Menu Close

How South Africa is denying refugees their rights: what needs to change

Refugees who fled xenophobic attacks recently protested in Cape Town demanding to be sent elsewhere. Brenton Geach/Gallo Images via Getty Images

South Africa hosted about 273,488 refugees and asylum seekers, of whom 84% come from sub-Saharan Africa, in 2018 - the latest period for which figures are available. They come mostly from Zimbabwe, Ethiopia, Nigeria and the Democratic Republic of Congo. The main reasons for fleeing to South Africa are to escape poverty, political violence and war.

The policy and law applying to refugees and asylum seekers in South Africa is largely progressive. It’s mostly contained in the Refugee Act of 1998. Associated rights to well-being, equality before the law, human dignity and non discrimination are also enshrined in South Africa’s bill of rights.

Refugees can settle anywhere in the country and enjoy freedom of movement. Special permits have also allowed economic migrants from Lesotho and Zimbabwe to work and live in the country.

This approach is in contrast to the majority of African states, which put refugees in camps, withholding several rights to social support, work and free movement.

But in practice, refugees in South Africa also face many challenges in accessing their rights to social protections such as legal documents, social grants and security of stay.

The government’s progressive ideas are seldom reflected by the officials entrusted with implementing them. Officials, particularly in the departments of social development, education, home affairs and the police stand accused of bias, prejudice and unprofessionalism.

My PhD thesis, examined the implementation of the Refugee Act, and the factors that affect the ability of forced migrants to convert their rights into protections. I found that the inconsistent interpretation and application of the act makes it difficult for refugees and asylum seekers to access their rights.

The failure to regularise the national asylum system, which is responsible for the documentation of applicants for refugee status and adjudication of appeals, has led to huge capacity constraints. These are evidenced by backlogs that leave many applicants without requisite documents.

The consequences of this are far reaching. Vulnerable undocumented people make it harder to plan or manage social services for all. It also poses a threat to security, stability and social cohesion.

Bureaucracy not working efficiently

South Africa’s asylum management system is designed for 50,000 applications a year, but has had to grapple with numbers as high as 222,300 in 2009 and 62,200 in 2015.

While transit permits are issued at the border to those intending to claim asylum (giving them 14 days to do so), not everyone receives them. Such people are thus unlawfully refused the right to apply for asylum.

Read more: South Africa takes fresh steps to restrict rights of refugees

The asylum application process is quite simple. It includes having one’s fingerprints and photograph taken, and undergoing an assessment of the reasons for seeking refugee status. The rejections have been as high as 96%. While bureaucratic inefficiency is partly a cause for high rejection rates, illegitimate asylum claims by mostly economic immigrants from relatively stable nations have also contributed. These rejections have resulted in a high number of appeals and backlogs.

The backlog is worsened by the fact that appeals are adjudicated by a single Refugee Appeal Board for the whole country. The board sits only two or three times a year. The illegitimate rejection of appeals is rampant, with Amnesty International partly attributing this to “mistakes of fact”.

In 2015, South Africa had its highest backlog, with over a million asylum applications pending at any stage of the asylum procedure. A 2019 survey of migrant children in Limpopo, Western Cape and Gauteng found that only 7.99% had refugee status papers, 15.09% had asylum papers and close to 40% were undocumented.

Zimbabwean illegal migrants skip the border into South Africa. EFE-EPA/Kim Ludbrook

Most of the refugee reception offices at border areas were closed in 2011-2012, leaving only three open in (Musina, Pretoria and Durban). The authorities claimed this would speed up the processing of asylum applications, and make it easier to separate economic migrants from genuine refugees..

Instead, it has made the renewal of legal documents to stay in the country more difficult and expensive for asylum seekers. This is mostly due to the high costs of travelling to the few remaining offices to renew asylum papers every six months.

The Cape Town refugee reception office was only reopened in January 2020 after being closed for seven years. This was after the High Court had ordered its reopening in March 2018.

Experiences of migrants

My study on the way government departments in the KwaZulu-Natal Province implement the Refugee Act supports the view that the actions of low level officials counteract government refugee policy. I conducted interviews and focus group discussions with members of the Congolese refugee community in Pietermaritzburg. I also interviewed several nongovernmental organisations that work with refugees.

The refugee participants in the study complained of being forced to pay bribes and being made to wait longer for services, or being denied such services altogether.

Some municipal councillors were also accused of denying refugees the right to work or to trade, by declaring trading spaces as a preserve for citizens only. This is contrary to the Refugee Act, which gives refugees the right to earn income.

Read more: Governments need to do more for refugees affected by coronavirus: here's how

The Act also gives refugee permit holders who have been in South Africa for more than five years, the right to apply for permanent residence. This right is also contained in the United Nations protocol on the status of refugees.

But, this has remained elusive. Over 67% of those who qualify continue to have only asylum seeker permits beyond five years. Those who do qualify must first apply for certification from the Standing Committee for Refugees. If they fail, their refugee status permits are withdrawn, leading many to refrain from applying.

Thus, security of stay has remained illusive for many refugees. Some have been stuck at various stages of the asylum procedure for over 19 years. Without security of stay, refugees’ claim to civil and property rights in South Africa remains low.

What needs to happen

South Africa can take a few basic steps to improve its bureaucracy so that asylum seekers can enjoy their legal rights .

The most immediate interventions would be to streamline the workings of its asylum application system and the Refugee Appeal Board. Their technical capacity needs to be improved to cope with the volume of applications.

Stakeholders like academics, faith leaders and nongovernmental organisations can also play a part, as recommended by the UN High Commissioner for Refugees’ Comprehensive Refugee Response Framework. They can work together to share information, exchange skills, offer human rights education and mediate in disputes. They can help build the capacity of state organs to perform efficiently, and with the necessary empathy. They could also help monitor and evaluate the performance of the bureaucrats.

A purely top down model, where the state is solely responsible for implementing refugee policy, is clearly not working well. It’s now time to try a new approach: partnering with other stakeholders to ensure that government’s progressive policies actually benefit refugees.

Want to write?

Write an article and join a growing community of more than 185,300 academics and researchers from 4,982 institutions.

Register now