In late 2005 Human Rights Watch reported on the failings of South Africas asylum system.213 The report described how the system prevents many asylum seekers from lodging their claims, how it fails to efficiently and fairly adjudicate claims, and how its failure to respect asylum seekers rights to documentation confirming their status creates a general sense of insecurity and leads to arbitrary arrest, detention, and unlawful deportation.
Throughout 2006 and 2007 South African civil society closely monitored, advocated, negotiated, and litigated to try to improve various aspects of the struggling asylum system. Despite these efforts, the South African government continues to violate asylum seekers procedural rights, including their right to adequate documentation confirming their status, and their right to have their substantive claims properly adjudicated.214
An important part of the ongoing challenges faced by the system is the continuous massive backlog of cases. Despite two initiatives which have attempted to reduce this number, any progress made risks being rendered meaningless by the number of recent new applications and the asylum systems incapacity to process them. With a new backlog of over 100,000 cases, there is little hope that the asylum system will be able to respond to the significant challenges it faces.
Under South African and international law it is unlawful to deport anyone who has expressed an intention to claim asylum or anyone who has already made an asylum claim. Deporting asylum seekers violates the most fundamental principle of refugee law, the principle of non-refoulement. A persons right not to be refouled is the right not to be forcibly returned to a place where she would face a threat of persecution or a real risk of torture or cruel, inhuman or degrading treatment or punishment.215
In 2005 UNHCR told Human Rights Watch that asylum seekers and refugees had been deported out of the Lindela Repatriation Centre because staff working there were unaware of procedures and standards that govern the legal status of refugees and asylum seekers.216
A leading South African report of 2007 concluded that the South African deportation system continued to be dysfunctional, violating a wide range of procedural rights and leading to the unlawful detention and deportation of asylum seekers.217 Many of the deportation systems failings can be traced back directly to the failings of the asylum system.218 Little has changed since then.
Ongoing Failings in South Africas Asylum System Contributing to a Generalized High Risk of Refoulement
Entry into South Africa and risk of refoulement from the border areas
Zimbabwe shares 225 kilometers of porous border with South Africa. The vast majority of Zimbabweans claiming asylum in South Africa enter the country overland. Because of the limited choice of roads, they mostly enter through or near the Beitbridge-Musina border post, passing either through the official border post or through an informal border crossing. In both cases Zimbabweans prefer not to claim asylum at the border,219 but instead lodge their claims directly at one of South Africas five Refugee Reception Offices (offices) in Cape Town, Durban, Johannesburg,220 Port Elizabeth, or Pretoria.221
South African law provides that asylum seekers can apply for asylum by claiming asylum either at a border post or after apprehension by police, military, or immigration authorities,222 in which case immigration officials should issue them with a non-renewable 14-day asylum transit permit,223 during which time they should officially register their claim at one of the five offices in-country. Alternatively, the law allows border crossers who have not claimed at the border and who are not apprehended to apply without delay directly at one of the five offices.224
This system is designed to ensure that people wishing to claim asylum, whether entering the country through a formal border post or not, are given an official document (the 14-day asylum transit permit) which protects them against arrest and deportation until they have lodged their asylum claim at one of the five offices.
Despite this system, recent reports have documented that Zimbabweans in the border areas, particularly in and around Musina, who intend to claim asylum in-country face serious violations of their rights, including arbitrary arrest, detention, and unlawful deportation constituting refoulement.225
Zimbabweans efforts to seek asylum are sometimes thwarted because many immigration officials and the police are insufficiently trained in basic refugee law and related procedures; ad hoc,fast-track deportations in the border region also limit Zimbabweans opportunities to claim asylum.226 Border police sometimes view legal procedures as too cumbersome and time-consuming or irrelevant given what they consider to be the more pressing priority of protecting the border.227
This climate is undoubtedly reinforced by government language, as reflected in the comments made by border officials at the border noted earlier,228 that Zimbabweans cannot possibly have valid asylum claims.
Absent proper training and clear directions to officials working in the border areas on basic refugee law and on how Zimbabweans can lodge asylum claims, such unlawful arrest, detention, and deportation in the border areas will continue. Given that many Zimbabweans wishing to claim asylum in-countryincluding thousands targeted by Operation Murambatsvinahave potentially valid refugee claims, current deportation practices in the border areas will inevitably involve numerous violations of the principle of non-refoulement.
Once in-country, asylum seekers should register their claim without delay at one of the five Refugee Reception Offices. If, as explained above, a border guard or immigration official has issued them with an asylum transit permit , they should apply for asylum at one of these offices within 14 days.
Refugee Reception Officers (RROs) who work in the five offices issue asylum seeker permits.229 Valid for renewable three month periods,230 these permits are far more than just a piece of paper: they give asylum seekers legal status in South Africa, protecting them from arbitrary arrest, detention, and deportation, and entitling them to work and study in South Africa.231
However, many Zimbabweans find it impossible to obtain their asylum seeker permit within the allotted time period of the 14-day asylum transit permit. This is because of the lengthy queues and other difficulties they face when trying to enter Refugee Reception Offices, problems that have existed and have not improved for a number of years.232 Access is particularly difficult in the Pretoria and Johannesburg offices, where Zimbabweans are only admitted on Thursdays and Fridays.233 If the 14 days have expired and they do not have an asylum seeker permit, they become undocumented and, therefore, illegal foreigners. They are then liable to arrest and deportation.234 Similarly, if a person has entered the country through an informal border crossing, manages to reach one of the five offices without being stopped by the police (and, therefore, does not have a 14-day asylum transit permit) but is then unable to get inside the office, they also become an illegal foreigner, liable to arrest and deportation.
As in the case of Zimbabweans wishing to claim asylum being deported from the border areas soon after they have entered the country, the same happens to Zimbabweans who manage to reach the gates of the Refugee Reception Offices but are unable to get inside to register their claims; the police then arrest them for being undocumented.
