Joint Submission to the European Union on the occasion of the South African Human Rights Dialogue
Publication date:
07/09/2010
Policy/Legislation number:
Asylum and Immigration Policy Full Text:
1. Introduction and Background to the Situation of Asylum seekers, refugees and migrants in South Africa
Since 1994 South Africa has been receiving increasing numbers of foreign migrants, the majority from the SADC[1] countries, in particular Mozambique, Lesotho and Zimbabwe. However South Africa has not adequately developed its migration policy to deal with this level of immigration and to ensure the protection of migrants' human rights.
In May 2008, the scale and nature of the xenophobic attacks which erupted in South Africa flagrantly highlighted the worrying human rights situation of migrants in the country. The violence, which targeted foreigners from neighbouring countries – mostly from Zimbabwe and Mozambique – left more than 60 people dead and tens of thousands displaced. National and international NGOs, among which the International Federation for Human Rights (FIDH) and Lawyers for Human Rights - South Africa (LHR), unanimously condemned this wave of violence and called on the South African government to investigate and prosecute those responsible and to institute further measures to guarantee the protection of migrants' rights. Yet, over two years later investigations and prosecutions concerning the May 2008 attacks have been inadequate and migrants continue to face violations of their rights. The State’s unwillingness or inability to address the impunity of those perpetrating violence against migrants is likely to contribute to strengthening the problem.
The attacks were considered by many to be the result of the government’s failure to address xenophobia which is an ongoing feature in South African society and institutions.
Indeed such xenophobic threats and sporadic attacks on foreign migrants have increased sinced 2007 across the country and they continued in 2010. . These threats of violence and attacks have caused distress and concern to refugees, asylum seekers and other foreign migrants. The post World Cup period has seen threats of violence against foreign nationals that the government appeared unwilling to acknowledge. Instead the current administration sought to deny others the possibility of raising the warning flag to such threats by labeling such people and organisations as unpatriotic. Whilst, in a positive move, the State reactivated the Inter-Ministerial Committee on Xenophobia, the authorities have persisted in their denial that xenophobia was a motivation for the threats, and thus the Committee did not acknowledge, and could not explain why specific groups were being targeted.
In March 2010 the South African Human Rights Commission (SAHRC) released a report into the Issues of Rule of Law, Justice and Impunity arising out of the 2008 Public Violence against Non-nationals. The report was critical of the state’s response during and in the aftermath of the outbreak of violence. The SAHRC made a series of recommendations to relevant government departments as a result of the research study. While there are some government departments which have taken the recommendations seriously and have also started implementing them, there are also government departments who have sought to ignore these recommendations. Positive developments can be seen with the South African Police Services’ development of an early warning system which has been assisting them to detect and respond to outbreaks of xenophobic violence. We have also seen some commitments by the National Prosecuting Authority who were prepared to open special courts in the event of an outbreak of post World Cup xenophobia. The police were proactive in mitigating the effects of violence which had already commenced and were ready to deal with situations which arose. However, there is much work which needs to be carried out by the state in order to live up to the recommendations in the SAHRC report as well as to South Africa’s international obligations to migrants.
Apart from xenophobia, undocumented and other vulnerable migrants living in South Africa are subjected to arbitrary or illegal arrest, detention and deportation, abuses in the asylum application process, exploitation at work, restricted access to health services and facilities, precarious living conditions and limited access to education.
FIDH and LHR have repeatedly raised those concerns at the national, regional and international levels. Our organisations seize the occasion of the European Union – South Africa Human Rights Dialogue, to be held in September 2010, to raise once again their concerns on the situation of migrants and to submit their recommendations to address the violations of their rights.
2. Persisting Human Rights Violations against Migrants
2.1 Concerns around the asylum process
i. Abuses in the asylum application process
Asylum seekers and refugees face widespread abuses throughout the asylum application process. Problems include lengthy and inadequate processing of asylum applications, widespread corruption and verbal and physical abuse by immigration officers, police officers and private security guards. On entry in South Africa, would-be asylum-seekers can inform immigration officers of their intention of applying for asylum. They should then be granted a temporary permit, under which they have to report within two weeks to a refugee reception office in order to make their application. However, many would-be asylum-seekers are not aware of this measure, are afraid that immigration or police officers at the border may harass them, deport them, illegally detain them or extort money from them. This results in many of them entering South Africa through irregular means which exposes them to many abuses.
