<<previous  |  index  |  next>>

IX. Adopting a Broad-Based Approach to Zimbabweans in South Africa: Allowing Entry, Regularizing Status, Ending Deportations and Granting the Right to Work

Overview of Need and Reasons for Broad-Based Approach

The estimated one million Zimbabweans in South Africa cannot be described as voluntary economic migrants. As the testimonies presented in this report document, Zimbabweans are coming to South Africa out of desperation and as a last option to cope with the crisis in their country. Their movement can and should be described as involuntary. Official recognition by governments and international actors of the involuntary nature of Zimbabwean’s displacement into South Africa (and other neighbors) is a necessary step to determine the most effective response to their presence in South Africa.³⁰⁹

Presently Zimbabweans have limited opportunity to lawfully enter and stay in South Africa. Some manage to obtain visitors’ permits, a small number obtain one of four types of work-related permits and some claim asylum. However, the vast majority, in the hundreds of thousands, continue to enter South Africa irregularly and have no legal status.

The South African authorities should adopt a broad-based approach to Zimbabweans’ presence in South Africa. This should allow Zimbabweans to enter South Africa, temporarily regularize the status of all Zimbabweans present in South Africa for a reviewable period of time, provide for an end to deportations of Zimbabweans, and provide all Zimbabweans in South Africa with the right to work during that period.

There are at least eight reasons for such an approach.

First, regularization would respect South Africa’s legal obligations. Many Zimbabwean asylum seekers in South Africa do not get the protection to which they are entitled under South African and international refugee law. There is no short term prospect of substantial improvements in the asylum and deportation systems. Consequently, Zimbabwean asylum seekers will continue to face the risk of being subjected to refoulement. These include those seeking asylum as a result of the government’s campaign of political violence and repression against opposition supporters following the March 2008 elections and people targeted byOperation Murambatsvina, if they claim asylum in the future. Because the current asylum and deportation systems currently fail to adequately identify and protect many Zimbabwean asylum seekers, the only way to end their unlawful deportation and to ensure South Africa respects its obligations under international law is to end deportation of all Zimbabweans.

Second, regularization would unburden the asylum system of unnecessary claims. South Africa’s dysfunctional asylum system is overburdened by tens of thousands of claims made by Zimbabweans who are desperate to work. Although many, including those targeted by the 2005 evictions, may have valid asylum claims, others may use the asylum system as the only way to regularize their legal status and to have the right to work in South Africa. Regularizing Zimbabweans’ status and giving them the right to work would help reduce the number of unnecessary claims in the asylum system and would thereby help the government to guarantee protection for those with valid claims.

Third, regularization would protect Zimbabweans during entry and stay in South Africa, including against xenophobic violence at the hands of South African citizens. In 2007 there were increasing reports of Zimbabweans falling victims to serious criminal offences during informal border crossings at the hands of violent Zimbabwean people smugglers known as maguma guma, including many instances of rape.³¹⁰ Once inside South Africa, Zimbabweans’ undocumented status exposes them to violence at the hands of South African citizens who almost certainly believe that their vulnerable victims won’t report them to the police. As noted above, the wave of violence against Zimbabwean and other foreign nationals that swept South Africa in May 2008 and which left at least 62 people dead, 670 injured, and over 100,000 displaced,³¹¹ follows in the wake of many isolated incidents of similar violence that have taken place throughout 2007 and early 2008.³¹² Zimbabwean’s undocumented status also exposes them to exploitation by employers and to harassment by the South African police.³¹³ In summary, helping Zimbabweans enter through formal border crossings would attenuate predatory practices at the border. Ensuring that Zimbabweans were documented and could work would significantly reduce their vulnerability to xenophobic violence at the hands of criminals, to exploitation by employers, and to corrupt police practices.

Fourth, regularization would offset the cost to the South African taxpayer of ineffective deportation and wasteful use of police resources. The South African authorities have openly recognized that deporting Zimbabweans “doesn’t work,”³¹⁴ and that the presence of Zimbabweans in South Africa is “something [South Africans] have to live with.”³¹⁵ The vast majority of undocumented Zimbabweans are not identified or deported and those who are—up to 200,000 a year or more—return to South Africa within days or weeks.³¹⁶ In the absence of building “a Great Wall of China between South Africa and Zimbabwe to stop people walking across,”³¹⁷ South Africa will continue to fruitlessly spend huge sums of money and large amounts of police resources on deporting Zimbabweans.

