by requiring that applicants for entry to South Africa should be readily assimilable with the European inhabitants of the Union. Sally Peberdy and Jonathan Crush, "Rooted in Racism: The Origins of the Aliens Control Act," South African Migration Project Migration Policy Series No. 3.

81. Section 40(1)(d)(ii) and (iii).

82. Section 40(3).

83. Section 27. This provision does not apply to a small category of persons exempted under the South African Citizenship Act 1949. Section 27(4).

84. Section 26(5).

85. Section 9(3) provides that section 9, relating to the declaration of persons as prohibited persons, does not apply to South African citizens. Section 11 similarly states that a person who enters without a passport or a visa is not a prohibited person "if it is proved that he is a South African citizen."

86. Section 7(1). If a person either fails to comply with such a request made by an immigration officer or "fails to satisfy the immigration officer that he is not a prohibited person" the immigration officer is required under section 9 to declare that person to be a prohibited person.

87. Note that section 7 refers only to immigration officers while section 53(1) refers to both immigration officers and police officers. Section 7(1) does not have a statutory requirement of reasonable grounds. As indicated below, a number of police within internal tracing unit are also immigration officers.

88. Section 53(2). This onus may be interpreted--at least as a matter of practice--to lie with the person to prove that they are entitled to be in South Africa rather than with the Department. Such an onus may be a difficult one to discharge for black citizens without proper documentation. As documented in this report, many black South Africans are arrested and detained for several days while their citizenship is being confirmed.

89. Section 44(1).

90. Persons convicted of a wide range of crimes (broader than the range of crimes making one liable to declaration as a prohibited person) and sentenced to imprisonment of at least twelve months may be removed under section 45(1). Additionally, a person admitted for permanent residence who commits any offence within three years of admission may be removed if deemed by the minister to be undesirable inhabitant of the Republic. In making this determination, the minister may consider the circumstances of the offence, previous convictions, and "family affairs." Section 46(1). Persons removed under these sections are counted as deported by the Department. The act, however, refers only to "removals."

91. Department of Home Affairs, "Removals according to Section 45, 46 and 47 of the Aliens Control Act, 1991 (Act 96 of 1991) as amended. These persons have been convicted of crimes in RSA," dated January 27, 1998.

92. Section 44(1)(a). Section 16(1) provides that the master of a ship shall detain and remove prohibited persons found aboard that ship.

93. This is the same standard that existed for all detentions prior to 1 July 1996 under the predecessor to section 55.

94. Aliens Control Regulations (28 June 1996) (No. R. 999, in GN 17253, Reg Gaz No. 5716).

95. There had previously been such a statutory right of appeal but it was removed in 1991. See S. Peberdy, "An Outline of the History of South Africa's Immigration Legislation."

96. Section 52(1). A recent case extends the applicability of the procedure for written representations to the Ministers (section 52(1)) beyond detention cases deriving from sections 9 or 10 to detention cases deriving from the provisions of section 7 where persons could be declared prohibited persons but are not and are nonetheless detained. The case might be interpreted to extend the applicability procedure to removals although it did not do so on its facts. See Eddie Johnson v Minister of Home Affairs and Another, Case No. 15630/1995 (CPD) (August 14, 1996) (Chetty, J.).

97. Communication from A. Liebenberg, Home Affairs, to Jonathan Klaaren, January 26, 1997.

98. Communication from H. Meyer, Home Affairs, to Jonathan Klaaren, January 16, 1997.

99. Communication from H. Meyer, Home Affairs, to Jonathan Klaaren, January 16, 1997.

100. Until the amendments brought into effect on July 1, 1996, the ACA contained a clause that purported to oust any court from inquiring into the validity of a detention conducted under the act. Indeed, this ouster clause covered all immigration matters, not just detentions. However, this provision has now been removed. (Section 55 of the Aliens Control Act 96 of 1991, which provided: "(1) Subject to the provisions of subsection (2), no court of law shall have any jurisdiction to review, quash, reverse, interdict or otherwise interfere with any act, order, or warrant of the Minister, an immigration officer or master of a ship performed or issued under this Act and which relates to the restriction or detention, or the removal from the Republic, of a person who is being dealt with as a prohibited person. (2) If any person is detained under the provisions of this Act elsewhere than on a ship, that detention shall not be for a longer period than is under the circumstances reasonable and necessary.")

101. Eddie Johnson v Minister of Home Affairs and Another, Case No. 15630/1995 (CPD) (August 14, 1996) (Chetty, J.). The Court also noted that the immigration officer had not declared Johnson a prohibited person as he was required to do by section 9(1) of the Act.

