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South Africa hosted some 273,488 refugees and asylum seekers, of which 84% come from sub-Saharan Africa, in 2018, the latest period for which figures are available. They mainly come from Zimbabwe, Ethiopia, Nigeria and the Democratic Republic of the Congo. The main reasons for fleeing to South Africa are to escape poverty, political violence and war.
The policy and law that applies to refugees and asylum seekers in South Africa is largely progressive. It is mainly contained in the Refugees Act 1998. The rights associated with well-being, equality before the law, human dignity and non-discrimination are also enshrined in the South African Bill of Rights.
Refugees can settle anywhere in the country and enjoy freedom of movement. Special permits have also allowed economic immigrants from Lesotho and Zimbabwe to work and live in the country.
This approach contrasts with most African states, which place refugees in camps, retaining various rights of social support, work and free movement.
But in practice, refugees in South Africa also face many challenges in accessing their rights to social protection, such as legal documents, social benefits and security of stay.
Progressive government ideas are seldom reflected in the officials charged with implementing them. Officials, particularly in the departments of social development, education, home affairs and the police, are accused of bias, prejudice and lack of professionalism.
My doctoral thesis examined the implementation of the Refugee Law and the factors that affect the ability of forced migrants to convert their rights into protections. I found that inconsistent interpretation and application of the law makes it difficult for refugees and asylum seekers to access their rights.
The lack of regularization of the national asylum system, which is responsible for the documentation of asylum seekers and the adjudication of appeals, has led to huge capacity constraints. This is evidenced by the delays that leave many applicants without the necessary documents.
The consequences of this are far-reaching. Vulnerable undocumented people make it difficult to plan or manage social services for all. It also represents a threat to security, stability and social cohesion.
Bureaucracy does not work efficiently
South Africa’s asylum management system is designed for 50,000 applications a year, but it has had to deal with numbers as high as 222,300 in 2009 and 62,200 in 2015.
Although transit permits are issued at the border to those who intend to apply for asylum (giving them 14 days to do so), not all receive them. Therefore, these people are illegally denied the right to apply for asylum.
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The asylum application process is quite simple. It includes taking fingerprints and photography, and undergoing an assessment of the reasons for applying for refugee status. Rejections have been as high as 96%. While bureaucratic inefficiency is in part a cause of high rejection rates, illegal asylum claims by mostly economic immigrants from relatively stable nations have also contributed. These denials have led to a large number of appeals and delays.
The delay is compounded by the fact that appeals are judged by a single Refugee Appeal Board for the entire country. The board sits only two or three times a year. The illegitimate rejection of appeals is rampant, and Amnesty International attributes this in part to “factual errors”.
In 2015, South Africa lagged most, 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 documents, 15.09% had asylum documents, and about 40% were undocumented.
EFE-EPA / Kim Ludbrook
Most of the refugee reception offices in the border areas closed in 2011-2012, leaving only three open in (Musina, Pretoria and Durban). The authorities stated that this would speed up the processing of asylum claims and facilitate the separation of 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 mainly due to the high costs of traveling to the few remaining offices to renew asylum documents every six months.
The Cape Town refugee reception office only reopened in January 2020 after being closed for seven years. This was after the High Court ordered its reopening in March 2018.
Migrant experiences
My study of how KwaZulu-Natal province government departments implement the Refugee Law 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 non-governmental organizations that work with refugees.
Refugee study participants complained of being forced to pay bribes and waiting longer for services, or being denied completely.
Some city council members were also accused of denying refugees the right to work or trade, by declaring commercial spaces as an exclusive reservation for citizens. This is contrary to the Refugee Law, which gives refugees the right to earn an income.
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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 situation of refugees.
But, this has remained elusive. More than 67% of those who qualify continue to only have permits for asylum seekers after five years. Those who 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.
Therefore, the security of stay has been illusory for many refugees. Some have been trapped at various stages of the asylum procedure for over 19 years. Without the security of stay, refugees’ claim for civil and property rights in South Africa remains low.
What has to happen
South Africa can take some basic steps to improve its bureaucracy so that asylum seekers can enjoy their legal rights.
The most immediate interventions would be to streamline the operation of its asylum application system and the Refugee Appeal Board. You need to improve your technical capacity to cope with the volume of applications.
Stakeholders such as academics, religious leaders and non-governmental organizations may also participate, as recommended by the United Nations High Commissioner’s Comprehensive Refugee Response Framework. They can work together to share information, exchange skills, offer human rights education and mediate disputes. They can help develop the capacity of state bodies to function efficiently and with the necessary empathy. They could also help monitor and evaluate the performance of bureaucrats.
A purely top-down model, where the state is solely responsible for implementing the refugee policy, is clearly not working well. Now is the time to try a new approach: partner with other stakeholders to ensure that progressive government policies really benefit refugees.