Fifth, regularization would provide data on hundreds of thousands of undocumented Zimbabweans. Because the vast majority of Zimbabweans enter the country without a visa, the South African authorities have no data on them, including data on identity and places of residence and work. Facilitating documented entry would be in the government’s interest: it would know how many people were in the country, who they are, and where they live and work. In the event of problems that may arise or upon expiration of their temporary status, the government would be able to identify people it registers under the proposed scheme.

Sixth, regularization would plug the gaps in the skilled labor market and ensure a level playing field for South African workers in the unskilled labor market. Regularizing their entry and stay in South Africa would help the authorities more easily identify Zimbabweans who can plug the well-documented gaps in both the skilled and unskilled South African labor market. The skilled labor market includes shortages of teachers and nurses.³¹⁸ The unskilled sector has a constant need for farm laborers and construction-site workers. Zimbabweans, many of whom work for less than the minimum wage in these two sectors, are often accused in the media of taking away jobs from South African workers. Some are undocumented and fall victim to farmers wanting to hire cheap labor with which South African nationals cannot compete.³¹⁹ Regularizing their stay would help the authorities to enforce employers’ minimum-wage obligations and create a level playing field on which South African nationals would not be disadvantaged when competing for jobs.

Seventh, regularization leading to the right to work would address Zimbabweans’ humanitarian needs in South Africa that would reduce the pressure on South African social assistance programs.Because of their undocumented status, Zimbabweans in South Africa are often unable to find or keep jobs, increasing their own humanitarian needs. Granting Zimbabweans the right to work in South Africa would help them fend for themselves, which would in turn reduce the number of desperate Zimbabweans seeking help from South Africa’s social assistance programs.

Finally, regularization leading to the right to work would help Zimbabweans support desperate families remaining in Zimbabwe, thereby possibly reducing the number of Zimbabweans fleeing their country for South Africa. Human Rights Watch’s research shows that most Zimbabweans are not coming to South Africa because they want to immigrate permanently but because it is the only way for them to help themselves and their families survive in Zimbabwe. The right to work would enable Zimbabweans to send desperately needed basic foodstuffs to their families in Zimbabwe. This, in turn, would possibly reduce the number of Zimbabweans, especially the most vulnerable—children, the elderly, PLWHA—coming to South Africa.

Current Options Available to Zimbabweans for Regularizing their Status in South Africa

Aside from claiming asylum which leads to an asylum seeker’s permit, Zimbabweans’ only other option to lawfully enter and remain in South Africa is to obtain a temporary residence permit.

Sections 11-24 of the 2002 Immigration Act set out the different types of temporary residence permits.³²⁰ The permits most likely to be held by unskilled or semi-skilled Zimbabweans are: visitors permit (s. 11) or permits granted to them under the corporate permit system (s. 21). Zimbabweans with specific skills who are able to fulfil the formal requirements can apply for quota work permits or general work permits (s. 19). The relatively limited number of Zimbabweans regularly trading in the border areas can apply for cross-border permits (s.24).

According to the 2002 Immigration Act and its regulations, foreign nationals must present a passport in order to obtain any of these permits. Many Zimbabweans do not have a passport. Since December 2006 the number without a passport has increased because the Zimbabwean authorities ran out of funds for importing the specific paper required to produce them.³²¹ In 2007 the Zimbabwean authorities began to issue emergency travel documents (ETDs) in place of passports. There has been no official decision by the DHA to recognize an ETD as a valid alternative to a Zimbabwean passport. However, anecdotal information obtained by Human Rights Watch suggests that in some cases immigration authorities do accept ETDs.³²²

In practice few Zimbabweans can enter under the temporary residence permit system.³²³ Most enter South Africa through informal border crossings or bribe immigration officials at the border; they enter without a permit and remain undocumented in South Africa.

Adopting a Broad-Based Approach

The South African government has a stark choice. It can either continue to try to ignore the reality of hundreds of thousands of undocumented Zimbabweans on its territory, allowing many to be mistreated by police, abused and exploited by employers, and hundreds of thousands to be removed haphazardly, arbitrarily, expensively and ineffectively, or it can choose to regularize their stay.