A Department of Home Affairs (DHA)-funded study estimated in September 2007 that 470 asylum seekers were being turned away every day at the five Refugee Reception Offices.235
The South African authorities are bound to ensure that asylum seekers can access the documentation to which they are entitled under the Refugees Act. The South African Constitution provides that everyone has the right to access administrative procedures that are reasonable and procedurally fair, and that national legislation, in this case the Refugees Act, must give effect to this right.236 However, as explained above, the procedures in (and adopted under) the Refugees Act are not being enforced. In failing to enforce applicable procedures the South African authorities are directly responsible for heightening the risk of refoulement of Zimbabwean asylum seekers.
The law provides that an RRO must issue an asylum seeker with an asylum seeker permit.237 For a number of years the Refugee Directorate failed in many cases to issue these permits, but rather issued appointment slips which required the person to return to the same office after anything from a few days to six months.238 This practice was successfully challenged in court,239 but was replaced by an even more questionable practice of verbal appointments, which are given to the vast majority of applicants in place of the asylum seeker permit to which they are entitled by law.240
Currently, South Africa has one official detention center, The Lindela Repatriation Center, where illegal foreigners are detained while awaiting deportation.241 Officials at the center, located 30 kilometers from Johannesburg, have said that they do not recognize the validity of any document other than the asylum seeker permit.242 Therefore, an asylum seeker with only a verbal appointment who is transferred to Lindela will likely be deported, an act that violates the prohibition on refoulement.243
When asylum seekers are given an asylum seekers permit with an expiration date (usually after three months) or a verbal appointment to return, they must return to any of the five Refugee Reception Offices on the correct date. If they do not do so, they become undocumented and liable to arrest and deportation. However, instead of gaining rapid access to the offices, they must once again stand in the standard queues, together with new claimants. Human Rights Watch heard from numerous Zimbabweans that they had repeatedly tried to renew their permits, but that because of the length of queues they had been unable to get into the offices, even after standing and sleeping in line for 24 hours or more.244
Aside from the cost and time involved in reaching one of the offices, many Zimbabweans cannot afford to lose a precious days work or even a job because of being absent from work for an entire day, especially if there is no guarantee that they will gain access to the office at the end of the wait. In such cases they become undocumented and through no fault of their own run the risk of arrest and deportation.
The South African authorities have an obligation to ensure that asylum seekers can renew their documentation without facing unfair procedural obstacles. By failing to put in place efficient procedures, they heighten the risk of refoulement of Zimbabwean asylum seekers.
Obstacles to Gaining Access to Refugee Status Determination: Delays in Processing Claims, Low Quality Decision-Making, and Limits to Appeals System Resulting in Risk of Refoulement
The 1998 Refugees Act provides that a Refugee Status Determination Officer (RSDO) will promptly review an asylum claim lodged with an RRO. However, there is an ongoing shortage of RSDOs; the DHA-funded study said that the government needed at least another 100 RSDOs in 2007 for its asylum system to function properly whilst a separate independent study accepted by the DHA says a further 180 are needed.245 This shortage continues to lead to long delaysmeasured in years rather than monthsbefore an RSDO reviews an asylum claim.246 While the claim is pending, asylum seekers with asylum seeker permits or with verbal appointments must return regularly to the office to renew their permit or verbal appointment. On each occasion they face the same obstacles, constantly running the risk of becoming undocumented because of difficulties in gaining access to the office.
Refugee law is complex and requires well-trained officials who are able to judge the applicants story against applicable refugee and human rights law. Because South Africas asylum system does not provide asylum seekers with legal aid, the vast majority of asylum seekers do not have a lawyer. Without a lawyer to help focus their clients testimony, all asylum seekers, including Zimbabweans targeted by Operation Murambatsvina wishing to claim asylum, are fully reliant on well-trained RSDOs who should ask the correct questions to understand whether or not the asylum seeker can qualify for refugee status. RSDOs also need complete, accurate, and up-to-date information on the conditions in the asylum seekers country to help them assess whether the individuals statements fit with the political, social, and economic conditions in the claimants country of origin. UNHCR confirmed that in November 2007 RSDOs still had no systematic access to reliable country information.247
The quality of RSDO decisions is poor. Applicants are often interviewed with badly trained or no interpreters present. Many decisions are taken hastily with written reasons for rejection of the claim using irrelevant, arbitrary, and pro-forma language or reasoning with no basis in law. There continue to be reports of third parties taking money in the queues outside the offices and paying bribes to RSDOs to accept claims.248
The Chair of the Refugee Appeals Board confirmed that the quality of RSDO decisions is very low with most RSDOs having at most a law degree and a two-week crash course in refugee law.249 UNHCR confirmed that RSDOs do not receive regular training, which contributes to questionable decision-making, and that the very few RSDOs with good skills rapidly move on to other jobs.250
Human Rights Watch randomly reviewed four RSDO decisions from 2007 and confirmed that they were of extremely low quality with almost no use of law.251 RSDOs are presently unable to deal with even the most straightforward of cases involving, for example, claims of torture or other forms of ill-treatment motivated by political reasons such as membership of opposition parties. Even more challenging are cases involving more complex claims, such as those that can be made by Zimbabweans targeted by Operation Murambatsvina. In the absence of lawyers and competent and well-supported RSDOs, claims such as those relating to Murambatsvina will almost certainly be rejected.252
The South African asylum system has a functioning appeals system.253 However, for two reasons few asylum applicants with rejected cases are able to meaningfully access the system or to access it at all.
