INTRODUCTION
The Refugee Legal and Advocacy Centre welcomes this opportunity to comment on the Refugees Amendment Bill. The interests of asylum seekers, the provisions of international law, the Bill of Rights of the Constitution of the Republic, the current Refugees Act 130 of 1998, and case law of several court decisions of the Republic have all been taken into account in preparing these submissions. We have also attempted our very best to balance the interests of the lawmakers versus the above factors. We therefore request that our submission be duly considered by the Honorable Members of Parliament.
PURPOSE OF THE BILL
We are concerned with the purposes of the Bill, which are “to include further provisions relating to the disqualification from refugee status…to clarify the procedure relating to conditions attached to asylum seeker visas and abandonment of applications… to provide for the withdrawal of refugee status in respect of categories of refugees … to provide for additional offences and penalties…and the “withdrawal of refugee status,”. We are perplexed with the fact that the department seeks to withdraw protection from those that already have been granted it instead of prioritizing clearing the appeal backlog which dates back to at least the last five years. The phrasing of the Bill calls into question the Department’s commitment to upholding its obligations under the U.N. Refugee Convention.
SECTION 1- DEFINITIONS
We are pleased with the substitution of the word “permit” with “visa”. Our office has noted on numerous occasions that most employers do turn away refugees and asylum seekers from work on the presupposed notion that these permits do not allow them to work. Whilst legal scholars may attempt to argue otherwise, it is a general understanding that the corporate world is accustomed to the use of the word “visa” as opposed to permit. We are therefore applauding the department for its intentions to change the name it uses to refer to these documents. We request that along with the change, the Department conducts awareness workshops with employers to sensitize them on the rights that flow from the above documents. Our office is more than open to partnering with the Department in this regard.
However, we are concerned with the narrow definition of dependent. The amendment proposes that the words “unmarried minor, any destitute, aged parent of asylum seeker, and who is included by the asylum seeker in the application for asylum” be inserted to define a qualified dependent. We agree it is both logical and acceptable that this definition excludes a minor who is married. However, we oppose that this definition only allows an adopted child or spouse to be recognized as a dependent if the adoption/marriage took place in the country of origin. This is a discriminatory and unreasonable proposal. Will dependents be denied a right to documentation merely because the adoption or marriage occurred outside their country of origin? The Regulations to the Refugees Act, NO R 366 define dependent and family as follows:
“dependent means an applicant’s spouse, unmarried or dependent child under the age of 18 years or any destitute, aged or infirm member of the principal applicant’s family.”
“family means the father and mother and any children who, by reason of age or disability, are, in the opinion of the Refugee Status Determination Officer, mainly dependent on the father or mother for support. Family also means an aged or infirm member of the principal applicant’s family”
We are also concerned that this amendment further restricts dependent eligibility to parents, thereby excluding, for example, grandparents who depend on the principal applicant for support. We have noted that the definition of dependent in the Compensation for Occupational Injuries and Diseases Act 130 of 1993 includes … “a widow, widower, or any person with whom the deceased was living with at the time, a child over the age of 18 years of the employee, or his or her spouse… or a grandparent, or a grandchild of the employee…or any person who in the opinion of the commissioner was acting in the place of the parent”. We are therefore perplexed that the Department seeks to limit the definition in as far as refugees and asylum seekers are concerned, yet the lawmakers provides such a liberal and all-encompassing definition under COIDA.
We also submit that a restrictive definition of the term dependent is a violation of the principle of unity of the family, which is one of the binding principles in terms of the UNHCR Convention. We therefore recommend that for the sake of uniformity and the indigent family members and dependents of the main applicant the section read as follows:
“dependent in relation to an asylum seeker or a refugee, means any unmarried minor dependent child, including an adopted child if such child was legally adopted by the asylum seeker or refugee, a spouse legally married to the asylum seeker or refugee or any destitute, aged or infirm parent of such asylum seeker or refugee who is dependent on him or her , or any other family member who is dependent on the principal applicant for support, and who can prove such dependency, and provided that such family member was included by the asylum seeker in the application for asylum or good cause is shown why such dependent was not included in the application”
SECTION 2 – EXCLUSION FROM REFUGEE STATUS
We have taken note of the proposed changes to section 4 of the Act. It is our submission that the amendments violate both the principle of non-refoulement and the right to life entrenched in the Constitution of the Republic. Most worrisome are clauses (e) through to (h), which are individually addressed below.