102. One lower court has held that detention under the Aliens Control Act is an administrative or executive act or conduct granting the Supreme Court jurisdiction over its constitutionality. See Eddie Johnson v Minister of Home Affairs and Another, Case No. 15630/1995, (August 14, 1996), (Chetty, J.) (CPD).

103. E-mail from Anton Katz to Jonathan Klaaren, July 15, 1996. In Djama v Government of the Namibia and Others, 1993 (1) SA 387 (NmHC), a detention over approximately two weeks was stated to be unreasonably long in the circumstances of that case.

104. E-mail from Steve Tuson to Jonathan Klaaren, July 15, 1996; E-mail from Steve Tuson, July 19, 1996. There is such a system available in Johannesburg and elsewhere for after-hours bail in respect of persons criminally charged.

105. E-mail from Steve Tuson to Jonathan Klaaren, July 19, 1996.

106. Ibid.

107. Interchange with Enquiries Officer, Hillbrow Police Station, November 30, 1996: "Illegals don't get bail. They are not South African."

108. E-mail communication from Anton Katz, July 15, 1996.

109. Telephone interview with S. Lockhart, August 23, 1996.

110. This section of the report is based on the work of the Refugee Rights Project of Lawyers for Human Rights (LHR).

111. Claude Schravesande, "Government Policies and Procedures," at Asylum and Naturalisation: Policies and Practices, Refugee Rights Consortium Workshop, November 14, 1996.

112. While the procedure was still new, interviewers had very little understanding of what was expected of them in completing this form. Though matters appear to have somewhat improved, NGOs have expressed several outstanding concerns, particularly regarding the lack of capacity to handle the increasing number of applications, and whether immigration officers are adequately trained to do this sort of work.

113. In practice, it is very difficult for asylum applicants to find work, given the uncertainty of their status and the short period of the temporary permits granted. Some applicants (commonly, those whose applications were eventually declared "manifestly unfounded") have received permits of only one month duration.

114. The Department occasionally calls back an applicant for a further interview in order to clarify or confirm certain statements.

115. As discussed in this report, officials within the Department have expressed their frustration with the difficulty in obtaining up-to-date information from the Department of Foreign Affairs on country situations, which may take up to several months.

116. This is, in the view of staff at the UNHCR Regional Office in Pretoria, largely due to the office being seriously understaffed and underresourced.

117. It is still not clear precisely under what circumstances the Department consults the UNHCR, other than in cases where the UNHCR is considered to be "better positioned" (see Gauteng Forum meeting, ante) to confirm specific statements made by the applicant.

118. Apart from the situation of Mozambicans, whose repatriation back to Mozambique (after the government considered the situation in that country to be stable) was the subject of a tripartite agreement between the UNHCR and the governments of South Africa and Mozambique, it does not appear that the status of many refugees has been the subject of review on the basis of changed circumstances in the home country.

119. Angola is no longer seen as a refugee generating country by the responsible officials in the Department of Home Affairs, and it appears that Angolans are now rejected as a matter of course.

120. It is not clear at what point in the application process an application will be found to be manifestly unfounded, nor of what criteria are used to make this decision. Mr. Schravesande, then-Director of Refugee Affairs at the Department of Home Affairs has mentioned as examples cases of persons who are accused of ordinary criminal offences and are not deemed to be suffering from persecution. Schravesande, "Government Policies and Procedures."

121. Human Rights Watch interview with William Kerfoot, attorney, Legal Resources Centre, Cape Town, December 11, 1997.

122. Marion Edmunds, "Refugees Score in Fight for Asylum," Mail & Guardian, December 13 to 19, 1997, p. 13.

123. Claude Schravesande, "Government Policies and Procedures."

124. Department of Home Affairs, "Appeal Application--Refugee Status (Adv. Leach)," fax to Human Rights Watch dated January 27, 1998.

125. Ibid.

126. Section 43 ACA.

127. Certain embassies, including the Democratic Republic of Congo, have started requesting a fee for the provision of travel documents.

128. According to interviews with immigration officers and rejected asylum-seekers by Human Rights Watch at Pretoria Prison in October 1996, persons waiting to be deported have complained that the embassies are made aware that they have applied for political asylum in South Africa and as a result they fear for their lives. It is unclear whether this is a result of the applicant's admission or an immigration officer's careless statement. The Department of Home Affairs claims that its officers are under instruction not to disclose the fact that a person has applied for asylum.

129. According to interviews with asylum-seekers held in detention at Kameelsdrift Police Station outside Pretoria in August 1996, there was one particularly worrying instance where the Department sought to deport a group of persons to Zaire without travel documents. These persons were taken to the airport with no warning in the very early hours of the morning and then kept in the back of a police vehicle for three hours in cramped conditions until it was obvious that the pilot of the aircraft would not allow those persons to board without travel documents. They were then taken back into custody.