First, few applicants are able to find a lawyer to help them with an appeal.254 This is because there is no functioning government-funded legal aid system in place for asylum applications and there are only a limited number of asylum law practitioners who provide free or low-cost legal aid services.255 This will either dissuade asylum seekers from lodging an appeal or, if they do appeal, will lead to them representing their own case. Not being lawyers, such appeals will inevitably be extremely weak.256
Second, a combination of the high number of rejected claims combined with the low capacity of the Refugee Appeals Board means that cases take a long time to be heard, leaving the asylum applicant in a situation of long-term legal insecurity.257 This again deters people from lodging an appeal.
The combination of low-quality decision-making leading to mistaken rejection of claims and the barriers to lodging an appeal mean that there is a considerable risk that Zimbabweans with valid asylum claims end up rejected and deported to Zimbabwe, thus constituting refoulement.
The Second258 Backlog Project
The ongoing dysfunction of South Africas asylum system is exacerbated by the increasing number of cases the system is struggling to process. With the recent influx of Zimbabweans entering South Africa and a parallel increase in Zimbabwean asylum applications, the system has been even more strained. Until the asylum system is able to find a way of dealing more efficiently with its caseload, the obstacles faced by Zimbabwean asylum seekers and the related risk of refoulement will continue.
In March 2006 the DHA announced the creation of a second Backlog Project designed to clear 111,153 cases that had accumulated in the asylum system before August 1, 2005.259 The project has been running separately from the main asylum system which has continued to receive new applications lodged on or after August 1, 2005.
In September 2007 the DHA announced that 76,400 pre-August 1, 2005 cases remained to be dealt under the Second Backlog Project.260 Human Rights Watch obtained statistics showing that the Second Backlog Project adjudicated 43,116 cases between September 1, 2005, and March 31, 2008. Since then the DHA has made no further formal statement on progress made in reducing this backlog.261 However, on April 16, 2008, the South African delegation at the UNs Human Rights Councils review of South Africas human rights record stated that, [t]he backlog has been reduced to 8,000 at present.262 And on May 29, 2008, the minister of home affairs informed a legal aid NGO that all applications dealt with under the Second Backlog Project have been dealt with except for the appeals against decisions of the Refugee Status Determination Officers.263
In addition to the challenges faced by the asylum system in clearing the pre-August 1, 2005 cases in the Second Backlog Project, the rest of South Africas asylum system is struggling to cope with the number of asylum applications lodged on or after August 1, 2005. This has been openly acknowledged by the DHAs Director-General.264
Between August 1, 2005, and December 31, 2005, approximately 19,715 new asylum applications were lodged. Of these, 1,960 were dealt with at the initial (RSDO) stage, leaving 17,775 cases pending at years end.265 Between January 1, 2006, and December 31, 2006, 53,361 new asylum applications were lodged with 5,432 initial decisions made during the same period.266 There were 45,673 new asylum applications in 2007. That year, 5,879 cases were processed at the initial stage.267
This means that between August 1, 2005, and December 31, 2007, 118,749 new asylum applications were lodged and 13,271 initial decisions taken, leaving a total of 105,478 asylum cases that were lodged on or after 1 August 2005 pending at the end of 2007.
A total of 44,423 Zimbabweans claimed asylum in South Africa between 2005 and 2007 (In 2004, 2005, and 2006, 241 Zimbabweans were recognized to be refugees).268 Zimbabweans comprised one-third of all applications in 2006 and 2007.269
Interviews conducted by Human Rights Watch revealed that many Zimbabweans claim asylum as the only way to regularize their stay and work legally in South Africa.270 If the South African authorities were to adopt Human Rights Watchs proposal in Chapter IX of this report to introduce a temporary immigration exemption status for Zimbabweans, many of these claims would no longer be made, thus freeing up capacity within the asylum system. This would enable Zimbabweans targeted by Operation Murambatsvina to make their claims for asylum. The number of such claims might be high, but many such claimants might choose not to lodge asylum claims if the South African authorities provided them with a form of temporary status.
The pressure created by the numbers affects the entire asylum system. It affects procedural matters such as asylum seeker permits and access to the five offices. It also affects the speed and quality with which the small number of RROs and RSDOs process claims. Consequently, many Zimbabwean asylum seekers are currently at risk of refoulement.
In 2004 the DHA launched a Turnaround Strategy designed to improve service delivery in all of the DHAs departments, including the National Immigration Branchs five directorates. One of these is the Refugee Affairs Directorate.271
In November 2005 the Pretoria High Court ordered the DHA to commission an independent review of the asylum system and to report back to the Court on its progress in implementing any recommendations made by the review. A draft report was issued in February 2007 and recommended far-reaching reforms in all areas including staffing, information technology capacity, infrastructure, and processes.272 Most notably it recommended that the DHA recruit an additional 180 Refugee Status Determination Officers and 24 Refugee Reception Officers to ensure that the government complies with its national and international legal obligations.
In September 2007 the company leading the Turnaround Strategy reported that the DHA Minister had accepted the recommendations made and set out a broad plan for implementing them.273 The report noted that as of September 2007 extremely little progress had been made.274 According to the most recent public update by the DHA, minor improvements have been made to the asylum system.275 A number of RSDOs have been recruited, though they have yet to be trained,276 and 17 new senior staff appointments have been made.277 Unless the strategy makes significant and unexpectedly rapid progress in the second half of 2008, the asylum system will continue to expose Zimbabwean asylum seekers to a high risk of being subjected to refoulement.
Under South African law, immigration officials have the right to arrest, detain, and deport illegal foreigners.278 People are illegal foreigners if they are in contravention of the 2002 Immigration Act.279 Foreign nationals contravene the act if they do not have a valid permit to be in South Africa.280
A person who has expressed a wish to apply for asylum or who has already applied for asylum cannot be an illegal foreigner. The law guarantees all individuals expressing a wish to apply for asylum the right to be given time to gain access to one of the five Refugee Reception Offices.281 The law also explicitly protects those who have already applied for asylum: [N]o proceedings may be instituted or continued against any person in respect of his or her unlawful entry into or presence within the Republic if suchperson has applied for asylum until a decision has been made on the application.282
Immigration officials and police officers are authorized to require anyone in South Africa to identify himself as a citizen, permanent resident, or non-national. If they have reasonable grounds to conclude that the person is not entitled to be in South Africa, they may take [the] person into custody without a warrant and if necessary may detain him until . [his] status is ascertained.283
Because asylum seekers cannot lawfully be deported, they must be released immediately if the questioning establishes that they are asylum seekers.
