The principles of human dignity and equality for all are enshrined in South Africa's constitution. Since 1994, the country has become a party to most major international refugee and human rights conventions. The Refugees Act 130 of 1998, which came into force in 2000, was South Africa's first comprehensive legal framework for refugees and asylum seekers. On paper, the Refugees Act and the constitution provide comprehensive protections for the rights of those fleeing persecution, including the rights to fair and efficient status determination procedures, registration and documentation, to freedom from arbitrary detention and threat of deportation, and to services such as health care, shelter and education.
However, these legal guarantees have not yet been fully put into practice by those South African institutions responsible for the protection and promotion of these rights.Although South Africa now has in place a good formal legal regime for the protection of refugees and asylum seekers, serious flaws remain in its implementation. Refugees and asylum seekers in Johannesburg continue to experience problems in realizing their rights and gaining access to services.
The inability of the Department of Home Affairs (DHA) to process asylum applications within the legally stipulated six-month period has resulted in prolonged insecurity for asylum seekers, in some cases for up to five years. During this waiting period, Human Rights Watch found that asylum seekers are living on the margins. They are often unable to work or study, although they are legally entitled to seek employment and education.Refugee reception officers appear to be arbitrarily applying a ruling that lifted a prohibition on work and formal education for asylum seekers, sometimes only removing the prohibition after bribery or intervention by lawyers. The inability to seek employment and work prevents asylum seekers from meeting their own basic needs.
Refugees and asylum seekers also face harassment, mistreatment and the risk of arbitrary arrest and detention by law enforcement agencies. This restricts their freedom of movement and association, their access to services to which they are entitled, and to enjoy their right to work. Corrupt practices within DHA and the police services in Johannesburg are a further obstacle to effective protection for refugees and asylum seekers in Johannesburg.
This report examines the obstacles asylum seekers encounter in access to the refugee status determination process and the lack of protection that asylum seekers and refugees receive in Johannesburg. The Johannesburg refugee reception office was selected as the focus of research for this report because, until May 2005, it received the largest number of applications for asylum. For a significant number of asylum seekers, the Johannesburg office was the first office approached on arrival in South Africa. The Johannesburg office currently has the largest number of pending asylum seeker applications approximately 75,000 out of 115,000 applications as at the end of 2004. The challenges in the refugee status determination process in Johannesburg are representative of similar challenges at other refugee reception offices across the country, particularly with regard to corrupt practices, delays in the determination of refugee status and access to the office.
Human Rights Watch calls on South Africa, in line with its international and domestic obligations, to take further measures to provide effective protection to refugees and asylum seekers. These measures should encompass not only protection from refoulement but also protection of the fundamental human rights of the 142,000 or so refugees and asylum seekers South Africa hosts.
Human Rights Watch interviewed dozens of asylum seekers and refugees, including unaccompanied children, as well as nongovernmental organizations (NGOs) that provide services to asylum seekers and refugees, United Nations High Commissioner for Refugees (UNHCR) representatives, and South African government officials between July 2004 and February 2005. The names of refugees, asylum seekers, and NGO workers have been withheld to protect their security and privacy.
To the government of South Africa
- Ensure that DHA in Johannesburg verifies in a timely manner the status of asylum seekers and refugees who have been arrested or detained. All staff having contact with migrant populations should be trained to identify asylum seekers and channel them into the asylum procedure.
- Substantially increase the number of appropriately trained staff and the facilities at refugee reception offices for more efficient processing of asylum applications, the determination of status, and the issuing of refugee identity documents.
- Strengthen the anti-corruption unit within DHA to urgently address incidents of corruption in the refugee status determination system. Investigate and prosecuteany officials alleged to be involved in corrupt practices.
- Provide competent, official interpreters to assist refugees and asylum seekers through the asylum application and status determination process, including any appeals.
- Establish an information desk at refugee reception offices to assist with queries from asylum seekers and refugees. Appropriately trained officials and interpreters at the information desk should explain to refugees and asylum seekers their rights and obligations, and assist with providing information about local service providers.
- Prominently post signs at refugee reception offices in the main languages of asylum seekers that clearly state that all services are to be provided free of charge and that any request by reception office personnel for money or other favors should be reported immediately.
- Provide a clear complaint mechanism for asylum seekers and other clients to register complaints. Provide means to assure that complaints will be considered without prejudice to refugee status claims. Assure that the staff member about whom the complaint is directed is not involved in receiving or processing the complaint. For example, complaints could be submitted directly into a secure complaint box that would be opened regularly by the head of office and a DHA official from outside the office. Assist illiterate clients in submitting complaints.
- Increase coordination and cooperation between DHA and other government departments to facilitate access to social services for refugees and asylum seekers. In particular, refugees or asylum seekers who act as foster parents or guardians for unaccompanied refugee or asylum-seeking children should receive government financial support for the care of children.
- Improve administrative procedures to ensure that unaccompanied children seeking asylum are able to enter the refugee status determination process as soon as possible and be immediately referred to the Department of Social Development for assistance.
- Develop a protocol for refugee reception office officials on processing asylum applications of unaccompanied children. Such a protocol should include, at a minimum, standards for interviewing children, meeting their special needs, performing best interest determinations, and undertaking family tracing.
- Based on the general principle that children should not be detained, establish a referral system for unaccompanied children detained at Lindela deportation center in order that they are moved to more appropriate, alternative accommodation as soon as possible.
- Ensure that recognized refugees are not forced to resubmit the substance of their claims periodically, when extending their refugee identity documents or their refugee status permits, but are instead granted a secure legal status that cannot be withdrawn without proper application of the cessation clauses contained in the Refugees Act.
To the United Nations High Commissioner for Refugees
- Assist the South African government to devise strategies aimed at better integration of refugees and asylum seekers into the South African community. This should include instructing private institutions and employers to recognize DHA documents pertaining to refugees and asylum seekers.
- Assist the government to develop written and video materials that clearly outline the rights and obligations of refugees and asylum seekers. These materials should be in the languages widely spoken by the refugee community.
- Advise DHA on developing official protocols for assisting and protecting refugee and asylum-seeking children, including unaccompanied minors, to promote the best interests of the child.
- Develop a wider and deeper network of implementing partners to ensure that all refugees and asylum seekers in need of assistance are adequately supported.
The Aliens Control Act of 1991 was the only piece of legislation regulating the movement of non-nationals into South Africa when, in 1993, South Africa signed a first "Basic Agreement" with UNHCR. As detailed by Human Rights Watch in its 1998 report Prohibited Persons, the Aliens Control Act dealt with refugees and asylum seekers in an ad hoc manner. Without statutory basis for determining refugee status, procedures were instead contained in internal DHA circulars. The procedures could not readily be challenged in court and there was little recourse to either administrative or judicial appeal.
Although the number of prima facie refugees has declined from its peak in the early 1990s, South Africa has, since 1994, experienced a steady increase in the number of individuals seeking asylum. The ratification of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (1951 UN Refugee Convention) and the Organization of African Unity's 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU), as well as the growing number of asylum seekers in the territory, necessitated the creation of a comprehensive legal framework for refugees and asylum seekers in South Africa.
South African civil society long debated legislation that became the Refugees Act No. 130 of 1998 (Refugees Act), which did not come into force until its regulations were published in April 2000. The Refugees Act and its regulations define the legal standard for refugee status, establish South Africa's asylum procedure, and set out the rights and obligations of refugees and asylum seekers. In spite of a comprehensive law, however, many refugees and asylum seekers continue to face significant obstacles to their right to seek and enjoy effective protection in South Africa.