The amendments seek to disqualify a person from refugee status if the person has (e) committed a crime in the Republic which is listed in Schedule 2 of the Criminal Law Amendment Act, (e) has committed an offence which is punishable by imprisonment without
the option of a fine, (f) has committed an offence in relation to the Immigration Act, the Identification Act, or the South African passports and Travel Documents Act, (g) is a fugitive from justice in another country where the rule of law is upheld by a recognized judiciary, (h) having entered the Republic through other means than a port of entry, fails to satisfy the RSDO that there are compelling reasons for such entry and has failed to make an application for asylum within five days of entry into the Republic as contemplated in section 21.
Clause (e) – Criminal Offences
This clause seeks to disqualify a person from refugee status if the person has committed a crime in the Republic that is listed in Schedule 2 of the Criminal Law Amendment Act, or that is punishable by imprisonment without the option of a fine. While disqualification based on criminal activity, particularly those concerning terrorist activities or against the security of the government rendering protection, is acceptable and in line with the objectives of the Convention, we are of the bona fide
opinion that the right to non-refoulement and, in conjunction, the right to life, supersedes other concerns and must be given heavy consideration. The right to non-refoulement is premised on the notion that an asylum seeker and/or a refugee will face either persecution and/or death if returned against his will to a country of origin or of nationality. Therefore, refusing protection to an asylum seeker based on their commission of an offence that does not amount to treason is a breach of international law and the Constitution. Section 7 of the Constitution of the Republic reads:
“This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.”
The Bill of Rights also extends to refugees and asylum seekers in the Republic. Furthermore, the Constitutional Court held in the landmark case S v Makwanyane (CCT3/94 [1995] ZACC 3) that the right to life is an absolute right that cannot be limited in any way.
Clause (f) – Other Offences
This clause is an overzealous provision that seeks to disqualify asylum seekers who have committed any offence against the Immigration Act, the Identification Act, or the South African Passports and Travel Documents Act. This provision is preposterous when considering the numerous asylum seekers and refugees who have, despite countless efforts, committed such “offences” without choice due to the inefficient asylum system that continues to be overwhelmed by backlogs. And again, this clause violates the foundational right to non-refoulement that underpins the country’s refugee law. This clause is but another example of DHA’s attempts to frustrate and hinder refugees and asylum seekers from extending their permits. Other examples include the closing down of refugee reception offices and leaving only three functional offices in the country, as well as the arbitrary practice of rrequiring applicants to return to the original offices of application for obtaining extensions. These practices have imposed enormous financial burdens on asylum seekers, and those without the financial means cannot meet their extension deadlines and thus have expired permits. It is
unacceptable for the DHA to dismiss the right to non-refoulement over an extension of a permit, particularly when extensions are made so difficult to obtain.
In the case of Abdi v the Minister of Home Affairs 734/10 2011 ZASCA 2, the judge lambasted the DHA for failing to recognize and promote the rights of refugees and asylum seekers. On paragraph 33 of the judgment the court held that:
“section 7 imposes the duty on organs of state- and thus on officials of the Department-to respect, promote and fulfill the rights in the Bill of Rights…it is obvious from the manner in which they dealt with the appellants that they had little regard to their fears for their safety should they be compelled to return to Somalia”.
We therefore recommend that before the law is changed to disqualify refugees and asylum seekers for contravening the Immigration Act or any other Act, the department prioritizes the functioning and efficiency of its staff thereof.