If the immigration officials decide that the person is an illegal foreigner they must arrest the person and may detain her pending deportation.284 While awaiting deportation South African law provides that detainees have a number of rights, including the right to receive a written decision confirming the planned deportation, the right to appeal against the decision, the right to ask for a court to confirm the validity of the decision, and the right to be informed of these rights.285 If after 30 days the person is still in detention only a court can authorize a further period of detention, which cannot exceed 60 days (i.e. a maximum total of 90 days).286 There are clear minimum standards that regulate the living conditions of illegal foreigners detained pending deportation.287
In 2005 Human Rights Watch reported on a number of violations of the law. These included unlawful detention of asylum seekers by police officers beyond the maximum 48-hour period, often caused by a failure of communication between police officers and immigration officials who failed to establish the asylum seekers status; unnecessary detention of asylum seekers at Lindela caused by police having no option but to take suspected illegal foreigners to Lindela in the absence of cooperation from immigration officials;288 unlawful detention of asylum seekers beyond the 30 day limit; and instances, confirmed by UNHCR, of refoulement of asylum seekers and refugees from Lindela.289
In 2006 and 2007 the situation did not improve, with numerous legal-aid service providers reporting the following:
In addition to the regularly documented breach of minimum living standards at Lindela,292 the UN Human Rights Council received a report from the UN in April 2008 setting out numerous consistent allegations of ongoing rights violations taking place at Lindela, including refoulement. These include allegations of ill-treatment, including extortion of documented and undocumented non-citizens by law enforcement officials.293 The UN report noted that in 2006 the UN Working Group on Arbitrary Detention concluded that:
The UN Working Groups reference to police officers throwing out residence papers is echoed in a 2006 survey which reported that of 59 interviewees, 65 percent said that having showed their asylum seeker permits to police who had stopped them, they were told to pay a bribe to ensure that their papers would not be torn up.295
Most serious of all are reports that in 2007 many Zimbabweans in the immediate border areas were being taken to a detention facility in Musina, on the South Africa-Zimbabwe border. The facility is located on a military base previously used by the South African National Defense Forces (SANDF), and is being run by the South African Police Services (SAPS).296 Most Zimbabweans were deported within hours or days by the police without immigration officials verifying their legal status and without being informed of their rights to appeal the decision to deport them,297 a clear breach of the Immigration and Refugee Acts.298 These practices have reportedly continued in 2008.299 Numerous civil society organizations have been refused access to the detention facility.300 UNHCR has also repeatedly been refused access.301
The lawyers reporting on these violations hear about them through their regular contact with detained clients. When they are able to identify individuals who wish to claim asylum and, therefore, have been unlawfully arrested and detained, they have usually been able to secure their release relatively easily. However, given the small number of legal service providers, the large number of detainees, and the insufficient access to detention facilities to monitor detention and deportation practice, there is serious concern that the vast majority of people who are unlawfully detained are not detected and, therefore, end up being unlawfully deported.302 In the case of refugees and asylum seekers, such deportation constitutes refoulement.
The number of Zimbabweans deported from South Africa in 2006 and 2007 is high. There are no official statistics available and even official statistics do not reflect the true picture, given the amount of rapid informal deportation that takes place between South Africa (Musina) and Zimbabwe (Beitbridge).303
Human Rights Watch has informally obtained DHA statistics for the calendar year 2006 which state that of the 165,270 deportations officially carried out by the South African authorities, a little less than half, 81,289, were of Zimbabweans.
Other statistics indicate that in 2007 this number doubled. Between June 1, 2006, and May 31, 2007, the International Organization for Migration (IOM) office in Beitbridge, Zimbabwe, registered 163,240 Zimbabwean deportees.304 Between 1 January and 3o June 2007, the IOM registered 102,413 deportees.305 The South African Polices Communications Officer in Musina told the Red Cross that between March and July 2007 the number of deportees had tripled (from 6,500 a month in the months before March 2007) to 18,000 a month.306 Over 12 months this would lead to a total of 216,000 deportations. The 18,000 figure matches almost exactly the figures made public by the IOM Beitbridge office in Zimbabwe across the border from Musina, which stated in July 2007 that it had been receiving 17,000 deportees a month.307
In October-November 2007 many Zimbabweans told Human Rights Watch that they had been deported more than once in the past year. Such deportees are counted at least twice in the statistics.308
213 Human Rights Watch, Living on the Margins. The report documents how the South African authorities have failed across the board to ensure respect for the legally binding procedures governing asylum applications as set out in the 1998 Refugees Act.
214 Violations of asylum seekers rights continue despite the fact that the public prosecutor issued a damning report to the DHA and South African Parliament in October 2004 condemning the numerous shortcomings in the asylum system and making recommendations to improve the system. For a helpful review of the prosecutors report, of the governments failure two years after the report to implement key recommendations, and of litigation brought by legal-aid NGOs to force government action, see NCRA, Refugee Protection, pp. 9-15.
215 Art. 33(1) of the 1951 Refugee Convention: No Contracting State shall expel or return ("refouler ") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. This is reiterated in s. 2 of the 1998 Refugees Act. The prohibition of refoulement is so fundamental that it is a rule of customary international law. (Customary international law is defined as the general and consistent practice of states followed by them out of a sense of legal obligation). ExCom General Conclusion No. 25 on International Protection, 1982, http://www.unhcr.org/excom/EXCOM/3ae68c434c.html (accessed April 7, 2008). For more recent joint UNHCR and academic endorsement of the principle, see Summary Conclusions of Expert Roundtable, University of Cambridge, July 2001,http://www.unhcr.org/publ/PUBL/419c76592.pdf (accessed March 14, 2008).
