Seminar on the future of asylum in South Africa

As part of this year's Public Interest Law Gathering at Wits University, Lawyers for Human Rights hosted a day-long seminar on The future of asylum in South Africa with panel discussions on the recent shifts in asylum policy, local integration and the government's decision to close and relocate urban refugee centres and the protection challenges caused by ongoing xenophobic attacks on foreign traders.

Speakers included Clementine Nkweta-Salami (Regional Representative UNHCR), Kaajal Ramjathan-Keogh (LHR), Solomon Wasia Masitsa (Kituo cha Sheria, Kenya) Dr Roni Amit (ACMS), Prof Loren Landau (ACMS), William Kerfoot (LRC), Mpilo Shange-Butane (CoRMSA), David Roussouw (NMMU Port Elizabeth), Mohamed Ali Hirey (Somali Association of SA) and Alfani Yoyo (CoRMSA).

The seminar was official opened by the United Nations High Commissioner for Refugees’ Regional Representative Clementine Nkweta Salami. She highlighted that 15.4-million people were considered refugees globally with a further 55.2-million people being internally displaced. South Africa, she said, was considered one of the biggest hosts to asylum-seekers. This meant South Africa should be recognised for its efforts in providing refugee protection.

Local integration is an important part of South Africa’s refugee model and the fundamental question around what stands in the way of the full realisation of this must be asked, she commented.

Nkweta-Salami told the gathering that South Africa had adopted a progressive legal framework to protect refugees. However, the government was struggling to fully implement the law due to the high volume of applicantions, exacerbated by the fact that refugee determination was being done on an individual basis with no provision for prima facie status determination.

Nkweta-Salami also raised concerns around the Department of Home Affairs’ decision to close several urban refugee reception offices, asking government to examine the impact these closures have on asylum-seekers and refugees in acessing the system. She cautioned that the proposed relocation of refugee reception and the establishment of holding centres may prove to be resource intensive, adding there was a need for in-depth consultation with all stakeholders.

Salami commended South Africa for its efforts as part of a collective community of nations to protect refugees and concluded that refugees also make positive contributions to the economy and social life.

Panel 1: Accessing Asylum Protection – a discussion around the closures of the metropolitan refugee reception ofices in Cape Town and Port Elizabeth and the future of access to asylum in these cities.

David Cote of Lawyers for Human Rights, William Kerfoot of the Legal Resources Centre in Cape Town, David Rossouw of the Nelson Mandela Metropolitan University in Port Elizabeth and Solomon Wasai Masitsa from Kenya all agreed that while South Africa had progressive legislation relating to the protection of refugees and asylum-seekers, the pitfall remained implementation. They emphasised that South Africa was not alone in failing to effectively implemnent refugee laws.

William Kerfoot discussed the crisis of legality and several court cases instituted against the Home Affairs regarding its unilateral decision to move the Cape Town reception office (, on more than one occasion. He also touched on Home Affairs’ lack of capability and commitment in complying with the zoning requirements of the new premises. Kerfoot was critical of Home Affairs’ seeming attitude of non-compliance with court orders issued against them.

David Rossouw focussed on the unilateral decision taken by Home Affairs to close the Port Elizabeth reception office without consulting the Standing Committee for Refugee Affairs. He elaborated on a court order to reopen the RRO, adding a new review application was launched challenging this fresh decision by Home Affairs to close the Port Elizabeth RRO and, according to the order granted, requires that Home Affairs re-open a fully functional RRO in the Nelson Mandela Metropolitan District by 31 October 2013.

Solomon Wasai Masitsa highlighted the similarities and difference between Kenya and South Africa regarding perceptions of refugees. He gave an overview of the current position of refugees in Kenya, highlighting the difficulties refugees encounter, including poor living conditions in refugee camps, corruption and bribery and police harassment. He pointed out that in Kenya, a migrant who does not have documentation would be brought before a lower court and charged with unlawful presence, adding that in South Africa it appeared to be a much larger issue and possibly a more administrative one.

Panel 2: Increasing xenophobic tensions and the threat to refugee traders’ right to work
The panel centred around xenophobia and its consequences to local integration. The panelists also reflected on civil society’s response to the scurge of xenophobic attacks. The scope of xenophobia was explained by Alphonse Munyaneza of the UNHCR who said we should rather redefine this ‘fear’ as Afrophobia. Alfani Yoyo of CoRMSA disagreed, saying South Africa had experienced a fear of foreigners generally which included Chinese, Bangladeshi, Pakistani and other nationals of African countries.