As of 1999, before the Refugees Act came into force, 54,759 asylum applications had been lodged. Out of this number, 8,504 were recognized as refugees, 25,020 were rejected, and 21,295 applications were pending. By end 2004, the provisional number of asylum applications pending according to the UNHCR had risen to 115,224 of which 32,600 were new applications. In addition, the Department of Home Affairs granted refugee status to 27,683 asylum seeker applications largely from the Democratic Republic of Congo, Somalia, Angola and Rwanda. This brought the total of the asylum seeker and refugee population to 142,907 by the end of 2004. The asylum application backlog makes up a large proportion of this group.
Poor planning and inadequate preparation for the coming into force of the Refugees Act has largely been responsible for the backlog of asylum applications. The government did not adequately manage the transfer of asylum applicants issued under the Aliens Control Act to the new system. Too few immigration officials were hired and trained to administer the Refugees Act. DHA and UNHCR implemented a Backlog Project to reduce the number of pending asylum applications issued under the Aliens Control Act between 2000 and 2001. In addition to reducing the number of pending asylum applications, this project was intended to equip DHA with a roster of well-trained refugee affairs officers. The UNHCR embarked on another backlog project from August 2005 (see below).
Following its first democratic elections in 1994, South Africa acceded to and ratified several refugee and human rights treaties, most notably the 1951 UN Refugee Convention and the OAU Refugee Convention. The OAU refugee definition expands the 1951 Refugee Convention's narrow "well-founded fear of being persecuted" standard by including other grounds for refugee status, including flight across borders caused by "external aggression, occupation, foreign domination, or events seriously disturbing public order in either part or the whole of his country of origin or nationality."
Both the UN Refugee Convention and OAU Refugee Convention impose certain obligations on host states to protect the rights of refugees and asylum seekers, including with regard to status determination and documentation, and uphold certain social and economic rights for refugees. Article 2 of the OAU Refugee Convention recognizes the granting of asylum as a mechanism to protect refugees; in particular, it notes that states shall "use their best endeavors consistent with their respective legislations 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 of nationality,"
The African Charter on Human and Peoples' Rights (African Charter), to which South Africa is a party, guarantees for the rights of every individual, "when persecuted, to seek and obtain asylum in other countries in accordance with laws of those countries and international conventions." The International Covenant on Civil and Political Rights guarantees the right to the security of the person and prohibits "arbitrary arrest and detention."
The UN Convention on the Rights of the Child and the OAU Convention on the Rights and Welfare of the Child, to which South Africa is a party, protect the rights of refugee and asylum-seeking children, and place obligations on states parties to ensure that such children are protected and assisted and have access to services such as legal defense, education, and others. Article 22 of the UN Convention on the Rights of the Child calls on state parties to take appropriate measures to ensure that children seeking asylum, including unaccompanied minors, receive "appropriate protection and humanitarian assistance." Provision is further made for states to facilitate the tracing of family members or parents of any refugee child for family reunification.
The International Covenant on Civil and Political Rights, to which South Africa is a party, also protects refugees and asylum seekers from arbitrary detention.
South African law
Underlying the various international refugee and human rights conventions are the principles of non-discrimination and dignity, core tenets of South Africa's constitutional democracy. The 1996 South African constitution guarantees fundamental rights to all individuals, including refugees and asylum seekers. The Bill of Rights entrenches the rights (among others) to human dignity, freedom and security of the person, and the right of everyone in South Africa to have access to housing and health care. The Constitutional Court of South Africa has interpreted with regard to access to social assistance that "everyone" includes nationals and certain non-nationals in particular permanent residents. The constitution further guarantees due process of law for all.
Under the constitution, international law must be considered in the interpretation of the Bill of Rights and other national legislation. International law becomes legally enforceable in South Africa once it has been enacted into domestic law.
The Refugees Act, which came into effect in 2000, provides the first specific refugee law framework for South Africa. It is a marked shift from the previous Aliens Control Act, which, as noted above, was essentially silent on refugee protection. The Refugees Act sets up the 'refugee reception offices' which are tasked with issuing temporary permits to asylum seekers and with conducting eligibility and refugee status determination interviews. It also outlines the system of administrative appeals and judicial review, and establishes the Standing Committee for Refugee Affairs and the Refugee Appeals Board. Lastly, the Act outlines the rights and obligations of refugees and asylum seekers, including protection from refoulement, access to documentation, limited use of detention, and special provisions for unaccompanied children and the disabled. The Refugees Act is supplemented by its regulations, which provide detail on implementing the asylum application and refugee status determination processes.
Overview of the process
The refugee status determination process outlined in the Refugees Act sets out a detailed system for individuals seeking asylum in South Africa. Under the regulations to the Refugees Act, asylum seekers must present themselves in person at a refugee reception office "without delay." Also, the regulation 2(2) provides that when a person indicates his or her intention to seek asylum upon entry into South Africa, officials will issue him or her a temporary permit valid for fourteen days. During this period, the person should approach the nearest refugee reception office where a refugee reception officer will conduct an initial eligibility interview, in practice, to establish identity and the general reason for applying. The officer will issue a temporary asylum seeker permit, which sets the date for a full refugee status determination hearing (this is a non-adversarial process). There, a refugee status determination officer interviews the applicant and decides whether he or she should be granted refugee status. If refugee status is granted, DHA issues a permit, and subsequently, a refugee identity document. If the application is denied, the asylum seeker may appeal to the Refugee Appeals Board.
Overall, the refugee status determination system in the Refugees Act and regulations is a marked improvement over the ad hoc process used during the era of the Aliens Control Act. However, the day-to-day implementation of the system in Johannesburg-and thus the ability of refugees and asylum seekers to fully access and benefit from it-remains problematic.
The obstacles in the system in Johannesburg are apparent from the first moment the asylum seeker tries to enter the refugee reception office to the moment-often years later-when he or she receives a decision on refugee status. For example, given the difficulty asylum seekers have in gaining access to the Johannesburg refugee reception office, the fourteen-day permit issued at initial points of entry does not provide enough time for most asylum seekers to obtain asylum seeker permits under Section 22 of the Refugees Act. This is the first of several 'documentation gaps,' which can leave asylum seekers in situations of insecurity and jeopardy
Lack of clear, easily available rules regarding the asylum process and the operation of the Johannesburg office and the lack of official interpreters complicate the process and contribute to the pervasiveness of corrupt practices in and around the office.
Insufficient staff and inadequate equipment, such as functioning computers, are major causes for long delays in the asylum procedures. This situation is made worse because of inconsistent DHA decisions regarding work authorization. Many asylum seekers unable to support themselves are left destitute. There has also been insufficient public education regarding the asylum seekers' right to work and study.
Once a formal refugee status hearing does take place, refugees benefit from a broad refugee definition outlined in South African law. However, when refugees are recognized and granted status, the issuance of refugee documentation is not automatic, which hampers the individual's full access to his or her rights.
Lastly, some recognized refugees are denied "indefinite" refugee status and instead are required to resubmit their claims every two years to renew their permits-a practice which ignores UNHCR expert guidance on the importance of the Refugee Convention's cessation clauses as the sole grounds for withdrawing Convention refugee protection from an individual.
The next sections set out in more detail some of the key obstacles in the refugee status determination process in Johannesburg.
Applying for asylum
The fourteen-day permit to report to a refugee reception office
An immigration officer at a border crossing must issue an asylum seeker entering South Africa a temporary document, valid for fourteen days, requiring the person to apply for asylum at the nearest refugee reception office. At present there are five reception offices in the country, located in Johannesburg, Pretoria, Cape Town, Durban, and Port Elizabethwith Johannesburg being the busiest with the largest number of applications.
The issuing of the fourteen-day permit is meant to give an asylum seeker adequate time to reach the nearest refugee reception office and to apply for asylum without risk of arrest for being "illegal" (that is, present on the territory without authorization). An assumption exists that the asylum seeker will find the refugee reception office within the prescribed two-week period, be able to present him/herself before a refugee reception officer, and be issued with a permit.