216 Human Rights Watch, Living on the Margins, p. 45.
217 South African civil society concluded in 2007 that the current state of the asylum system means that asylum seekers and refugees are being (unlawfully) deported. CRMSA, Protecting Refugees, p. 33.
218 The main written material covering the 2006-2007 period is: CRMSA, Protecting Refugees; NCRA, Refugee Protection; Lee Anne de la Hunt and William Kerfoot, Due Process in Asylum Determination in South Africa from a Practitioners Perspective, in Jeff Handmaker, Lee Anne de la Hunt and Jonathan Klaaren, eds, Advancing Refugee Protection in South Africa, which helpfully summarizes the weakness of the system over the past 10 years.
219 Although there is no clearly identified reason for this, anecdotal evidence suggests that Zimbabweans prefer not to claim asylum at the Beitbridge-Musina border post because they fear Zimbabweans secret service agents who are believed to be in high numbers at Beitbridge (on the Zimbabwean side of the border) and in Musina (on the South African side of the border).
220 The Johannesburg office has had a number of difficulties. The Rosettenville branch of the office was closed between April 2005 and January 2006. Following successful litigation, it re-opened in January 2006. In March 2007 the Crown Mines branch was opened and in October 2007 the Rosettenville branch closed for good. The instability of this office has added to capacity problems, above all in the Pretoria office located 60 kilometers from Johannesburg, which has had to take over the cases that would otherwise have been processed in the Johannesburg office.
221 According to the DHA, between January 1 and June 30, 2007, one Zimbabwean national claimed asylum at the Beitbridge border post. DHA Press Statement by Chief Directorate Communication, Zimbabwean Nationals Entering South Africa, August 1, 2007, http://www.dha.gov.za/media_releases.asp?id=419 (accessed April 4, 2008). Confusingly, the same press release stated that on the basis of the Beitbridge border post statistics, virtually no people from Zimbabwe have applied for asylum in this country, despite the fact that DHA statistics, referred to above, show that 44,423 Zimbabweans claimed asylum in South African between 1 January 2005 and 31 December 2007.
222 Referring to people who have entered South Africa though an informal border crossing, regulation 2(2) of Refugee Regulations No. R366 adopted under the 1998 Refugees Act, states that any person who entered the Republic and is encountered in violation of the Aliens Control Act, who has not submitted an application [for asylum at one of the Refugee reception Offices], but indicates an intention to apply for asylum shall be issued with a permit valid for 14 days within which [time] they must approach a Refugee Reception Office to complete an asylum application. This is in line with Article 31 of the 1951 Refugee Convention which prohibits states from penalizing refugees for entering their territory without passing through official border points.
223 Also known as a section 23 permit because it is described in s. 23 of the 2002 Immigration Act (as amended by s. 24 the 2004 Immigration Amendment Act). This section only refers to such permits being granted at a port of entry, i.e. at a formally recognized border crossing. Regulation 2(2) of Refugee Regulations No. R366 adopted under the 1998 Refugees Act allows for such a permit to be issued anywhere inside the country.
224 S. 21(1) of the 1998 Refugees Act says that an application for asylum must be made in person to a Refugee Reception Officer at any Refugee Reception Office.
225 CRMSA, Protecting Refugees, p. 32. South Africas ongoing unlawful deportation practices, in Musina and elsewhere, will be looked in more detail in later sections.
226 CRMSA, Protecting Refugees, p. 25.
227 Ibid. A 2007 workshop in Musina involving police officers, immigration officials, social workers, and lawyers highlighted these issues. CRMSA, Protecting Refugees, p, 26.
228 See Chapter IV, p. 25.
229 Also known as a section 22 permit because it is described in s. 22 of the 1998 Refugees Act. If passed into law, the 2008 Refugees Amendment Bill would abolish the position of Refugee Reception Officer and only a small number of their tasks would be given to Refugee Status Determination Officers. The bill and criticism of the bills failure to reallocate most of their tasks can be found in Parliamentary Monitoring Groups Summary of Public Hearings on the Refugees Amendment Bill, http://www.pmg.org.za/report/20080325-refugees-amendment-bill-public-hearings (accessed April 3, 2008).
230 The three-month period is not prescribed in any law or regulation. Different offices issue the permits for different periods of time on an ad hoc basis. The average length is three months. Human Rights Watch email exchange with Legal Advice NGO, March 18, 2008.
231 However, the Refugee Reception Offices still use an old asylum seeker permit form which states employment and work prohibited. These permits were designed before South African lawyers successfully challenged this prohibition in court in 2003. Since the lifting of the prohibition, the DHA has failed to produce new standard forms confirming that employment and work is permitted. Instead RROs have been manually crossing out the word prohibited and adding the word granted. When asylum seekers then show the form to prospective employers and education institutions they are accused of having changed the words themselves and are, therefore, denied access to work and study. Human Rights Watch interviews with NGOs in Johannesburg, October 2007.
232 CRMSA, Protecting Refugees, p. 28. The report confirms that corruption continues to be a serious problem at the queuing stage of the application process with people not working for the DHA taking bribes to guarantee access to the inside of the offices. The report notes that these agents often appear to work in collusion with Departmental officials. For an overview of the numbers of asylum seekers trying to gain access to offices and the low numbers who manage to get access at any give time, see NCRA, Refugee Protection, pp. 13-15. See also, Civil Society Written Submission, The Documented Experiences of Refugees, pp. 17-19. For recent reporting on the conditions outside the Cape Town office, see South African groups have for many years documented the notorious difficulties of gaining access to these offices, which have also been the subject of litigation. Joint Submission to SANAC Plenary, Vulnerable groups: refugees, asylum seekers, and undocumented persons, pp. 6-7.