Given the large number of Zimbabweans believed to be in South Africa, the similar needs faced by all of them, and the operational challenges involved in any response, Human Rights Watch believes that the government should adopt the simplest, fairest, and most expedient possible approach.³²⁴

There are three available options based on South African law if the government wants to adopt such an approach.

The first option would be for the government to use the 1998 Refugees Act to make an official one-off declaration that all Zimbabweans coming to South Africa are refugees. The 1998 Refugees Act adopted verbatim the refugee definition from the 1969 OAU Convention, which includes “every person who, owing to… events seriously disturbing public order in either part or the whole of his country of origin…is compelled to leave” (emphasis added).³²⁵ The Act also authorizes the minister of home affairs to declare that a given “group of persons” qualifies for refugee status.³²⁶ The government could, therefore, find that political and economic conditions in Zimbabwe constitute “an event seriously disturbing public order,” and declare Zimbabweans as a group to be refugees.³²⁷

Although a blanket refugee declaration would be straight forward, within existing South African law, and easily verifiable, the government would likely find the political ramifications of such a declaration daunting.³²⁸ It should be noted, however, that a senior South African official has publicly referred to Zimbabweans in South Africa as “refugees.”³²⁹ It should further be noted with respect to the possible political implications of such a declaration that the OAU Convention states, “The grant of asylum to refugees is a peaceful and humanitarian act and shall not be regarded as an unfriendly act by any Member state.”³³⁰

A second option would be for the government to use its membership of SADC (Southern African Development Community) to facilitate Zimbabweans’ entry into South Africa. SADC’s Protocol on the Facilitation of Movement of Persons aims, among other things, to establish harmonized entry requirements including a visa-free right of entry for 90 days per year.³³¹ South Africa has already taken steps toward this, allowing nationals from eight SADC countries to enter South Africa on 30-day free visas.³³² It has extended the full 90-day free visa option to Botswana nationals.³³³ South Africa could make a similar arrangement with Zimbabwe, whether for 30, 60, or 90 days. However, such visa-free entry would not give Zimbabweans the right to work, which is the most important part of any solution to be adopted.

Although the SADC protocol does aim to establish a harmonized approach that enables all SADC nationals to work in any SADC country,³³⁴ as SADC’s richest country South Africa is reluctant to take steps without other key countries such as Botswana, SADC’s second richest country, doing the same. Adopting this part of the protocol would, therefore, require prolonged SADC-wide negotiations. Although the process could be accelerated, it is not a short-term option with regard to Zimbabweans in South Africa.

The third option would be for the government to use discretionary powers under immigration law to grant Zimbabweans in South Africa a temporary immigration status, for a limited period of time, and under specific terms and conditions.

Although Human Rights Watch prefers the first option, because the political and economic crisis in Zimbabwe can indeed be accurately described as “events seriously affecting public order” that are producing refugees, the political obstacles for that option and the limitations (in terms of work authorization and timeliness) of the second option, lead us to urge the South African government to adopt the third option as the most pragmatic and expedient way to provide broad-based protection temporarily for Zimbabweans in South Africa.

Exercising Discretion to Adopt a Broad-Based Approach: a New “Temporary Immigration Exemption Status for Zimbabweans”

Basis in law and overview of a new temporary permit scheme for Zimbabweans

Under section 31(2)(b) of the 2002 Immigration Act, the minister of home affairs  has discretionary power to exempt certain people from standard immigration procedures and “may under terms and conditions determined by him or her… grant a foreigner or a category of foreigners the rights of permanent residence for a specified or unspecified period when special circumstances exist which justify such a decision.”³³⁵

Under this provision, the minister could establish a new temporary permit scheme called “temporary immigration exemption status (TIES) for Zimbabweans.”³³⁶

The new TIES permit would identify “all Zimbabweans currently in South Africa or in Zimbabwe” as a “category of foreigners.” The “special circumstances” justifying the decision to use the exemption would be both the current post-election political crisis and economic situation in Zimbabwe and the need to temporarily regularize the undocumented status of the large numbers of Zimbabweans already present in South Africa. All Zimbabweans, whether already asylum seekers or in South Africa under a visitor’s or work permit, would have the right to apply for the new temporary permit.