However, as Human Rights Watch found, and as confirmed by NGOs working with refugees and asylum seekers, the fourteen-day document often expires long before many asylum seekers have been issued with an asylum seeker permit. In Johannesburg, this is due largely to the difficulties asylum seekers have in gaining access to the refugee reception office.
The Immigration Amendment Act 19 of 2004, which came into force on July 1, 2005, provides that a person automatically becomes an "illegal foreigner" (and therefore subject to detention and deportation) if this temporary document expires before the bearer is able to appear before a refugee reception officer.
Inability to gain access to the refugee reception office
The regulations to the Refugees Act state that an application for asylum must be lodged "without delay" at a designated refugee reception office.
Through visits to the Johannesburg reception office and interviews with asylum seekers and NGOs working on their behalf, Human Rights Watch found that factors preventing access to the office include gaining physical access to the refugee reception office; lack of information about the location of the office; how the office and asylum process functions; the need for most newly arrived asylum seekers to wait in long lines- sometimes overnight-in the hope that they might be admitted the next day; and the constantly changing system of admitting new arrivals seeking asylum.
An asylum seeker from Zimbabwe told Human Rights Watch about his experience in trying to gain access to the Johannesburg refugee reception office:
I went to Home Affairs one Monday evening in order to be in the front of the queue the following morning. The Tuesday-the day they admit Zimbabweans-they told me that they can only admit thirty applicants from Zimbabwe. I got into the office at 1100 when I received assistance.The refugee reception officer interviewed me. He took down basic information from me [the eligibility form]. He did not issue me with a paper as the printer was not working. I was told to return the following day.
An October 2004 report by the Office of the Public Protector in South Africa found that DHA "has acted in an unlawful and improper manner in denying refugees access to the building and services rendered at the Braamfontein Refugee Reception Office (now Rosettenville premises)" and that "refugees have been improperly denied the right of access to the asylum system and procedures."
The Johannesburg refugee reception office moved locations three times in a period of six months between 2003 and early 2004 before settling at its now permanent address in Rosettenville, south of Johannesburg's central business district. During this period there were no notices indicating where the office had moved. This created confusion and, potentially, the risk of arrest, detention, and deportation for those who were due to renew their permits but found the former offices shut.
The absence of available information at the office on either the asylum process or on the rights of asylum seekers in general further opens the process to potential corrupt practices by unscrupulous actors within and outside the system. One refugee told Human Rights Watch, "Look for a friend, give him money, and he will know what to do."
To address the problems asylum seekers experienced in gaining access to the reception center, during 2004, some asylum seekers were being issued with appointment letters when the refugee reception officers were unable to process their applications. These letters, which indicate that the asylum seeker has presented him or herself to the refugee reception office, however, are not provided for under the Refugees Act or accompanying regulations and have no legal standing. Without a legal document, the asylum seeker has no certain protection from potential arrest. Also, the bearer of such a letter is unable to obtain certain social services. A Congolese asylum seeker, who arrived in Johannesburg in December 2003, showed Human Rights Watch an appointment letter issued to him, and explained:
I went to Home Affairs and was given this paper. They said I should return for the Section 22 paper. For a long time the computers were not working. The computers started working from April 2004. I still did not get the permit.
He renewed the paper each time he went to the Johannesburg refugee reception office from December 2003 to July 2004.
The University of the Witwatersrand (Wits) Law Clinic reported in November 2004 that one of its client's appointment letters had been renewed repeatedly for a year and a half, contravening section 22 of the Refugees Act, which states that asylum applicants should be issued with asylum seeker permits.
In addition, between November 2004 and March 2005, the Johannesburg refugee reception office introduced a system of accepting new asylum applications on specific "intake days." According to an official at the office, there were two intake days each in November and December 2004 and one each in January and February 2005. On the intake day of February 4, 2005, approximately 2,000 asylum seekers presented themselves at the office. The DHA official told Human Rights Watch that the next intake day was scheduled in April 2005. Refugee reception officers issue all new asylum seekers presenting themselves on intake days with "tokens" requiring them to come back to the office for their eligibility interview at a later date. This intake system was suspended following a DHA review.
In the last week of April 2005, the Johannesburg refugee reception office began to direct all new applicants to the Pretoria refugee reception office owing to health and safety concerns raised by the local municipal authority. In the meantime, the Johannesburg refugee reception is continuing with its other tasks, such as renewing asylum seeker permits. DHA has established a task force to look for an alternative suitable location for the Johannesburg refugee reception office. As of September 2005, the Johannesburg refugee office was not admitting new arrivals and DHA had not found a new location.
Neither the "tokens" nor appointment letters are legally recognized documents and therefore do not give the asylum seeker legal status in the country. These measures are not in keeping with UNHCR Executive Committee (ExCom) Conclusion No. 35 (1984) recommended that if an asylum claim cannot be decided "without delay," the asylum seeker should be issued with temporary documents to ensure his or her legal protection.
Neither the tokens nor appointment letters are provisional documents sufficient to ensure that the bearer will not risk detention. Asylum seeker permits, as provided under the Refugees Act and regulations, are the only legal documents that afford some legal protection by allowing the bearer to stay in South Africa.
In responding to concerns about access to the Johannesburg refugee office, DHA told Human Rights Watch that it would institute a uniform system on June 30, 2005 across all refugee reception offices in South Africa. Under the new system, reception and interview of asylum seekers should be completed within four or five working days. In addition, DHA said it would recruit fifty permanent staff members across all the five refugee reception offices. However, as of October 2005, the Johannesburg refugee office had not opened its offices to new arrivals thereby implementing the new system.
Corruption in the refugee reception office and the failure by officials to restrict the activities of "brokers" and unofficial "interpreters" further hinder the ability of asylum seekers to gain access to refugee status determination procedures and protection. As an asylum seeker told Human Rights Watch, "Without [bribe] money, I cannot get a paper [asylum seeker permit]." He claims to have paid R400 (U.S. $67) to a person not in uniform at the Johannesburg refugee reception office in order to gain access to the office. Another asylum seeker from the DRC told Human Rights Watch that someone not in uniform at the Johannesburg refugee reception office told him, "If you want a paper, you must pay R 400 (U.S. $67)." When Human Rights Watch asked about allegations of corruption at the Johannesburg refugee reception office, the head of the office would not confirm or deny the allegations.
Corruption is notoriously difficult to prove, for a variety of reasons. Asylum seeker victims of corruption may be reluctant to come forward with their complaints since they are dependent on the very people they may be accusing to grant them legal status to remain in the country. Moreover, until late 2004, officials at the Johannesburg office did not wear nametags, adding to the difficulties for asylum seekers in lodging formal complaints against them. Regardless, however, most asylum seekers and service providers interviewed by Human Rights Watch as well as various reports by the National Consortium for Refugee Affairs, the Human Rights Committee (a South Africa-based NGO), and the Public Protector, an independent statutory body, contend that corruption within DHA as a whole is a problem (see examples below).
The Refugees Act establishes a procedure for refugee reception officers to receive asylum applications presented to them and submit them to a refugee status determination officer. The asylum seeker should be given "notice in writing to appear before a status determination officer for an interview not later than thirty working days after the initial lodging of the application." Additionally, UNHCR's ExCom has stressed that states should ensure that individual asylum seekers are "registered andissued appropriate documentation reflecting their status as asylum seekers, which should remain valid until the final decision is taken on the asylum application."
The refugee reception officer conducts an initial interview to gather the applicant's personal information and reason for seeking asylum and then issues the applicant an asylum seeker permit commonly referred to as a Section 22 permit. It is valid for one month, subject to renewal.