233 This ad hoc practice of specific intake days based on applicants country of origin applies to all nationalities but is particularly obstructive for Zimbabweans who end up in particularly long queues due to their high numbers. Human Rights Watch email exchange with Legal Advice NGO, March 18, 2008.
234 S. 23(2) of the 2002 Immigration Act, as amended by the 2004 Immigration Amendment Act.
235 AT Kearney, Transforming the Department of Home Affairs, Refugee Affairs, September 2007, not available online, on file with Human Rights Watch, p. 18.
236 S. 33(1): everyone has the right to administrative action that is lawful, reasonable and procedurally fair. S. 33(3): national legislation must give effect to these rights and must promote and efficient administration.
237 Section 22(1) of the 1998 Refugees Act.
238 NCRA, Refugee Protection, p. 16.
239 Tafira v Minister of Home Affairs and others, High Court of South Africa, Transvaal Provincial Division Case No: 12960/2006. On file with Human Rights Watch.
240 This was confirmed in interviews with legal practitioners in Johannesburg. Human Rights Watch interviews, October 2007.
241 Under s. 34(5) of the 2002 Immigration Act, the Director General designates locations where illegal foreigners may be detained pending deportation. The Lindela Repatriation Center, sometimes also referred to as a holding facility, is the only center that has been officially designated by the Director General.
242 NCRA, Refugee Protection, p. 21.
243 CRMSA, Protecting Rights, p. 32. Although the DHA has said that it is trying to educate its law enforcement partners on the validity of appointment slips (now replaced by verbal appointments), despite such slips having no basis in law, its message has not filtered through to the ground where arrests and deportation take place. NCRA, Refugee Protection, p. 22.
244 Human Rights Watch interviews in Johannesburg, November 3-7, 2007. See also, Civil Society Written Submission, The Documented Experiences of Refugees, p. 18.
245 AT Kearney, Transforming the Department of Home Affairs, p. 8. An independent process engineer, contracted by the DHA in December 2006 to review the state of the asylum system concluded that an additional 180 RSDOs are needed. IQ Businees Group, Report on the Process Engineering Findings and Recommendations related to the Processing and Adjudication of Applications for Asylum received by Refugee Reception Offices, February 1, 2007, on file with Human Rights Watch, p. 55.
246 In 2003 the average waiting time was 18 months. See National Baseline Survey, 2003. Many applicants are known to wait for years before a decision is taken. Given that only 10 percent of the total new applications received in 2005 and 2006 were processed at the initial stage in each of those years, this trend is likely to continue. DHA, Annual Report, 2006, and DHA, Annual Report, 2007. The independent process engineer report concluded that the average output of an RSDO per day is 1.5 adjudications. IQ Businees Group, Report on the Process Engineering Findings, p. 30.
247 Human Rights Watch interview with Abel Mbilinyi, deputy representative for UNHCR in South Africa, Pretoria, October 31, 2007. UNHCR offered to assist to set up such a unit but the DHA wanted it to be a fully government-run unit, which it said it would set up at some point in 2008.
248 All points in this paragraph are reported in CRMSA, Protecting Refugees, p. 29.
249 Human Rights Watch interview with Tjerk Damstra, Refugees Appeal Board (RAB), Pretoria, October 18, 2007. Mr Damstra repeated this point during his submission to the Home Affairs Committee on 25 March 2008: Parliamentary Monitoring Group, Summary of Public Hearings.
250 Human Rights Watch interview with Abel Mbilinyi, October 31, 2007.
251 Cases held on file at the Wits Law Clinic at Wits University, Johannesburg, reviewed October 2007.
252 See J. Klaaren and C. Sprigman, Refugee Status Determination procedures in South African Law, in Jeff Handmaker, Lee Anne de la Hunt and Jonathan Klaaren, eds., Advancing Refugee Protection.
253 If, under s. 25(1) of the 1998 Refugees Act, the RSDO rejects the claim as manifestly unfounded, abusive or fraudulent (claims that are deemed to be clearly false), the file is transferred to the Standing Committee for Refugee Affairs for review. If the committee also rejects the case, the applicant can appeal to the Refugees Appeal Board (RAB). If the RSDO rejects the claim without calling it manifestly unfounded, the claimant can appeal directly to the RAB. Under South Africas Refugees Amendment Bill, due to be approved by Parliament in 2008, the Standing Committee and the RAB will be merged into a Refugee Appeals Authority which will hear all appeals lodged by asylum seekers with claims rejected by RSDOs.
254 Approximately 5 percent of asylum seekers appealing to the Refugee Appeals Board have a lawyer. Human Rights Watch interview with RAB, Pretoria, October 18, 2007.
255 South Africas Legal Aid Board, www.legal-aid.co.za/, is mandated to assist asylum seekers but does not provide such assistance. Lawyers for Human Rights are considering establishing a training programme for Legal Aid lawyers. Human Rights Watch email exchange with LHR, March 18, 2008.
256 This was confirmed during Human Rights Watch interviews with members of the Refugee Appeal Board, Pretoria, October 18, 2007. In 2005 Human Rights Watch conducted interviews with lawyers at the Witwatersrand University Law Clinic who stated that although many asylum seekers do appeal, the majority do not have access to legal representation because they are unaware of their right to have a lawyer or cannot afford a lawyer or do not know how or where to find free or low-cost legal assistance. Human Rights Watch, Living on the Margins, p. 28.
257 The Refugee Appeals Board currently has four members who hear cases and who between them heard 827 cases between April 1, 2006, and March 31, 2007. DHA, Annual Report, 2007.