Loren Landau from Wits University’s African Centre for Migration and Society explored the socio-legal perspective of xenophobia. He suggested that xenophobia was not a general attitude but specific to localised demographics. In many areas foreigners and locals integrate well but, in areas where there are no structural institutions, there are extreme cases of discrimination against foreigners. What is inevitably occurring is that ideologies formed by gangsters and mob mentality are being translated into national policy like the right to work or to own a business. He pointed out that there was no distinguishing factors between illegal foreigners and refugees. It is not about having legal status, as this offers no protection against this mob mentality. Moreover, due to the lack of institutional structures in communities that could otherwise allow for new comers to be integrated into the community, he said. He added the temporary nature of being a refugee promoted refugees becoming isolated. Consequentially, he said, they group together in living spaces which creates conflict within local communities. The lack of conflict resolution mechanism and fear of the police to intervene exacerbates the situation.

Alfani Yoyo of CoRMSA pointed out that South Africa was not foreign to internal displacement but said it could be effectively managed. Temporary displacement has decreased since 2012. It was observed that in many areas locals prefer having foreigners within communities especially where they set up spaza shops etc. as this convenience was highly beneficial for locals. Migrants have successfully cornered the spaza shop business allowing for locals to obtain commodities without travelling long distances.

He stated that integration may be improved through workshops where locals and refugees could be educated and informed of the rights and obligations afforded to refugees. This, together with improving the response of the police, may drastically improve the current mindset of local communities. This will create closer communities which are a more sustainable and stable environment. South Africans (government and civil society) must look to find common elements between locals and migrants and stop differentiating between them, he concluded.

Mohamed Ali Hirey, a representative of the Somali Association of South Africa, gave the audience a first-hand account of the challenges facing refugees. Lack of access and information was highlighted by the confusion experienced by newly-arrived refugees. They are unaware of their rights and duties and often rely on misguided advice. Further along the process, refugee permits are not renewed due to hold ups at Home Affairs and consequently they lose their jobs or their wages are cut. Children are unable to go to local state schools without documentation, and foreigners are ostracised or discriminated against because local communities are under the misconceptions that they are here to “steal their businesses”.

Panel 3: The Future of Asylum in South Africa
The final panel built on the issues raised throughout earlier discussions. It also allowed for a wider discussion among the audience on the best steps for the civil society community to take to advocate for a brighter future for asylum-seekers and migrants in South Africa.

Roni Amit, of ACMS, spoke of the securitisation of migration. After reviewing South Africa’s progressive refugee framework and presenting the problem in realising this framework in practice, she then asked how to advocated based on this framework alone. Amit emphasised the importance of looking beyond the functional issues to the context in which asylum is embedded. She focused on how the securitisation of migration has come to frame debates on migration. The issue of economic migration and the perception that South Africa was being inundated by economic migrants has led asylum to be recast as a securitisation issue. This in turn has lead to increased border control and widespread detentions and deportations, among other restrictions on the migrant community. She urged the advocacy community to remember that these problems were broader than rights violations alone and were routed in misplaced priorities within the immigration policy. She suggested efforts should advocate for reform that addressed the need for a formal mechanism that would allow economic migrants to enter into the country legally.

Solomon Wasia Masistsa, of the Kituo cha Sheria (based in Kenya), spoke about some of the similarities between the issues of migration facing Kenya and South Africa, and the corresponding government’s responses. He stressed the need to understand the motivation behind government’s actions (such as the closing of the refugee reception offices) and spoke about framing the response appropriately. For legally-motivated action, perhaps a purely legal solution would work; for a politically-motivated action, it may be necessary to pursue a wider approach, lobbying government and stakeholders to change their attitudes. Regardless of the problem, the important message should be having an empowered refugee population instead of one dependant on camps and the government.

Mpilo Shange-Butane, of CoRMSA, wrapped up the panel discussion by reminding the audience of the importance of engaging government with open eyes. She spoke on some of the challenges of working with different stakeholders in the past but ended on an encouraging note that there is still a “bit of light at the end of the tunnel”. She stressed the need for advocates to be creative in their strategies and not to lose focus on the end goal of protecting the rights of refugees and asylum-seekers.

An interactive hour of comments and questions from the audience followed the panel discussion. Representatives from Amnesty International, UNHCR, the South Africa Human Rights Commission and others discussed current challenges and strategic ways for the wider community to work together for a better future for migrants in South Africa.