Clause (g) – Fugitives from Justice
In Mohammed and another v President of the Republic of South Africa and others (Society for the Abolition of the Death Penalty in South Africa and another intervening) 2001 (3) SA 893 (CC), the court held that this country is underpinned by the concept of and respect for human rights including the right to life and dignity, and that “this must be demonstrated by the state in everything it does.” We accordingly submit that in handling matters concerning fugitives of justice, due regard be nonetheless had to the above rights, regardless of the seriousness and severity of the offence.
Clause (h) – Designated Port of Entry
To the best of our knowledge, the country signed and assented to the international Convention without making any reservations, which therefore means that article 31 of the Convention is binding upon the state. As such, this proposed departure that aims to impose penalties based on illegal entry and/or presence is not in line with the principle of non-refoulement, which has already been explained at length above. It is inadvisable for the state to disqualify an applicant based on port of entry without considering the merits of the application. We thus recommend that the department focuses on whether the asylum seeker is a bona fide applicant with a valid claim, rather than dismissing cases solely according to whether the applicant entered the country legal or not.
As if that were not enough, the above provisions will all be in conflict with the provisions of section 2 (the refoulement principle provision) of the Refugees Act 130
of 1998. The section prohibits the expulsion, extradition, return, deportation and refusal of entry of any person by the state or any official thereof, if:
“He or she may be subjected to persecution on account of his or her race, religion, nationality, political opinion, or membership of a particular social group or his or her life, physical safety or freedom would be threatened on account of external aggression, occupation, foreign domination, or other events seriously disturbing or disrupting public order in either part or whole of that country.”
Clause (i) – Five-day Application Period
While we are in general agreement with this provision, we recommend that subsection (i) is revised to read as follows:
“has failed to make an application for asylum within five days of entry into the Republic as contemplated in section 21, and having failed to do so has been given an opportunity to reasonably explain such failure, and has failed to reasonably convince the Refugee Status Determination Officer, which reason has been communicated to the applicant in writing; provided that despite failure to reasonably explain such a failure, no applicant will be denied the right to lodge a claim for asylum and have that claim adjudicated before being disqualified.”
In other words, we recommend that the issue of failure to lodge an application within the five-day period only be raised once adjudication on the merits of the application has taken place.
SECTION 3 – DISQUALIFICATIONS
Clause (a) – Re-availing
We have also noted the provisions of section 3, the intention to amend section 5 of the principal Act. While we do agree that those who voluntarily return to the country they fled be disqualified, our concern is with the provisions of section 5 (a). We are of the opinion that the phrase “in any way” is too vague and thus is subject to a wide range of interpretations, thereby giving rise to problems and complications. For example, DRC nationals who seek to have their foreign qualifications evaluated by SAQA are first required to submit their foreign qualifications at their Pretoria Embassy, after which the embassy must issue a Homologation Certificate before the qualifications are sent to SAQA. Would this therefore be construed as voluntarily re-availing oneself to the protection of his or her country? We recommend that this section be removed completely, or alternatively it be phrased to make for exceptions:
“he or she voluntarily re-avails himself or herself to the protection of the country of his or her nationality, provided that contact made with the embassy of the country of origin or of nationality for purposes of facilitating integration in the country shall not be construed as re-availing oneself for purposes of protection.”
Clause (f) – Offences
Our concerns with the provisions of this clause have already been addressed above and we submit that those arguments also apply here mutatis mutandis.
SECTION 6- AMENDMENT SECTION 8
We have acquainted ourselves with the provisions of this section. We recommend that subsection (1), outlined in clause (b) of this section, read as follows:
“notwithstanding the provisions of any other law, the Director-General may, by notice in the Gazette , establish as many Refugee Reception Offices in the Republic as he or she deems fit and necessary for the purposes of this Act, and may disestablish any such office, by notice in the Gazette, if deemed necessary for the proper administration of this Act, provided that proper administrative measures are taken prior to the disestablishment of such office (s) and provided that at all times, the actions of the Director-General are taken having due regard to the circumstances of the refugees and asylum seekers and striking such a balance between such interests and the objectives of the Act.”