At each renewal, the asylum seeker must return to the refugee reception office. With each visit, asylum seekers may be exposed to corrupt practices. The Forced Migration Studies Programme of the University of the Witwatersrand (Wits) found that every one of the more than fifty applicants interviewed at the refugee reception office in Johannesburg over a two-week period in December 2004 reported engaging in or being approached to participate in corrupt behavior. The study found that each of the various services provided at the refugee reception office, such as acquiring an "interpreter," receiving an asylum seeker permit, and having the permit renewed involved a potential demand for a bribe. The costs of bribes found by the Wits researchers ranged from R 400 (U.S. $67) to R 4,000 (U.S. $667) for interpreters and from R 100 (U.S. $17) to R 800 (U.S. $133) for other "services".
An asylum seeker from Ethiopia told Human Rights Watch:
I paid someone at Home Affairs R 400 (U.S. $67). They guess what to write on the form. Even my name is incorrect. The church said I need a paper to continue living there. They give me money and we give it to someone in plain clothes. I think this is a brokerSometimes they charge R 600 (U.S. $92.31) for applicants from Ethiopia. If you do not pay, you cannot get a paper.
Human Rights Watch discovered that some asylum seekers had paid bribes to acquire a renewal of their asylum seeker permit or to be granted a refugee status document expeditiously by DHA. An asylum seeker from Rwanda told Human Rights Watch:
From the time I began renewing my [asylum seeker] permit since my arrival in the South Africa in 2002, I noticed a number of other applicants receiving the refugee status permit quickly. When I inquired, I was informed that I could get it for a fee. So I paid R 1,000 (U.S. $170) for me and my family.
UNHCR officials have noticed that false documentation appears to be provided by mobile or other informal (and completely illegal) parallel "immigration offices" located near DHA offices and the refugee reception offices, including in Johannesburg. At these parallel offices, pre-processed documents are given out or asylum permits renewed for a fee. There is a semblance of legitimacy to the transactions, although the individuals involved remain-often unknowingly-undocumented since the transactions are never entered into the DHA system.
Response of Department of Home Affairs
DHA has publicly acknowledged the existence of corruption within its ranks and has punished some officials implicated in illegal schemes such as creating mobile or "back door" immigration offices. Two DHA officials, for example, were arrested in February 2005 for offering fake South African identification documents to undocumented Zimbabwean immigrants. More comprehensively, DHA has begun to take steps through a "Turnaround Strategy," announced in November 2003, to reduce the "corruptibility" of its officials. The DHA Director-General has called for a "holistic approach to countering corruption," aimed at stopping the "syndicates that are perpetually corrupting our officials." According to the DHA website, the Turnaround Strategy is "aimed at improving efficiency in the department across all the sectors," including personnel. With specific reference to the problem of corruption, the Turnaround Strategy is to be led by the National Intelligence Agency, with the goals of improving morale and working conditions; educating and motivating DHA officials; dealing with the people attempting to bribe DHA officials and officials seeking bribes; improving service delivery; and establishing a chief directorate to focus on counter-corruption and security. On April 12, 2005, DHA launched the National Immigration Branch as part of the Turnaround strategy to "professionalize the exercising of control over the entry, stay, and departure of foreigners in the country as regulated by the Immigration and Refugee Acts."
Lack of official interpreters
The Refugees Act regulations provide for government-funded interpreters at all stages of the asylum process "where practicable and necessary." UNHCR also makes clear that interpreters are a key component of fair refugee status determination procedures, and stresses in its Handbook on Procedures and Criteria for Determining Refugee Status (hereafter, UNHCR Handbook) that asylum applicants "should be given the necessary facilities, including the services of a competent interpreter, for submitting [their] case to the authorities concerned." The competency of interpreters is not only a matter of their technical linguistic ability, but also a matter of their impartiality, and training in cultural and child-sensitivity in the context of refugee status interviewing.
Despite the regulations and UNHCR's guidance, however, there are no officially recognized interpreters at the Johannesburg refugee reception office. While the refugee reception office in Pretoria employs two official interpreters, an informal network of "volunteer" interpreters in Johannesburg double as intermediaries in and around the refugee reception office. Because of the lack of professional, official interpreters, refugees and asylum seekers who are unable to understand interviews in English are obliged to use the services of these informal networks. DHA acknowledges that these networks are facilitating bribes and accepting monies for services that should be provided for free and rendered by the office itself. The head of the refugee reception office in Johannesburg acknowledged to the Office of the Public Protector that he has, on occasion, found it necessary to "dismiss" several of the informal interpreters who had been taking fees from asylum seekers for their services, and added that the interpreters "are in no manner accountable to the [DHA]."
In September 2004, a DHA official told Human Rights Watch that DHA planned to employ officially recognized interpreters by 2005. As of August 2005, the Johannesburg refugee reception office did not have official interpreters.
Delays in the determination of refugee status
After an asylum seeker has gained access to the refugee reception office and been issued with an asylum seeker permit, procedural delays continue. UNHCR, supported by the UN General Assembly, has consistently noted the need for asylum procedures to be "efficient, expeditious and fair." As part of the Global Consultations on International Protection, UNHCR sought to identify the key elements central to all asylum seeker reception and refugee status determination systems, recognizing the inherent differences in states' capacities and resources. The key elements identified by UNHCR included "stay in dignity, freedom of movement, respect for family life, access to education, access to health, information on procedure and rights in a language [the asylum seeker] can understand, swift and fair processing of cases to address some of the more difficult conditions of reception, and appropriate arrangements to meet special vulnerabilities" [emphasis added]. ExCom Conclusion 30 calls on countries to "allocate sufficient personnel and resources to refugee status determination bodies so as to enable them to accomplish their task expeditiously."
South Africa's domestic refugee law also recognizes the need for refugee status determination procedures to occur with relative speed; as noted above, the regulations to the Refugees Act envision status determinations to be finalized within six months (180 days) of the submission of an asylum application. In practice, however, Human Rights Watch and others have found that this is generally not the case. A survey commissioned by UNHCR in 2003, for example, found that 70 percent of respondents (in this case, all of whom were asylum seekers) had not had their claims adjudicated within 180 days of submitting their asylum applications.
In practice, waiting periods for refugee status determination are often one year or longer. Examples of such lengthy waiting periods include an asylum seeker from Burundi who had been in South Africa since 2001 and a Congolese asylum seeker in the country since 2000, both still awaiting the determination of their status at the time of Human Rights Watch's August 2004 visit. A Burundian asylum seeker applied for asylum in July1997, and as at September 2004 when he was interviewed by Human Rights Watch he was still waiting for a decision on his application. With no access to any form of state-funded social assistance, asylum seekers are left to fend entirely for themselves during the long determination proceedings.
DHA, including an official at the Johannesburg refugee reception office, has acknowledged the problems encountered in finalizing cases within the 180-day period stipulated under the Refugees Act regulations. The long delays in the process have resulted in a national backlog of between 80,000 and 115,000 pending applications. As of late 2004, DHA has, with assistance from UNHCR, embarked on its second project in four years to deal with the backlog of applications at the Johannesburg refugee reception office. In addition, UNHCR and DHA recognize that the staffing at the Johannesburg office was barely adequate to process the large numbers of asylum seekers, and that computer equipment was insufficient and unreliable for processing applications efficiently.
As of November 2004, the number of refugee reception officers in the Johannesburg office increased from five to twenty three, and refugee status determination officers from six to eight, according to a DHA official. However, despite these increases, the continuing backlog of applications and an inefficient system of admitting new applicants indicate that neither human resources nor equipment are yet adequate to meet the need.