ii.Integrity of the asylum process
Despite pressure from civil society groups the South African government has not responded to questions about the granting of status to Rwandan General Faustin Nyamwasa who despite his involvement in war crimes and crimes against peace has been granted asylum by Home Affairs. A legal brief has been submitted to Cabinet on the legal obligations on the South African government in respect of extradition and domestic prosecution on indictments issued against him by France and Spain. The brief also warned against any possible refoulement to Rwanda. The granting of asylum to this individual has brought the integrity of the asylum system into question, and it is on this basis that we raise this concern.
iii. Poor Quality of asylum decisions in the Refugee Status Determination Process
LHR together with Wits Forced Migration Studies Programme published a research report during the first half of 2010, called “Protection and Pragmatism: Addressing Administrative Failures in South Africa’s Refugee Status Determination Decisions”[2]. The report identifies serious flaws in South Africa’s refugee status determination process. The report reviewed 324 negative status determination decisions from all of the country’s permanent Refugee Reception Offices and shows that these offices are unable to perform their primary function—investigating the validity of asylum claims and separating those individuals who need protection as refugees from those who do not. The quality of status determination decisions has been severely affected by efforts to process hundreds of asylum applications daily. As a result, individuals with valid asylum claims are being returned to life threatening situations, in violation of South African and international law. In one instance, a woman who fled civil war in the DRC after being kidnapped and brutally raped by rebel forces was told that she suffered no harm.
2.2 The System of Arrest, Detention and Deportation
Migrants, even those with regular status, live in a state of permanent insecurity. Police control and harassment is a common experience among foreign migrants. Interviews and reports indicate that identity controls by police officers are often accompanied by requests for bribes or sexual favours, extortion of money or goods, verbal or physical abuse. Migrants also run the risk of being arrested, including illegally, and detained, including for longer periods than authorised by law. Many migrants arrested for lack of valid documents are deported to the Lindela Detention Centre, where about 50 000 non-nationals are detained every year and where widespread human rights violations have been reported and denounced by several NGOs.
In its 2009 report, the Consortium for Refugees and Migrants in South Africa (CORMSA) pointed out the main abuses perpetrated in the Lindela Centre which include, “routine violence, disciplining with tear gas, corruption and bribery, insufficient food, lack of reading and writing materials, lack of access to telephones, denial of medical care, indefinite detentions without judicial review, […] detention of asylum seekers […] and complete lack of legal protection”[3]. Concerned about allegations of ill-treatment, harassment and extortion, in its 2006 concluding observations, the United Nations Committee Against Torture urged the South African authorities to take all necessary measures to prevent and combat ill-treatment of non-citizens detained in repatriation centres, especially in Lindela Repatriation Centre.
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Lawyers for Human Rights (LHR) provides legal advocacy and representation to vulnerable and marginalised communities, including migrants. In 2009, LHR published a casebook gathering together legal cases brought by the organisation on behalf of migrants.
Lawyers for Human Rights v Minister of Home Affairs and Others, Case no 41276/09 (TPD – main application) and 42685/09 (TPD – urgent interim application) A group of foreign nationals had been given shelter in camps during and after the xenophobic violence in May 2008. When some of the group refused to sign registration documents that had not properly been explained to them, they were arrested and threatened with deportation. The group of approximately 750 men, women and children were taken to Lindela. Following intervention from other organisations they were released and forced to camp on the side of the highway outside the detention centre. The men were arrested for apparently obstructing traffic while the women and children were taken to a nearby shelter. After a week in detention, the charges were dropped against them and the men were again transported back to Lindela for an expedited refugee-status determination procedure and deportation. LHR intervened on behalf of the group and sought an order for their release and a finding that the expedited refugee-statusdetermination procedure was unlawful. While this matter was pending, LHR received word that deportations were continuing. An interim urgent application was launched to halt all deportations of the applicants. The state eventually agreed to a settlement that would see their release and the normal processing of their asylum applications. By that time, however, hundreds had been displaced, detained and/or deported.
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2.3 Exploitation in the work place
Many foreign migrants working in South Africa experience abuses and human rights violations in the workplace. Even though poor labour conditions are not specific to foreign migrant workers (many South African workers experience low wages, long hours, strenuous work, and undignified conditions at the workplace) they tend to be more exposed to such violations since they are often employed in low-skilled positions, in dirty, dangerous and difficult jobs in agriculture, mining, construction, private security, etc. The most vulnerable foreign workers often work for long hours, sometimes 7 days a week. They are often paid little and less than the minimum wage. Above all, migrant workers, particularly undocumented ones, are more vulnerable to abuses at work because of their precarious legal situation. In the majority of cases they do not claim their rights nor seek redress as this would expose them to the risk of being arrested and deported. Some employers deliberately seek undocumented migrants, who are considered to be more “docile” and “hard-working”. In some instances, employers threaten to report them to the police if they do not “behave” or if they seek redress for abuse. The labour laws in respect of protection for migrants who are in an irregular situation changed following a 2006 Labour court decision which found that such persons must be protected by the labour laws[4]. Despite these changes foreign migrants are afraid of enforcing these rights for fear of reprisals from employers.