258 South Africas First Backlog Project was carried out in 2000 and 2001.
259 Statement by acting deputy director-general: National Immigration Branch on the Refugee Backlog Project, Pretoria, April 20, 2006, http://www.dha.gov.za/speeches.asp?id=157. The project covered cases that had been lodged between 1 April 1998 and 31 July 2005. Broad structural concerns with the way in which the project was conceived can be found in NCRA, Refugee Protection, pp. 31-34. For a very helpful overview of both backlog initiatives, see J. Handmaker, Starting with a Clean Slate? Efforts to Deal with Asylum Application Backlogs in South Africa, in Jeff Handmaker, Lee Anne de la Hunt and Jonathan Klaaren, eds., Advancing Refugee Protection.
260 DHA, Statement on the Home Affairs Director Generals First 100 Days In Office, September 4, 2007, http://www.home-affairs.gov.za/media_releases.asp?id=426 (accessed April 9, 2008). The consultancy firm AT Kearny that has been contracted by the DHA to carry out a Turnaround Strategy reported in September 2007 that by 1 April 2007 the backlog project had processed 34,700 cases (or 31 percent of the total of 111,153 cases). AT Kearney, Transforming the Department of Home Affairs, p. 7. In September 2007 the DHA also announced an initiative aimed at cutting the number of cases to be dealt with by the Second Backlog Project, effectively requiring all people who had made asylum applications between 1 April 1998 and 31 July 2005 and whose status had not yet been finalized to resubmit their claim by 31 October 2007. DHA, Public Annoucnement to Refugees in the Refugee Backlog Project, August 15, 2007, http://llnw.creamermedia.co.za/articles/attachments/07765_notice1008.pdf (accessed April 23, 2008). The DHA said that a failure to resubmit the claim would lead to the DHA revok[ing] their permits and all those applicants will be declared illegal in the country. DHA, Statement on the Home Affairs Director Generals First 100 Days In Office. At the time of publication the DHA had released no statistics on how many people resubmitted their claims.
261 Statistics obtained informally by Human Rights Watch. On file with Human Rights Watch.
262 UN Human Rights Council, Working Group on the Universal Periodic Review, report of the Working Group on the Universal Periodic Review, South Africa, A/HRC/WG.6/1/ZAF/4, April 18, 2008, http://portal.ohchr.org/portal/page/portal/UPR/1session/South%20Africa (accessed April 25, 2008 with username hrc extranet and password 1session).
263 Letter from the Minister of Home Affairs to the South African Legal Resources Centre, May 29, 2008.
264 On September 4, 2007, the Home Affairs Director-General made a statement conflating statistics from the Second Backlog Project (covering claims made before 1 August 2005) and statistics on new claims made on or after 1 August 2005. He said that 76,400 applications [are] still being processed, with the assumption that the majority have not been submitted by genuine asylum seekers. At the same time the backlog in refugee processing has grown by 30 percent from 76 000 to 144 000 despite concerted efforts to reduce it. DHA, Statement on the Home Affairs Director Generals First 100 Days In Office.
265 According to figures from the DHA, 47,322 new asylum applications were made between April 1, 2005, and March 31, 2006 (or an average of 3,943 applications per month). DHA, Annual Report 2006. Therefore, a rough figure for new applications between August 1, 2005, and December 31, 2005 (five months), is 19,715. During the same period (April 1, 2005, to March 31, 2006) the DHA records 4,713 initial decisions being taken (or an average of 392 per month). Therefore, a rough figure for initial decisions between August 1, 2005, and December 31, 2005 (five months), period is 1,960.
266 UNHCR, Statistical Yearbook 2006, Statistical Annex, http://www.unhcr.org/statistics/STATISTICS/478cda572.html (accessed March 15, 2008). Overlapping statistics from the DHA for the period April 1, 2006, to March 31, 2007, record 44,212 new asylum claims. No statistics were given for the number of initial decisions. DHA, Annual Report 2006-2007.
267 UNHCR, South Africa gets 45,673 asylum seekers in 2007.
268 See above, page 33, footnote 38. The low recognition rates may in large part be due to the low number of applications processed each year by the asylum system. Between 1 April 2005 and 31 March 2006, 4,713 applications were finalized. DHA, Annual Report 2005-2006, p. 52. There are no statistics available for the year 1 April 200631 March 2007 as the DHA has discontinued its practice of reporting on the total number of applications finalized. Instead it now records the total number of applications received. DHA, Annual Report 2006-2007, p. 51.
269 See above, page 31.
270 Human Rights Watch interviews, Cape Town, Johannesburg, and Pretoria, October and November 2007.
271 For a helpful overview of the aims of the Turnaround Strategy as it affects the asylum system, see NCRA, Refugee Protection, p. 7.
272 CRMSA, Protecting Refugees, pp. 22-23. The report is referred to above: IQ Businees Group, Report on the Process Engineering Findings. A final formal public report was never published and at the time of publication the DHA has not reported back to the court.
273 AT Kearney, Transforming the Department of Home Affairs, p. 9.
274 Ibid, pp. 11-14.
275 DHA, Building the New Home Affairs: Transformation Progress Report, Briefing to the Portfolio Committee, November 2007, http://www.archive.pmg.org.za/briefings/briefings.php?id=384 (accessed March 7, 2008).
276 Human Rights Watch email exchanges with South Africa asylum practitioners, April 2008.
277 Letter from the Minister of Home Affairs to the South African Legal Resources Centre, May 29, 2008.
278 S. 32(2), 2002 Immigration Act.
279 S. 1(1)(viii), 2002 Immigration Act.
280 S. 9(4), 2002 Immigration Act.
281 See above, p. 84.
282 S. 21(4), 1998 Refugee Act.
283 S. 41 of the 2002 Immigration Act must be read with Regulation 32 of the 2005 Immigration Regulations which sets out the three ways in which an official can verify someones identity. Taking a person into custody and arresting a person has the same effect (deprivation of liberty) but is different as a matter of law. Police officers do not have powers of arrest of non-nationals unless they are suspected of having committed a criminal offense. S. 34(1) of the 2002 Immigration Act gives immigration officials the power of arrest only after they have established that someone is an illegal foreigner (someone in breach of any part of the 2002 Act).