The long delays in processing claims in South Africa are of concern in large part because of the precarious legal situation and living conditions in which many asylum seekers find themselves during the year or more that their claims are pending-including the common denial of access to work or study, often based on employers wrongfully refusing to accept a Section 22 permit issued by the DHA that allows asylum seekers to work and study during the refugee status determination period, harassment by police and other government officials, lack of recognition on the part of both public and private authorities of their documents, and difficulties in finding accommodation.
In recounting the problems experienced while waiting for refugee status to be determined an asylum seeker told Human Rights Watch, "Before it was okay to find security guard work. Now you cannot get authorization from the security officers' board to work. They want refugee status." The asylum seeker had been on a Section 22 permit since 2001.
Another asylum seeker from the DRC who acquired an asylum seeker permit in 2003 told Human Rights Watch, "When I went to the licensing office in Johannesburg to register to take a test to be able to drive a lorry, they did not accept the asylum permit.[The authorities] said it was not proper identification. They say I must have refugee status in order to register for the license."
UNHCR recommends that the reception conditions outlined in domestic refugee law "take careful account of the length of asylum procedures." According to the UN agency, the benefits accorded asylum seekers should be "commensurate with the anticipated length of the procedure."
Failure to recognize the legal right to work and study
Under South African law, asylum seekers are permitted to work and study during the refugee status determination period. DHA officials are required to issue asylum seeker Section 22 permit that clearly indicate the bearers' entitlement to work and study.
In the first few years of the administration of the Refugees Act (2000-2003), bearers of asylum seeker permits were not legally entitled to work or study pending determination of status. If a decision was not made within the 180-day period, an applicant could approach the Standing Committee for Refugee Affairs to have the prohibition lifted, and gain permission to engage in these activities.
Following a legal challenge to the prohibition in Watchenuka v Minister of Home Affairs, however, the Standing Committee for Refugee Affairs ruled on March 30, 2004 that all asylum seekers should be allowed to work and study.
All refugee reception offices are required to implement the decision. In theory, therefore, asylum seekers in South Africa now have the legal right to work and study. However, the Johannesburg refugee reception office inconsistently implements the Standing Committee for Refugee Affairs' decision to lift the prohibition on work and study from asylum seeker permits. It appears that refugee reception officers are applying the ruling arbitrarily and in other cases the prohibition is lifted only after bribery or intervention by lawyers.
A DHA official at the Johannesburg refugee reception office assured Human Rights Watch that the prohibition was no longer in effect. Although the prohibition was deleted on some permits issued in June 2004 in Johannesburg, Human Rights Watch viewed others on which the prohibition is still firmly imprinted. Service providers told Human Rights Watch that they continue to receive cases where asylum seeker permits are issued with the prohibition intact. Although precise statistics are unavailable, estimates from the legal clinic of the University of the Witwatersrand as of February 2005 are that more than half of newly issued permits still have the prohibition imprinted on them. In most instances, the prohibition will only be removed if the asylum seeker specifically requests its removal (through the assistance and intervention of lawyers or NGOs). This only occurs, however, if the asylum seeker is aware that the law has been changed.
An asylum seeker from Burundi who arrived in South Africa in 2001 told Human Rights Watch:
I am looking for a loan to start a small business, but I cannot because the permit says I cannot work. Jesuit Refugee Services [JRS] cannot give me a loan because they say my goods will be confiscated. Now I do not work. I do not know where to get food.
The failure to implement the legal right to work and study uniformly and to remove the prohibition on work and study from asylum seeker permits over a prolonged period prevents asylum seekers from engaging in legitimate economic activity to provide for their basic welfare needs. Since South Africa does not grant asylum seekers access to state financial support or assistance with food and shelter, denial of the right to work can threaten the health and life of particularly destitute asylum seekers.
Hearing before the refugee status determination officer and determination of claims
Once an asylum seeker has seen a refugee reception officer and been issued an asylum seeker permit, the officer transmits the applicant's file to the refugee status determination officer, who in turn makes a determination to grant refugee status. Under the Refugees Act regulations, the hearing-effectively the asylum seeker's second interview-should occur within thirty days of the completion of the initial application.
The refugee status determination officer interviews the asylum seeker to verify the claim for asylum. Based on the evidence presented, the officer may either grant the applicant refugee status or deny the application on grounds that it is "manifestly unfounded, abusive or fraudulent", or simply "unfounded." Where asylum has been denied, reasons must be furnished to the applicant in writing.
Under South Africa law, to be recognized as a refugee, the refugee status determination officer must find that the individual meets any one of the three components of South Africa's refugee definition:
(a)[a person who,] owing to a well-founded fear of being persecuted by his or her race, tribe, religion, nationality, political opinion or membership of a particular social group, is outside of the country of his or her nationality, and is unable or unwilling to avail himself or herself of the protection of that country, or, not having a nationality and being outside the country of his or her former habitual residence is unable or, owing to such fear, unwilling to return to it; or
(b)[a person who,] owing to the external aggression, occupation, foreign domination, or events seriously disturbing or disrupting public order in either a part of the whole of his or her country of origin or nationality, is compelled to leave his or her place of habitual residence in order to seek refuge elsewhere; or
(c)[a person who] is a dependant of a person contemplated in paragraph (a) or (b).
The refugee definition in the Refugees Act incorporates terms from both the 1951 UN and OAU Refugee Conventions. This is important since the OAU definition expands the 1951 Refugee Convention's individualized persecution standard by also including flight caused by (among others) "events seriously disturbing the public order." This is widely interpreted to mean civil conflict and war-the situations from which most successful asylum seekers in South Africa have fled. The OAU definition further recognizes as refugees people who fled conflict "in either a part or the whole of a country." This means, in theory, that an asylum seeker from eastern DRC (for example) would not necessarily first have to seek safety (a so-called internal flight alternative) in Kinshasa before being considered as having a legitimate claim to protection in South Africa.
No other criteria besides the two definitions are used in determining refugee status. Commentators suggest, however, that when full written decisions are issued, which is not always the case (see below), the definitions are generally interpreted broadly.South Africa was one of the first states to accept suggested guidelines on gender-based asylum determinations. In keeping with the principles of equality outlined in the South African constitution, the Refugees Act also defines "particular social group" quite inclusively; including, among others, gender, sexual orientation, disability, class and caste.
Appeal and review of refugee status determination decisions
The Refugees Act sets up a formal structure for administrative appeals and review of negative asylum decisions (a provision absent in the previous Aliens Control Act with regard to any immigration decision).
The Standing Committee for Refugee Affairs reviews decisions by the refugee status determination officers of cases found to be manifestly unfounded, abusive or fraudulent. This body can either set the decision aside or confirm it the refugee status determination officer's decision.
An applicant is entitled to appeal the decision before the Refugee Appeals Board where a claim for asylum has been rejected because it is simply "unfounded." Between receiving the initial rejection and formally lodging an appeal, however, DHA retains the asylum seeker's permit. During this period the individual has only the rejection letter to indicate his or her legal status in the country. A notice of appeal must be lodged with the Refugee Appeals Board within thirty days from receipt of the rejection. Upon lodging an appeal, the asylum seeker is reissued his or her original asylum seeker permit.
Lack of legal representation
A legal representative may assist in both the administrative appeals and judicial review processes. But the Refugees Act does not provide for free legal assistance to applicants. Service providers expressed concern to Human Rights Watch that although many rejected asylum seekers do exercise their right to appeal, the majority do not have access to legal representation or assistance during the process, largely because they are unaware of their right to counsel, cannot afford it, or do not know how or where to find pro bono or low-cost legal assistance. A member of the Refugee Appeals Board confirmed to Human Rights Watch that the majority of refugees do not have legal representation when they appear before the board.
Growing backlog of appeals
On balance, the Refugee Appeals Board does not hear more than seven appeals a month from appellants registered at the Johannesburg refugee reception office. This is both because of the limited number of first decisions taken, and also the board's own limited capacity since it has received on average forty appeals per month since 2000. Since a large proportion of rejected cases are now being appealed, however, a significant backlog is forming within the appeals board, in addition to the backlog of original applications.