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In 2008, FIDH published a report following a fact-finding mission conducted in South Africa on the situation of undocumented and other vulnerable migrants. The report, entitled “Surplus People? Undocumented and other Vulnerable Migrants in South Africa”, was illustrated with testimonies from migrants.
Testimony of an undocumented migrant worker, female, 39 years , from Zimbabwe
I worked for 18 years as a teacher. The pay was very little – I couldn’t manage to send my children to school. […] The inflation was so high. I came here because every time I got the pay, I was unable to buy a cake, just an ice cream for my children. I found a job in a factory. I worked there for a week packaging whisky and I was never paid. The owner of the factory, a woman, she said that the people to whom she was selling the goods hadn’t paid her and that when they pay her she’ll pay us. She said she would pay 75 Rands per day as a wage. We were working from 8am to 6pm and then again from 7pm to 10pm. I worked also on Saturday and Sunday. I worked everyday that week up to 10 pm. We were never paid. The majority of the people were foreigners from different countries. There was no break. When she was going for lunch break, she would lock the whole factory, she was locking us all inside for an hour, two hours. The factory was closed the whole day, it was so hot, we were sweating inside. […] We didn’t trust her when she said she would call to pay us. And we understand that the factory is closed now. She took all the goods at night and closed the factory.
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2.4 Obstacles to access other economic and social rights: health, education and housing
Migrants working in South Africa have little or no access to their economic and social rights. The South African Constitution provides for migrants’ rights to medical treatment. However, in practice many migrants experience difficulties in accessing health services and facilities even in emergency cases. Access to education is similarly very limited. While the Constitution guarantees primary education for all children, migrant children’s access is plagued by administrative and practical hurdles. Even documented migrant workers, refugees and asylum-seekers experience difficulties to enrol their children in public schools on the basis that they do not have adequate documentation. If enrolment and school admission are secured these children often face added difficulties of being refused school fee exemptions in public schools. Of particular concern is the refusal of schools to admit children without documentation and in certain cases schools starting to exclude learners on the basis that they either have no documents or do not possess the appropriate documents. These actions are contrary to the provisions of the Section 29 of the South African Constitution which states: “(1) Everyone has the right to a basic education, including adult basic education”. “Everyone” has been explicitly interpreted to include non-citizens. Furthermore the education system is regulated by the South African Schools Act No 84 of 1996 and related regulations. These Acts make access to schooling a basic right and prohibit any kind of discrimination or exclusion, whether on the basis of nationality, documentation status or ability to pay. This means that the South African government is obliged to provide adequate primary schooling for all children.
Many migrants do not have access to adequate accommodation and live in precarious conditions, with little space, little or no comfort and privacy, sometimes no or little access to water, electricity and other facilities. They often pay high rents which consume a significant part of their income. Access to key social and economic rights for migrants depends on government policies and practices. Many migrants seem reluctant to seek services from public institutions. One reason for this is the provision of the Immigration Act asking state organs to report undocumented migrants to home affairs officials, as well as the general feeling that public institutions are part of the official system of migration control.
2.5 The particular situation of migrant women and children
There are growing numbers of women and children amongst undocumented migrants. While acts of violence against all women are generally widespread in the country, migrant women are even more vulnerable to sexual violence, including rape, domestic violence, exploitation at work, health risks, etc. in the absence of an effective state policy to prevent and combat such violence. According to CORMSA’s 2009 report, during the 2008 attacks, sexual violence was used as a weapon to displace migrant women and girls from their home. The report also points out that “migrant women seeking assistance with cases of domestic or gender-based violence face the double obstacle of a society that is xenophobic and patriarchal”. According to recent studies, there is also a growing number of children entering South Africa through the Zimbabwean and Mozambican border posts, both accompanied and unaccompanied. They seem to be staying in Gauteng and border areas, working on farms, in informal trade, etc. Although the authorities have developed policies and programmes to guarantee adequate access to social services for refugee and asylum-seeking children, these measures are not well implemented. Migrant children continue to be exposed to exploitation, psychological and physical violence or to illegal deportation.
Unaccompanied, orphaned and abandoned foreign children are not protected in the same way as South African children. The state does not make provisions to document these children and regularize their immigration status so that when they reach adulthood, many them find themselves illegally in the country and vulnerable to arrest and deportation and without any means to be able to remain legally in the country. This is also true for children who may be found to be stateless, as there are no mechanisms which are set out for stateless children to be assisted with naturalization.