284 S. 34(1), 2002 Immigration Act.
285 S. 8 and ss. 34(1)(a), (b) and (c), 2002 Immigration Act.
286 S. 34(1)(d), 2002 Immigration Act. See also, s. 29(1) 1998 Refugees Act.
287 S. 34(1)(e), 2002 Immigration Act and s.28(5)/Annex B to the 2005 Immigration Regulations.
288 For a detailed analysis of the lack of communication, cooperation and coordination between the police and immigration officers when dealing with transfers of suspected illegal foreigners from the police to immigration officials, see NCRA, Refugee Protection, pp. 21-23.
289 Human Rights Watch, Living in the Margins, p. 41.
290 CRMSA, Protecting Refugees, p. 32. On the specific experiences of lawyers working with Lawyers for Human Rights at Lindela, see L. Landau, Protection and Dignity in Johannesburg: Shortcomings of South Africas Urban Refugee Policy, Journal of Refugee Studies, vol. 19 no. 3, September 2006, pp. 308-327, http://jrs.oxfordjournals.org/cgi/reprint/19/3/308 (accessed March 18, 2008). On bribes at Lindela, see Civil Society Written Submission, The Undocumented Experiences of Refugees, p. 20.
291 Human Rights Watch interviews with asylum practitioners and advocates, Johannesburg, October 2007.
292 For example, CRMSA, Protecting Refugees, p. 32; and Civil Society Written Submission, The Undocumented Experiences of Refugees, pp. 24-25. Human Rights Watch interviews in October 2007 with a leading public litigation organization in Johannesburg established that living conditions continue to be sub-standard. Under South African law, the South African authorities are bound to comply with basic minimum standards of detention for immigration-related detainees. Annex B to Immigration Regulations 2005.
293 Compilation prepared by the Office of the High Commissioner for Human Rights, in accordance with paragraph 15(b) of the Annex to Human Rights Council Resolution 5/1, A/HRC/WG.6/1/ZAF/2, 11 April 2008, http://lib.ohchr.org/HRBodies/UPR/Documents/Session1/ZA/A_HRC_WG6_1_ZAF_2_E.pdf (accessed April 12, 2008), para 20.
294 Ibid, para 21.
295 Civil Society Written Submission, The Documented Experiences of Refugees, p. 20.
296 Forced Migration Studies Program, Facts or Fiction? p. 6. A new detention facility is being built on the same base and is due to be completed by the end of 2008. Human rights Watch confidential interview with South African NGO, April 2008.
297 CRMSA, Protecting Refugees, p. 32. According to Legal Advice NGOs interviewed in Johannesburg by Human Rights Watch, this detention center is treated as an extension of the nearby Musina police station. However, the center has not been officially designated as a center where illegal foreigners may be detained pending deportation.
298 Only immigration officials have the power to deport a suspected people found to be illegal foreigners. S. 34(1), 2002 Immigration Act. If the police believe someone is an illegal foreigner, they must transfer that person to immigration officials within 48 hours or release them. S. 34(2), 2002 Immigration Act. S. 36(1) of the 2002 Immigration Act, the DHA (and thereby the Immigration Directorate) is given powers to control the entry and exit of people through South Africas borders. The DHA can ask for the assistance of other departments and government bodies, including the South African Police Service (SAPS) and the South African National Defense Force (SANDF), but such assistance does not extend to taking substantive decisions on a persons legal status, only to carrying out functional tasks such as transporting deportees. Immigration officials can verify a persons status anywhere. It does not have to be done in a detention centre. The Immigration Inspectorate has recognized this and has issued a directive to immigration officers requiring that verification of identity be conducted before a person is detained. NCRA, Refugee Protection, p. 23.
299 Human Rights Watch confidential email exchange with South African asylum specialist, March 18, 2007.
300 CoRSMA , Newsletter No. 9, April 8, 2008, http://www.cormsa.org.za/news.php (accessed May 31, 2008), p.6. See also, Joint Submission to SANAC Plenary, Vulnerable groups: refugees, asylum seekers, and undocumented persons, pp. 9-11.
302 CRMSA, Protecting Refugees, pp. 32-33. The report notes that in 2007 non-nationals are increasingly being held at a number of prisons that are not designated by the director general of the National Immigration Branch as centers to hold people being detained for immigration offenses. In addition to the detention center in Musina, the report cites the prisons at Pollsmoor (Western Cape) and Westville (KwaZulu-Natal).
303 CRMSA, Protecting Refugees, p. 32.
304 IOM, Annex 3.08 to IOM Statistics on Deportees, September 2006-May 2007. On file with Human Rights Watch.
305 Centre for Development and Enterprise, Migration from Zimbabwe: Numbers, Needs and Policy Pptions, April 2008, http://www.cde.org.za/article.php?a_id=280 (accessed April 8, 2008), p. 5.
306 South African Red Cross, Rapid Assessment.
307 Andre Meldrum, Refugees Flood from Zimbabwe, The Guardian, July 1, 2007, http://www.guardian.co.uk/zimbabwe/article/0,,2115989,00.html (accessed March 8, 2008).
308 Zimbabweans returning to South Africa immediately after they have been deported is not a new phenomenon. Southern African Migration Policy (SAMP), Making Up the Numbers: Measuring Illegal Immigration to South Africa, Migration Policy Brief No. 3 (SAMP 2001), p. 12. For this and other SAMP publications, http://www.queensu.ca/samp/sampresources/samppublications/ (accessed March 10, 2008).