SECTION 15- AMENDING SECTION 21
We would like to comment on the first subsection, in particular on the lodgment of an application within 5 days of entry into the Republic. Whilst we have no objections to such, we recommend that the section be phrased to allow for exceptions, and recommend that it reads as follows:
“an application for asylum must be made in person in accordance with the prescribed procedures, within five days of entry into the Republic, provided that failure thereof shall not disqualify the applicant, on condition that the applicant avails him/herself at his/her earliest possible opportunity and provides a reasonable explanation of the failure thereof, and provided further that any applicant who did not and or failed to submit his biometrics or other data to an immigration officer at a designated port of entry is given a reasonable opportunity to do, and to explain the failure to have done so”.
SUBSTITUTION OF SUBSECTION 4
We have also noted the proposed substitution of this subsection. We are concerned with the fact that “opportunity to exhaust his or her rights of review or appeal” is being substituted with the words “application has been reviewed in terms of section 24A…” and would recommend that instead the words “has exhausted his/her legal remedies available to him or her” be used.
SECTION 17 –AMENDMENT OF SECTION 21 B
We have also noted the proposed changes with regards the cessation of dependency. We request, that in as much as this subsection provides that the person may apply for asylum himself/ herself, that these be considered for regularization under the Immigration Act 13 of 2002. We submit the above as we believe that the onus of proof on dependency is difficult albeit impossible to discharge with regards the aspect of persecution as (especially in the case of minor children) these would have left the country at a young age. Therefore, for the department to request that they lodge their own applications when they come of age is tantamount to disposing of them through the asylum regime.
SECTION 18- SUBSTITUTION OF SECTION 22- ASYLUM SEEKER VISAS
We are concerned with the provisions of subsection 5, the withdrawal of the asylum seeker visa by the Director General. This provision endangers the protection of bona fide asylum seekers in that an application may be erroneously rejected by the RSDOs, and before such a person may exercise the recourses available, the Director General may decide to withdraw the visa. We therefore strongly recommend that another paragraph, paragraph (e), be introduced to read as follows:
“Provided that the asylum seeker has been afforded an opportunity to exercise the right to either appeal or review the rejection as applicable, within the prescribed timeframe, and that having been afforded such an opportunity the asylum seeker has either failed to exercise the right, or having exercised the right, the Director General is convinced that there are no grounds for rendering protection (or the applicant does not meet the criteria).”
We are further concerned with the provisions of subsections 6 to 11 of this section. We are of the opinion that it will be cumbersome to require RSDOs to consider the ability of an applicant to sustain himself while the application is adjudicated. From the onset, the application is meant to focus on the merits of the asylum claim itself, in line with international law. Social standing and prowess do not alter the validity of an asylum claim. This will only add to the already lengthy adjudication process. We recommend therefore that this section be omitted altogether. Instead of these assessments, we recommend that upon completion of the interview, the RSDOs refer applicants to the UNHCR offices and/or its partners for possible consideration for social assistance. We are against the idea of having RSDOs bear the additional burden of conducting sustainability interviews.
For this reason, we are against the provisions of subsection 8. In the case of Watchenuka, the court held that:
“the freedom to engage in productive work-even where that is not required in order to survive-is indeed an important component of human dignity…for mankind is eminently a social species with the instinct for meaningful association”.
We thus strongly recommend that the right to work be an inherent right at the time that the visa is issued pending the finalization of the application, on condition that the provisions of subsection 9 are applied. We also submit that the time frame be increased from 14 days to 6 months. This would mean
that within the first 6 months, an asylum seeker would have to prove that he/she is gainfully employed, failing which the right be revoked.
We are also concerned with the provisions of subsection 12. Whilst the reading of it gives an impression that the department is allowing a grace period of 30 days for those whose permits have expired to report to the offices for extensions, it appears to be in conflict with the provisions of section 2 which seeks to disqualify asylum seekers who have committed an immigration offence. If these two are read together, it raises an issue of ambiguity. Is the department stating that despite committing an offence in terms of the Immigration Act (failing to renew /extend permit on time), one is entitled to a 30-day period before being disqualified? This needs to be clarified.