We are concerned about the situation of unaccompanied children especially those children in border areas like Musina (closest South African border town to Zimbabwe). One serious problem which we are observing in Musina is the refusal of the Musina Refugee Reception Office to process asylum applications from unaccompanied children. They are not referring cases of asylum seeking unaccompanied children for assistance to the Department of Social Development and no state department appears to want to accept responsibility for these foreign children.
2.6 The particular situation of migrants from Zimbabwe
The economic, political and humanitarian situation in Zimbabwe has led to increasing numbers of Zimbabweans migrating to South Africa. They represent by far the largest number of migrants, refugees and asylum-seekers. To address the humanitarian situation of Zimbabwean migrants, in April 2009, the South African authorities announced the implementation of 3 major measures: a 90-day free visa, a moratorium on deportations and a 12-month dispensation permit for undocumented Zimbabwean migrants who were already in the country, which would allow them to remain in the country for such period. More than one year after the announcement of these measures, which were welcomed by several NGOs, the dispensation permit is still to be implemented and Zimbabwean migrants, even those with documentation, continue to be subjected to identity controls, arbitrary arrests and detention. While the free visa and the moratorium on deportations were rapidly implemented, there are remaining obstacles to their effectiveness.
i. Requirement of further possibilities for Zimbabweans to gain regular immigration status
The absence of an alternative system to regularise Zimbabweans has led to these nationals turning to the the asylum system. The asylum system has been equipped to deal with processing large volumes of Zimbabwean asylum seekers but only up to the point of the first interview and decision. At this point most Zimbabweans find their asylum applications rejected and they remain in a situation of limbo. Those who choose to proceed with appeal applications are not receiving dates for these appeal hearings and continue to live in a situation where they do not have any certainty about the granting of asylum. The asylum system is inappropriate to the protection needs of the majority of Zimbabwean migrants in South Africa.Their irregular status increases their vulnerability to harassment and exploitation. There is an urgent need for an alternative form of immigration status for this group of persons, yet the government appears to be taking a long time to arrive at a decision on how to provide protection for them. Despite civil society organisations calling for a special status for Zimbabweans, the government has not taken any steps towards implementation of this status.
ii. Concerns on the lifting of moratorium on deportations to Zimbabwe
There have also been reports that the Department of Home Affairs is considering lifting the moratorium on deportations to Zimbabwe. This is of particular concern, as it would mean that Zimbabweans would once again start to be deported in great numbers and would place many Zimbabweans in a vulnerable situation.
II – The Need to Reinforce the Human-Rights based Legal Framework and to Fight Against Impunity
South African laws[5], as well as the regional[6] and international[7] instruments ratified by South Africa, provide for a wide range of basic rights which should be applied to migrants, including undocumented migrants, refugees and asylum-seekers and which include: equality before law and non-discrimination, the right to human dignity, the right to be exempt from slavery, servitude and forced labour and the right to emergency medical treatment.
Yet, despite domestic and international commitments to promote and protect migrants’ rights, South African migration policy remains geared towards security concerns and population control. Such policies tend to contribute to the perpetration of human rights abuses against migrants, including by law enforcement officials. The focus on security issues is reflected in particular in some provisions of the South African 2002 Immigration Act including its Section 2 which specifies that one of the objectives of immigration control is “detecting and deporting illegal foreigners”. Although the 2002 Immigration Act contains several more rights-based provisions (eg. the need to fight against xenophobia or the need to promote a human-rights based culture in the context immigration control), there are generally problems with their implementation. The Immigration Act as well as the 1998 Refugee Act are pending review but no clear indication has been given of the timing.
At the international and regional levels, South Africa has not yet ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families of 1990, nor the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa of 2009 (Kampala Convention) or the UN Convention on the Protection of All Persons and their families from Enforced Disappearances of 2006.
Besides the need to reinforce the human-rights based legal framework, there is also a need for the South African authorities to fight against the impunity of those perpetrating human rights violations against migrants. As mentioned above, insufficient investigations and prosecutions have been conducted concerning the May 2008 attacks[8]. This climate of impunity may have contributed to the perpetration of other xenophobic attacks in 2009 and 2010. According to CORMSA’s 2009 report 1,627 people were arrested in relation to the violence and of 469 cases, just 105 have been finalised with only 70 guilty verdicts. The report also indicates that “there have been no reported convictions for rape or murder despite the frequency of these violations during these attacks”.