Since its inception in 1997 (the year South Africa began accepting asylum applications on an individual basis), the Refugee Appeals Board has received a total of 13,600 appeals, of which approximately seventeen percent (2,361 cases) have been successful. Since the implementation of the Refugees Act in April 2000, the appeals board has received 2,161 new appeals (which are part of the total received since 1997). At the time of writing, 1,721 of these cases have been finalized, with approximately twenty-one percent (365 cases) approved. More than 400 cases are still pending.
The board comprises five adjudicators. One or two adjudicators generally preside over a hearing-though all five members will eventually make a decision on the case. Lawyers representing asylum-seeking clients have raised concerns that, despite rules requiring a record of proceedings, there is no formal record keeper during the hearings, and that this may prejudice the outcome of a decision. The board convenes once a week to decide on cases. According to the Wits Law Clinic, the appeals board renders its decisions in a relatively short timeframe. However, delays occur in acquiring files from the department, as well on the part of the refugee status determination officers in relaying the appeal board's decision to the asylum seeker.
Once the appeal board has considered a case, it may confirm, set aside, or substitute the decision of the refugee status determination officer. According to the South African constitution, everyone-including an asylum seeker-has the right to just administrative action, which includes judicial review and the right to appeal. The rules of the refugee appeals board further guarantee the right to judicial review of determinations. Thus asylum seekers who have had their applications rejected by the appeals board may bring their case before a local high court. Doing so requires going through another lengthy and complicated process, which is rarely used by asylum seekers. Moreover, the Refugee Appeals Board has shown a preference to rehear any case that would otherwise be brought before the national judiciary.
Although an appeal is an inquiry on a matter of law, in South Africa all issues of law and fact are newly considered at the asylum seeker's appeal. This in part recognizes the inherent inadequacies of decision-making in the first instance, in that the appeal is sometimes de facto the first substantive examination of the asylum seeker's full application. Primary decisions are often based on less-than-complete information. According to a lawyer from the only free legal service provider for refugees and asylum seekers in Johannesburg (who appears before the refugee appeals board on a regular basis), and through Human Rights Watch's examination of files, in some cases files contain only the eligibility form, completed by the refugee reception officer when the asylum seeker first presented him or herself at refugee reception office. The Wits Law Clinic reports that it has never seen a record of the appeals board using the refugee status determination officer's initial inquiry into the merits of the claim. Without full documentation (namely, on what basis the refugee status determination officer decided to decline the application), it is difficult to properly appeal a case.
Refugee status entitlements
"The [refugees] have entitlements which they do not enjoy."
- Co-ordinating Body for Refugee Communities, Johannesburg, July 9, 2004.
Once asylum seekers are recognized refugees in South Africa, they are entitled to documents that establish their identity as protected persons, as well as to several entitlements concomitant with having obtained refugee status in the country.Unfortunately, as with many of the steps along the way to achieving recognition as a refugee, obtaining identity documents is often very difficult. In addition, refugees often face obstacles in enjoying the entitlements they should be afforded under South African and international refugee law.
The Refugees Act provides that a refugee "enjoys full legal protection, which includes the rights set out in [the Bill of Rights] of the [South African] Constitution," and "is entitled to seek employment and to the same basic health services and basic primary education which the inhabitants of the Republic receive from time to time." In general terms, with regard to the rights to work, to health services and primary education, these provisions bring South Africa's domestic law in accord with obligations under the Refugee Convention. These are: to give refugees the same treatment as nationals of South Africa with regard to elementary education; to give them the same access to rationed products or to public relief and assistance as is afforded to nationals; and to give refugees the most favorable treatment afforded to nationals of a foreign country in the same circumstances as regards the right to work.
Documentation and duration of refugee status
The formal recognition of refugee status is acknowledged in a permit on a single A4 piece of paper similar to the asylum seeker permit. The refugee status permit is valid for two years. The permit further states that the refugee shall apply for a refugee identity document within fourteen days of receiving the permit. The issuance of the refugee identity document is not automatic on receipt of the refugee status permit. The refugee is left carrying the permit, which is not readily accepted by potential employers and private bodies, until he or she is able to secure the refugee identity document from the head office of DHA in Pretoria.
As one refugee told Human Rights Watch, "one has to apply for a refugee identity document which is supposed to take three months, but it takes six to twelve months."In June 2005, Human Rights Watch interviewed a refugee who has been waiting since 2001 for DHA to issue him with a refugee identity document. He said:
I was granted status in November 2001. I applied for a refugee identity document [ID]I visited the Braamfontein office every two and in some cases three months to find out if my ID had arrived. This went on for a year. Towards the end of the first year, the office told me that they could not give me an ID because my [refugee status] permit would be expiring in a year. They said I should wait until I am granted my new status.
My status expired in November 2003. I submitted my letter requesting that my refugee status be renewed three months before the date of expiry. On the date of expiry, my refugee status permit was extended for three months and at other times two months. Each time I had to travel from Pretoria to Johannesburg. They did not tell me anything when they extended my permit. I could not ask questions as to why my refugee status was not reinstated for the full two years. It is difficult. You stand in the queue, they take your paper with other papers, and they extend it in the office and give it back to you. There is no chance to ask questions. I finally got my renewed status for a further two years in November 2004.
I again applied for my ID once I had the refugee status permit reinstated. I went to the office in February 2005. The office told me it was not ready. I returned to the office in March 2005. Still the ID was not ready. I decided to find help. I approached the human rights lawyers [LHR]. They are now helping me. It is now June and I still do not have the ID.
It is difficult to find a job with only the paper. They ask you for an ID.
A 2003 study commissioned by UNHCR found that most refugees interviewed were unable to secure employment and open a bank account with only a permit and without a refugee identity document. As a refugee with a formal refugee status permit explained to Human Rights Watch: "I wanted to open a banking account. I went to one of the big banks in South Africa. They wanted South African identification."
Nothing under international refugee law or in the Refugees Act suggests that refugee status should be anything other than continuous, unless and until the provisions analogous to the Refugee Convention's 'cessation clauses' are invoked. It would therefore appear that the Refugees Act and its regulations are being misapplied, with officials forcing refugees to renew the refugee status permits periodically.
Regulation 15(2) and (3) provide:
The refugee identification document will be valid for an initial period of two years from the date asylum is granted
To avoid lapses between the date of expiry and any renewal of the identity document, an individual must apply to the Standing Committee [for Refugee Affairs] for renewal of the document
A refugee is required to re-apply ninety days prior to the expiration of the refugee identity document. This requirement was apparently intended merely to monitor the whereabouts and confirm the continued presence in South Africa of refugee identity document holders, not to suggest that refugee status must be periodically reexamined. In practice, however, DHA requires a refugee to submit a letter re-asserting his/her claim for refugee status and requesting that the refugee identity document (or sometimes, erroneously, even the refugee status permit) should be extended. The Standing Committee for Refugee Affairs will then consider whether or not the applicant will remain a refugee "indefinitely", which has been qualified by the Refugees Act as meaning "in the foreseeable future." If a favorable determination on this matter is not made, a recognized refugee may be required, in effect, to re-submit his or her claim every two years.
Such a refugee in Johannesburg, for example, must appear at the Johannesburg refugee reception office where the claim will be re-examined without an interview. The identity document (or sometimes, erroneously, the refugee status permit) will be extended for a further two years or withdrawn. Withdrawal could mean that the refugee would be treated thereafter as merely an "illegal foreigner" subject to arrest and deportation. DHA was unable to tell Human Rights Watch how many refugees, if any, in South Africa have had their status withdrawn in recent years and on what grounds, other than failure to appear.
