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I. Summary

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 applications¾ 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.