The frequent lack of compliance with orders of the courts concerning migrants also contributes to perpetuating the violation of their rights. On 15 May 2009 the North Gauteng High Court issued a ruling ordering the immediate closure of the Soutpansberg Military Grounds (SMG) detention centre, located in the town of Musina (on the South-Africa-Zimbabwe border). Yet, over one year after, undocumented migrants, in particular Zimbabweans are still being detained there. The detention conditions of this facility, which is being managed unlawfully by the South African Police Service (SAPS) were considered by the judges to be in breach of the Constitution[9].
Recommendations
In order to prevent and redress current and future human rights violations against migrants, FIDH and LHR urge the South African authorities to:
- Review existing immigration laws, including the Immigration and Refugee Acts, so as to facilitate entry, temporary stay as well as access to permanent residency or naturalisation for foreign migrants and in particular for undocumented SADC migrants. Abolish the provision requiring organs of the state to report undocumented migrants to whom they provide services;
- To implement the recommendations made in the SAHRC Report into the Issues of Rule of Law, Justice and Impunity arising out of the 2008 Public Violence against Non-nationals. Ensure that reporting by state departments on these recommendations in thorough, transparent and independent.
- Ensure the application of rulings of the courts on migration, including relating to the closure of the SMG detention centre in Musina;
- Implement, as announced in April 2009, the special dispensation permit for undocumented Zimbabweans already in the country and take measures to facilitate their stay, including access to work; take all necessary measures to guarantee the effective implementation of the free-visa regime and the moratorium on deportations for Zimbabwean migrants ;
- Ensure respect for due process and migrants' rights and dignity throughout arrest, detention and deportation. In particular, the government should put an end to hasty deportations at the borders or within the country without adequate verification of the legal status, or nationality, of those arrested and which may contravene South Africa's obligation of "non-refoulement" ;
- Maintain constant dialogue with neighbouring countries, in accordance with the dispositions of the SADC Protocol on the Facilitation of Movement of Persons, ratified by South Africa in February 2008, with a view to establishing human-rights based migration policies in the region ;
- Improve conditions of detention in detention facilities in particular by taking measures to prevent ill-treatment, and ensuring access to information and legal aid and access to food and healthcare; conduct prompt and independent investigations into all allegations of ill-treatments of non-citizens;
- Develop information materials and set up information desks for migrants to inform them of their rights and the available remedies;
-Ensure access to state services for migrants, asylum seekers and refugees and in particular to education and health;
- Provide specific services to migrant women victims of gender-based violence and ensure the investigation and prosecution of crimes of gender-based and sexual violence;
- Provide widespread training on migrants' rights and against xenophobia to police services, immigration services, public health and education services and local administrations, in order to address xenophobia and discrimination within institutions in the country;
- Publicly and explicitly condemn and sanction xenophobic behaviour and incidents committed both by public servants and communities, in order to put an end to the culture of impunity surrounding the perpetration of xenophobic acts;
- Ratify the International Covenant on Economic, Social and Cultural Rights of 1966 and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families of 1990;
- Ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading treatment or Punishment, which calls for a system of independent visits by national and international bodies to places of detention;
- Make the declaration under article 34.6 of the Protocol to the African Charter on Human and Peoples' Rights on the establishment of an African Court on Human and Peoples' Rights giving direct access to the Court to individuals and NGOs when domestic remedies are exhausted.
[3] Protecting Refugees, Asylum Seekers and Immigrants in South Africa, CORMSA, June 2009, http://www.cormsa.org.za/research/cormsa-reports/
[4] Discovery Health v CCMA, Commissioner Myhill and Lanzetta, Labour Court, case no JR2877/06
[5] In particular the 1996 Constitution, the 1998 Refugees Act or the 2002 Immigration Act.
[6] South Africa has adhered to the major regional human rights instruments which can guarantee the rights of migrants: the African Union Convention Governing the Specific Aspects of Refugee Problems in Africa, the African Charter on the Rights and Welfare of the Child, the African Charter on Human and Peoples’ Rights and its Protocol on the Rights of Women in Africa.
[7] South Africa is party to the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the Convention on the Elimination of all forms of Racial Discrimination, the Convention Against Torture, the Convention on the Elimination of all forms of Discrimination Against Women. South Africa has also recently adhered to the 2005 SADC Protocol on the Facilitation of Movement of Persons, althtough this instrument has not yet entered into force in the absence of the required number of signatures.
[8] A resolution on the situation of migrants in South Africa was adopted in May 2008 by the African Commission on Human and Peoples’ Rights (ACHPR), calling for a thorough, transparent and independent inquiry into the May 2008 attacks, and the prosecution of those responsible.
[9] See Lawyers for Human Rights v Minister of Safety and Security and Others, Case no 5824/09 (North Gauteng High Court)