The need to renew the refugee identity document every two years in the manner proscribed by the regulations effectively means that, for some refugees, their status in South Africa is temporary in nature.
Where renewal of refugee status and/or a refugee identity document is not automatic, but requires the individual to repeatedly remake his or her case in a substantive way, even if only through a letter reasserting the reasons why he/she needs protection, the host State is ignoring the authoritative guidance of UNHCR on implementation of the Refugee Convention. South Africa's current practice therefore should be brought into line with UNHCR guidance and the overwhelming majority of state practice. Such reform would also be a matter of efficiency in a system already struggling to find the capacity to examine refugees' initial claims.
This need to renew refugee status repeatedly also creates a sense of insecurity and is an obstacle to integration into the community. As outlined in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, there is a "need to provide refugees with assurance that their status will not be subject to constant review." Both the 1951 Refugee Convention and the UNHCR Statute, for example, call upon governments to "promot[e] the assimilation of refugees, especially by facilitating their naturalization." The OAU Refugee Convention calls upon member states to "use their best endeavorsto secure the settlement ofrefugees."
At the time of the Human Rights Watch interviews, refugees expressed concern that refugee identity documents had a different color and appearance than identity documents issued to South African citizens and permanent residents. Refugee documents are maroon in color, in the form of a card that opens with a photograph of the bearer on one side and his or her personal details on the other. Some refugees say that their documents appear "fake" (simply because unfamiliar) to uninformed employers, civil servants, landlords, and others.
According to the UNHCR office in Pretoria, DHA will begin to phase out the existing refugee identification documents in favor of a generic "smart card" in the second half of 2005.
A refugee can apply for permanent residence if he or she has been living in South Africa on a refugee status permit for a minimum of five consecutive years. For a recognized refugee to receive a permanent residence permit, the standing committee for refugee affairs must have certified that that person will remain a refugee "indefinitely."
On March 30, 2004, the Standing Committee for Refugee Affairs published a decision intended to circumscribe the conditions under which certification shall be issued, namely: "Where the appellant is likely to remain a refugee for the foreseeable future and the "foreseeable future" should be one year."
The Standing Committee for Refugee Affairs further recommends an amendment to the law to allow refugees with status to apply for permanent residency after five years in South Africa without having to undergo the certification process. An official from DHA told Human Rights Watch that this amendment is still under review. The regulations to the Refugees Act also note that the Standing Committee for Refugee Affairs may, in certain exceptional cases, waive the certification process altogether and declare at the time refugee status is granted that the refugee will remain a lawfully present refugee in South Africa indefinitely, even if circumstances in the country of origin have fundamentally changed. According to legal service providers, however, the Standing Committee for Refugee Affairs rarely-if ever-uses this power.
As of January 2005, following the intervention of NGOs, the Minister of Home Affairs, recognizing that refugees in protracted refugee situations "have limited choices and are generally not able to pay the prescribed fees," decided to "exempt all refugees who have been certified as likely to remain refugees indefinitely from payment of fees for an application of permanent residence." Prior to this waiver, certified refugees wishing to apply for permanent residence status were required to pay the prescribed application fee as other non-nationals of R 16,000 (U.S. $2,670).
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.
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."
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. 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). 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.
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." He told Human Rights Watch that he paid R 140 (U.S. $24) for the release of two friends who were charged with being in South Africa illegally.
An asylum seeker from Ethiopia told Human Rights Watch of the many times that police have harassed him. "The first time the police stopped me they asked me what this paper [asylum permit] was. They asked me where I got it. They said that I must make a plan for them not to worry me again. My friend told me that 'a plan' means money."
Asylum seekers and refugees who assert their rights may be more likely to end up in detention. A refugee related to Human Rights Watch his treatment by the police on August 22, 2004:
At around I decided to go downstairs to buy something to eat. I entered the lift, where there were six people; two of them were police officers. I greeted them. One of the police officers asked me for my papers. He searched me and squeezed my genitals. I asked him if this was the procedure of the police. I produced my permit. He took it and kept it. When we were in the foyer of the building, I told the police officer that I knew my rights. They said to me that I thought I know too much; this is South Africa. The police ordered a civilian who happened to be in the foyer to take me out to the police car. I protested. The police officer slapped me on my face. The other hit me under my eye with his head. The one police officer held me on one side and dragged me to the police car, which was some 100 meters from the entrance to the building. I and four other men, who it transpired were arrested by the same police, were taken to the Jeppe police station. In the van, the other four men proposed that we each contribute R 20 (U.S.$ 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.
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.The police asked me how much money I had. I said I had R 400 (U.S. $67). He took the money from me.
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, theysaid "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.
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.
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.
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, 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.
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.
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.
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. If the individual is found to be in South Africa illegally, he or she may be deported. 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."
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 Center
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. 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".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.
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."
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.
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". 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."
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. 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. However, since this order was made, persons who are being threatened with deportation continue to be held for periods in excess of thirty daysplacing DHA in contempt of the court order. The head of Lindela acknowledged that before August 2004 prolonged detentions were common.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. 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." Because such detention is "inherently undesirable," it "should only be resorted to in cases of necessity." 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. More generally, the guidelines suggest that "there should be a presumption against detention."
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.
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. Section 2 of the Refugees Act states that, "no person may be extradited or returned to any countryif as a result of such extradition of returnhe or she may be subjected to persecutionor 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.
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.
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 childwho is considered a refugee in accordance with international and domestic lawshall, whether accompanied or unaccompaniedreceive 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 asylum and other refugee children. The guidelines on asylum-seeking children define an unaccompanied child as "a person under the age of eighteen yearswho is separated from both parents and is not being cared for by an adult who by law or custom has responsibility to do so." Children should have access to social services such as education and health care regardless of their status. Further, they should be given priority in the refugee status determination process, and, according to UNHCR's Executive Committee reception standards, their particular vulnerabilities and needs-including education and medical attention-should be accommodated.
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.
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. 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. In addition, section 32(2) also provides that the Children's Court "may order that a childbe 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). 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 LindelaDeportationCenter
Under the Refugees Act, children should only be detained as a measure of last resort, and for the shortest appropriate amount of time. This wording reflects language in the UN Convention on the Rights of the Child. UNHCR's guidelines on refugee children and on detention of asylum seekers state unequivocally that "children who are asylum seekers should not be detained."
While an immigration official at the Lindela deportation center told Human Rights Watch that "[it] does not detain children there," 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. 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.
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. During the legal action, the children were instead held in a "place of safety," 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.
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. 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. 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. 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.
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. 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.
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. 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.
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. There appears to be no structured system on tracing family members of unaccompanied children for the purposes of reunification. 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.
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.
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. 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. 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 usefulWhat is a paper with an empty stomach?"
- UNHCR, Pretoria, February 18, 2005
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]."
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."
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."
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. 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.
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.
- 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;
- Recognized refugees must also enjoy the same rights as nationals to public relief and social security;
- 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.
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. 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. As 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.
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.
Access to housing
"You will find that the shelters are 'full', even if there is spaceyou 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. 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.
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.
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.
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. 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. 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. 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. 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.
Shelters predominantly for South Africans charge daily rates of between R 3 (U.S. $0.50) and R 10 (U.S. $1.67). 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."
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.
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. An asylum seeker from Burundi told a Human Rights Watch: "Once my baby was sick, I went to JHB GeneralHospital. They told me they cannot help me unless I pay R 1,800."
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.
As asylum seeker and refugee status permits are by law temporary residence permits, 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.
UNHCR has been active in South Africa for over a decade, following the "Basic Agreement" on the role of the agency in the country, signed by UNHCR and the South African government in 1993. Since then, South Africa has acceded to the 1951 Refugee Convention. As elsewhere, the agency has identified voluntary repatriation, local integration, and resettlement to another country as "durable solutions" to the problems of refugees and asylum seekers in South Africa, including those based in urban areas.