TIES would obviate the need for most Zimbabweans to apply for asylum. Based on Human Rights Watch interviews with Zimbabweans in South Africa, eligibility for temporary status that grants the right to work is likely to meet many of the needs of most Zimbabweans. The authorities could exercise their discretion to prevent a person from concurrently holding both TIES and the status of asylum seeker. Nonetheless, this would be on the understanding that a failed asylum applicant would still be eligible for TIES or that a TIES permit holder would be permitted to seek asylum upon the expiration of TIES if she had an individualized fear of persecution.

The minister would set out procedures for facilitated (visa-free) entry into South Africa as well as for procedures to register Zimbabweans already in South Africa for TIES.

Section 31(2)(b) states that in granting an exemption the minister grants the “rights of permanent residence.” These are extensive³³⁷ and include the economic and social rights to housing assistance and to non-health-related social services such as food and social security.³³⁸ The minister could choose to exclude these latter rights on the grounds that it would be impossible for the South African government to extend these rights to up to one million people. She could, therefore, limit the rights granted under the new status to the right to work and to the rights that everyone present in South Africa has under South Africa’s Bill of Rights regardless of their legal status.³³⁹ The minister could justify not granting full permanent residence rights under the words “may under terms and conditions determined by her” in section 31(2)(b). In contrast, under South African law individuals recognized as refugees and granted asylum would enjoy the full range of rights in the Bill of Rights and would be entitled to apply for permanent residency status after five years.

Finally, the minister would make clear that as long as she has “good cause” provided under section 32(1)(b),³⁴⁰ she may at any time revoke the exemption that she has granted under section 31(2)(b). When TIES is withdrawn, the minister would have to justify her decision in writing with reference to the country conditions in Zimbabwe.

Details of a possible temporary immigration exemption status for Zimbabweans

Entry into South Africa and considerations for Zimbabweans already in South Africa

On arrival at the border,³⁴¹ Zimbabweans would have to prove their nationality by producing an identity document of some kind, whether an emergency travel document (issued in place of passports since December 2006) or some other kind of formal identity papers. They could be issued with a special temporary transit permit and would be told where to register in-country as a Zimbabwean in South Africa.

Zimbabweans already in South Africa would go directly to the registration centers. Zimbabweans in South Africa without identity papers proving their Zimbabwean nationality would have the option of proving their nationality in some other way, for example by answering a range of variable questions on Zimbabwe.³⁴²

Registration

Under the new TIES scheme, the DHA would set up special registration procedures in its offices in the country’s main urban centers. Ideally these would involve computerized recording of each TIES applicant’s registration. Upon registration each applicant would receive a TIES permit, preferably laminated to protect it from wear and tear, which would clearly state that the permit holder benefits from the “temporary immigration exemption status for Zimbabweans.”³⁴³ The permit would make clear that the TIES permit holder is legally present in South Africa, cannot be deported, and has the right to work.

Ending deportations of Zimbabweans

Given the current risk of refoulement that exists for Zimbabwean asylum seekers in South Africa, ending deportations of Zimbabweans is one of the most important priorities for the South African government. In setting up the TIES scheme, the authorities should announce an end to deportations of all TIES-registered Zimbabweans in South Africa. Zimbabweans who become “prohibited persons” or “undesirable persons” could be deported,³⁴⁴ unless the person is an asylum seeker or refugee, in which case the risk of persecution or a real risk of being returned to torture or cruel, inhuman, or degrading treatment must be taken into account as a barrier to deportation.³⁴⁵

The right to work

The centerpiece of TIES would be the right to work. The TIES permit would clearly indicate that the bearer is authorized to work. This would address Zimbabweans’ most urgent need to make enough money to support themselves and their families in Zimbabwe.

The South African authorities would almost certainly face criticism from various sides for granting the right to work on the grounds that this would take away jobs from South Africa’s 47.9 million residents³⁴⁶ who are already facing an unemployment rate of 23 percent.³⁴⁷

A government information campaign could inform South Africans that hundreds of thousands of Zimbabweans are already working without work permits in South Africa, and that officially granting them the right to work would help to regulate their access to the job market and help control wages, guaranteeing equal access to the job market for South Africans. It could also make clear that South Africa could use skilled Zimbabweans to fill its well-documented skills shortages, and that unskilled Zimbabweans working in the informal sector (domestic work, cleaning, street trading, small businesses such as internet cafes etc.) are not a threat to South African jobs, given that these jobs are overwhelmingly new jobs in an ever-expandable market.