Civil society slams ‘poorly drafted’ White Paper on Citizenship, Immigration and Refugee Protection

A group of refugees and asylum seekers from Democratic Republic of Congo, Uganda, Ethiopia, Rwanda and Burundi camp outside the Commissioner for Refugees office premises on 2 June, 2022 in Pretoria, South Africa. (Photo: Gallo images / Alet Pretorius)

By Tamsin Metelerkamp

5 Dec 2023

Representatives of various civil society organisations criticised the White Paper on Citizenship, Immigration and Refugee Protection at a Lawyers for Human Rights roundtable on Monday, describing the draft policy as ‘vague’ and ‘poorly drafted’.

Civil society representatives have slammed the recently published White Paper on Citizenship, Immigration and Refugee Protection as being flawed and poorly drafted. Concerns have been raised about the draft policy’s alleged attempts to “scapegoat” the migrant community in the lead-up to South Africa’s 2024 general elections.

The Department of Home Affairs gazetted the white paper on 10 November, calling for a “complete overhaul” of the migration system in South Africa. The public has until 19 January 2024 to provide comments.

“While in the ordinary course of things, we would… have welcomed the good intention to administer a complete overhaul of frameworks relating to our immigration framework… we look at the white paper and we see it against the backdrop of the sociopolitical context… of the significant surge in deadly xenophobic attacks that have happened since 2008. We also see it in the context of the increasingly anti-migrant sentiment that is being purported by the ANC,” said Nabeelah Mia, head of Penal Reform Programme at Lawyers for Human Rights.

Read more in Daily Maverick: South Africa’s shameful xenophobic decade

“The white paper itself is an attempt to scapegoat a community who unfortunately do not have the voting power in a bid to win votes, rather than the governing party taking responsibility for its failing governance over the past 28 years, leading to higher rates of inequality and unemployment.”

White Paper on Citizenship, Immigration and Refugee Protection, anti-xenophobia protest People take to the streets during a rally organised by the Kopanang Africa against Xenophobia organisation, calling for an end to 'xenophobic sentiments and groups' in Johannesburg, South Africa, on 26 March 2022. (Photo: EPA-EFE / Kim Ludbrook)

Mia was speaking at a Lawyers for Human Rights roundtable on Monday. The event provided a platform for civil society stakeholders to discuss the contents of the white paper and its implications for the rights of refugees, citizens and migrants in South Africa.

“The white paper itself, as a policy document, has significant flaws. It was quite vague and shocking in its failure to provide an empirical foundation for its proposed policy reform,” said Mia.

This sentiment was echoed by James Chapman, head of advocacy at the Scalabrini Centre, who described the document as “poorly drafted”, with “sweeping statements” that were not backed by evidence.

“Rather than bringing itself into line with our constitutional jurisprudence that has been built up over the years as it relates to the rights of migrants — specifically asylum seekers and refugees — it is proposing to alter the law to prevent court challenges and... that doesn't match up,” continued Mia.

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A long process

The policy framework proposed in the White Paper on Citizenship, Immigration and Refugee Protection is intended to replace three existing national policies:

The Citizenship Act 88 of 1995;

The Immigration Act, which is act number 13 of 2002; and

The Refugees Act 130 of 1998.

“This is not a new situation. Home Affairs has made various attempts to overhaul and harmonise these same pieces of legislation. The difference in this particular situation is that they’ve never tried to introduce one piece of legislation dealing with all of these issues,” said Kaajal Ramjathan-Keogh, Africa director of programmes for the International Commission of Jurists.

Ramjathan-Keogh said there would likely be a long consultation process before the finalisation of the proposed policy, possibly spanning years.

“This white paper has been four years in the making, so we can expect the consultation process to extend for a further period. We can see that Home Affairs would like it to be a very short consultation process based on the very short period of time they’ve given us to make submissions but we anticipate that the final bill will be many years away and potentially will look very different to the current proposals,” she said.

With regard to refugee protection measures, the white paper proposes that South Africa review and withdraw from the 1951 United Nations (UN) Convention Relating to the Status of Refugees and the 1967 UN Protocol relating to the Status of Refugees, with the aim of rejoining these with reservations allowing for the limitation of refugees’ socioeconomic rights.

UNHCR A group of refugees and asylum seekers from Democratic Republic of Congo, Uganda, Ethiopia, Rwanda and Burundi camp outside the Commissioner for Refugees office premises on 2 June, 2022 in Pretoria, South Africa. (Photo: Gallo images / Alet Pretorius)

It further proposes that sections of the Citizenship Act should be reviewed, including those relating to citizenship by naturalisation, and that the Births and Deaths Registration Act be repealed in its entirety. The draft policy suggests that a register of all people granted citizenship by naturalisation should be kept by the Minister of Home Affairs.

Some recommended changes in terms of the immigration framework are that the Border Management Authority Act should be reviewed to align it with the new immigration and citizenship policy framework; and that the powers of immigration officers and the Inspectorate for Immigration Services should be strengthened.

False claims around citizenship issues

In order to become a South African citizen, the current legislation requires that a person must have a South African parent, according to Thandeka Chauke, head of the Statelessness Project at Lawyers for Human Rights.

There are exceptions to this, with processes that allow people to pursue citizenship if they would otherwise be stateless or when they are a child born to permanent residents in the country. There is also a pathway to citizenship by naturalisation for children who are born to non-South Africans, according to Chauke.

“The one thing [the white paper] has said is a claim that the current citizenship law is creating an easy pathway to South African citizenship for refugees and migrants, and therefore [it] is proposing a more cautious approach to citizenship… It says in the white paper that the requirements for citizenship by naturalisation... must be more stringent,” said Chauke, adding that the rationale behind this proposal was that the government needed to be protected from financial strain on its limited resources.

However, the claim that the pathway to citizenship by naturalisation was too easy was “simply false”, she continued.

Chauke referenced a recent article co-written by Loren Landau, co-director of the Wits-Oxford Mobility Governance Lab at the University of the Witwatersrand. The article stated that based on the information in the white paper, 150,997 people in South Africa have been granted citizenship by naturalisation since the 2002 Immigration Act.

“That figure only represents 0.2% of the population. So, the white paper does paint a false picture… that there’s so many non-South Africans that are accessing citizenship through naturalisation,” said Chauke.

She argued that safeguards already existed to prevent the abuse of processes for gaining citizenship, but that these were not laid out in the white paper.

“What we’ve now seen since 1995 is a slow and steady move to restrict access to that citizenship. While the white paper itself doesn’t... come right out and say what it intends to do, I think when we track that and look at the patterns of Home Affairs’ approach to interpretation of the citizenship law and its failure to effectively implement the laws, we can preempt what is going to come in the bill,” she said. DM

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A long process

False claims around citizenship issues