Unlike many other African countries (where UNHCR, under its mandate, takes a leading role in the absence of a national framework to meet obligations to protect refugees), the South African government has a sufficient legal framework to manage its own refugee and asylum system. Recognizing, however, that the capacity of South Africa's refugee and asylum system is severely lacking in many respects, UNHCR directs the bulk of its activities toward building capacity within government (as well as among its implementation partners, service-providing NGOs). The agency particularly focuses on improving equipment and human resources, including training and "professionalisation" of refugee and asylum services. As a follow-up to the first Backlog Project of 2000-2001, UNHCR has further assisted DHA by providing it with additional computers to manage the backlog of asylum applications yet to be finalized. The UNHCR began implementing a training program for approximately two hundred persons, including immigration officers, law graduates and researchers from all areas of the country on recognizing refugees, to avoid problems of unlawful and arbitrary detention and refoulement to tackle the backlog of cases. As noted earlier, the agency believes that cases of refoulement, as well as the detention of refugees and asylum seekers at Lindela, are largely a consequence of ignorance and lack of training rather than deliberate policy. The net effect of UNHCR's previous training programs, however, is unclear, as there has been no post-training evaluation.
UNHCR also seeks to provide refugees and asylum seekers access to services and public relief, and to promote the local integration of refugees into South African society. On a limited scale, therefore, the agency provides short term, emergency assistance to some refugees and asylum seekers, including assistance to new arrivals for a maximum of six months.
The bulk of UNHCR's financial assistance for refugees and asylum seekers in South Africa is channeled through a few key NGOs-the agency's implementing partners. In Johannesburg these are Jesuit Refugee Services (JRS) for service provision and, at the time of writing, the Wits Law Clinic for legal protection. Thus education for children, vocational skills courses, accommodation, and legal advice are some of the services to which refugees and asylum seekers with documents do have access.
While this is an important contribution towards the welfare of refugees and asylum seekers, many NGOs with whom Human Rights Watch spoke believe that UNHCR's funding of services is insufficient to meet the overwhelming need, particularly since nearly all refugees and asylum seekers in South Africa live in costly urban areas such as Johannesburg. It would appear that certain restrictions formulated by UNHCR on access to assistance, particularly the six-month time limit, do not take into account the amount of time it takes to gain access to the refugee reception office and acquire proper documents, as well as the inability of refugees to benefit fully from the rights to which they are entitled. Therefore, emergency funding for accommodation is in practice limited to a maximum of three months for new arrivals, to benefit the largest number of those in need. Thereafter, the majority of asylum seekers must fend for themselves. Refugees told Human Rights Watch that UNHCR's assistance was insufficient; they believed that the role of the agency was "to assist refugees and asylum seekers as a humanitarian organization." UNHCR's 2005 Global Appeal report on South Africa says:
Funding constraints oblige UNHCR to apply extremely restrictive criteria to ensure that assistance is provided only to those in greatest need. As a consequence, many vulnerable refugees who would in the past have qualified for assistance now remain without support. This problem is compounded by the increasing impact of HIV/AIDS on refugees and asylum-seekers, further stretching the capacity of UNHCR and its partners to provide adequate assistance.
UNHCR has recognized some problems inherent to refugee status determination procedures in South Africa. According to the UN agency, the key concerns are how quickly determinations are made, and how the most vulnerable cases are addressed. In an attempt to assist asylum seekers in gaining access to refugee reception offices, UNHCR has helped to expedite asylum applications where medical treatment is urgently required. However, given the once again increasing backlog and continual delays, UNHCR will need to do more in concert with DHA (such as further trainings, for example) if the refugee status determination process is to become part of a system of effective protection in South Africa. UNHCR has also rightly recommended to DHA that it employ more staff to increase effectiveness and efficiency in refugee reception offices.
UNHCR also plays an advocacy role, engaging in awareness-raising campaigns through which it works to inform relevant government departments of their roles and responsibilities in relation to refugees and asylum seekers. For example, a manual on the rights of the refugee child, geared toward social workers, was launched in March 2004. The manual discusses international and domestic laws pertaining to the rights of foreign children (including refugees and asylum seekers) as well as the various issues that arise specific to this particularly vulnerable group, and then presents the most appropriate ways for social workers to assist them. UNHCR envisages that, through such campaigns, the various South African government departments addressing welfare issues will begin to ensure that refugees and asylum seekers, including children, are included in accessing the services to which they are entitled.
During 2004-2005, UNHCR is also assisting with voluntary repatriation of Angolan, Congolese and Rwandan refugees from South Africa and with the processing of a limited number of emergency resettlement cases from South Africa to third countries.
A number of refugees and asylum seekers interviewed by Human Rights Watch were aware of the presence of UNHCR in South Africa, but were not sure where the agency's offices were located and were unclear about the limited service-provision role of the agency in the country. The agency has only one office in the whole of the country, the regional office for the Southern Africa region, located in Pretoria, the administrative capital of South Africa. It maintains a staff of thirty. As one refugee observed, "I know they [UNHCR] help people, but it is difficult to find them."
The Refugees Act is a vast improvement over previous legislation in South Africa. It formally recognizes refugees and asylum seekers as a group entitled to international protection. The Refugees Act outlines the rights and obligations of refugees and asylum seekers and creates relevant institutional bodies such as the Standing Committee for Refugee Affairs and the Refugee Appeals Board, as well as formalizing procedures for refugee status determination, documentation, appeals, and judicial review.
However, in practice there are significant disparities between the law as it is outlined in the Refugees Act and its regulations (as well as in the South African constitution and the various international refugee and human rights conventions to which South Africa is a party), and its implementation.
In Johannesburg, asylum seekers encounter significant obstacles in attempting to gain access to asylum procedures. This impedes their ability to enjoy protection through the possession of asylum seeker and refugee documents. It further hurts their ability to earn a livelihood through their legal right to work. Even with the relevant documents in hand, many asylum seekers face the constant threat of harassment, mistreatment, and unlawful arrest and detention.
The government's obligations under international refugee and human rights law and the South African constitution, founded on the principles of non-discrimination and dignity, place a duty on the state to create an enabling environment that allows all persons, including refugees and asylum seekers, to have access to services. The state has a duty to protect the rights of children, particularly unaccompanied children seeking asylum, which includes providing special assistance at the refugee reception offices and access to services such as education and suitable accommodation. UNHCR, which is charged under its mandate with protecting refugees and asylum seekers, should increase its assistance to the South African government to better coordinate policy and administration throughout its various government agencies, (such as the Departments of Health, Social Development and Education) and so to facilitate access to services and assistance for refugees and asylum seekers without discrimination.
This report was researched and written by Nobuntu Mbelle, consultant in the Africa division of Human Rights Watch. Additional research and writing was provided by Erin Patrick, consultant to the Africa division. It was edited and reviewed by Georgette Gagnon, deputy director of the Africa division; Diane Goodman, former director of refugee policy; Ophelia Field,former acting director of refugee policy; Bill Frelick, director of refugee policy, and Tony Tate, researcher in the children's rights division. Wilder Tayler, legal and policy director, and Iain Levine, program director also reviewed the report. Lizzie Parsons and Nicholas Galletti, associates in the Africa division, assisted in the production of the report. Human Rights Watch acknowledges the assistance of Professor J Klaaren of the University of Witwatersrand for reviewing the legal sections.
Human Rights Watch is grateful to Ford Foundation for funding its work in South Africa, and to the Lawyers for Human Rights, Wits Law Clinic, Jesuit Refugee Services in Johannesburg, and, above all, the refugees and asylum seekers interviewed in this report.