We have further noted that the 30-day period is subject to only two exceptions, which are “hospitalization or any other form of institutionalization”. We strongly recommend that this clause be struck off, for reasons that have been highlighted throughout this submission. We further fear that this section may be abused by DHA officials. Even more worrisome is the fact that a disqualified asylum seeker may be barred from reapplying or having the disqualification decision reviewed. Without such recourse, refoulement without due process may take place in violation of the Convention, the Constitution, and the purpose of the Refugee Act that this section intends to amend.
SECTION 19 –AMENDMENT OF SECTION 23.
We have noted the provisions of this section and are both puzzled and amazed by it. A reading of this section creates nothing but confusion in the mind of the reader and clarity is therefore sought. It reads as follows:
“If the Director-General has withdrawn an asylum seeker visa … he or she may, subject to section 29, cause the holder to be arrested and detained pending the finalization of the application for asylum…”.
The section provides that the Director-General may withdraw an asylum seeker visa, yet it further provides that he or she may cause the holder to be arrested and detained pending finalization of the very application purported to be withdrawn. Our office is seeking clarity on how an application can be finalized if it has already been withdrawn? We also submit that in carrying out these detentions, the Director-General and the officials comply with the provisions relating to detentions which have been reiterated time and time again by courts. We pray that the provisions of this section be applied mutatis mutandis for section 24.
SECTION 23-AMENDMENT OF SECTION 27 OF PRINCIPAL ACT.
We are saddened by the provisions of this section. The Department is seeking to extend the number of years in which a refugee may be considered for permanent residence. No logical explanation exists for this section, save for the assumption that the department is seeking to ensure that integration fails at all costs. By applying for and acquiring permanent residence, refugees become a step closer to calling the country a second home. Attempting to block this
opportunity for refugees is tantamount of the intentions of the Department, flush out those that do not belong here. It is saddening to further note that a similar approach was adopted in terms of the Immigration Act 13 of 2002.
In the case of Moustapha Dabone, an application was lodged by the afore-mention to declare certain provisions of the latter Act requiring applicants for permanent residence to be passport holders, and to abandon their refugee and asylum claims. Despite an order being granted by agreement between the parties (the Dabone order), the Director- General issued a new directive, Directive 21, on the 3rd of February 2016, announcing that the order will no longer be complied with. It is no mere coincidence that this provision is introduced at a time that circular has also been passed. It is so deplorable that the department which is meant to uphold the rights of victims of human rights violations seeks to deprive them of the right to be considered for permanent residence, and we move that this section be struck.
SECTION 27- AMENDMENT OF SECTION 36-WITHDRAWAL OF REFUGEE STATUS
We have also noted the provisions of this section. We are perplexed to note that the provisions of this section depart from those contained in Regulation 17 of the Regulations, which provide amongst others that notice must be given to the refugee:
“Explaining that the Standing Committee intends to withdraw the status identifying the reasons for the intended withdrawal giving the refugee notice that he or she has the right to make a written submission to respond to the Standing Committee and that the burden of proof is on the Standing Committee to establish that a refugee is subject to one or more grounds for withdrawal.”
What both these provisions lack is a reference to the Promotion of Administrative Justice Act notifying the refugee of his or her right to challenge this decision which undoubtedly will adversely affect the rights of the latter? We therefore pray that the notice makes reference to the latter Act.
CONCLUSION
The Refugee Legal and Advocacy Centre submits that the above proposed changes do not meet the standard required by international law, the laws of the Republic, and do not take cognizance of the rights of the victims of gross human rights violations. We submit, in the words of Dario Fo, that, “It is extremely dangerous to talk about limits or borders. It is vital, instead, that we remain completely open, that we are always involved, and aim to contribute personally in social events”, and if we may add, render that safe haven to those whose states have failed them and their families.
by
ALECK TAPIWA KUHUDZAI
Program Director
Refugee Legal and Advocacy Centre
and
SISEHO MINYOI
Policy Reform and Communications Officer
Refugee Legal and Advocacy Centre.