The plight of asylum seekers in SA: No documentation, no rights

20 Jun 2019

Thursday June 20 was World Refugee Day, but it brought no joy to the 190,000 asylum seekers in South Africa who have been living in limbo for up to 19 years.

People move from their home countries for many reasons; some by choice in hopes of new opportunities, others are forced to abandon their lives and loved ones because they are fleeing war and conflict or persecution simply because of who they are or what they do.

South Africa has a strong legal and human rights framework for refugees and asylum seekers’ rights. However, the failed asylum management process has been well documented over the years and shows that the implementation of existing laws and policies is starkly lacking.

For asylum seekers who have made the long journey to South Africa, fleeing persecution, war and conflict, in search of peace and stability, their arduous journey doesn’t end on arrival in the country.

Amnesty International South Africa embarked on research in 2018 to gather data on the experiences of asylum seekers attempting to exercise their rights to get and remain documented in South Africa. What we found is an asylum management system that is failing rights-holders.

The refugee status determination process should be relatively simple. According to the Refugees Act, asylum seekers are required to report at a Refugee Reception Office (RRO), within five days of their arrival in South Africa, to start the refugee status determination process. These offices are located in Musina, Pretoria, Durban and Port Elizabeth (only reopened in October 2018 following long court proceedings).

They are required to be given an asylum seeker permit which they need to renew and keep valid until their status is determined. The whole process of adjudication should take up to 180 days (6 months), but system failures have left about 190,000 asylum seekers living in limbo for up to 19 years.

The closure of three of the urban RROs, in Johannesburg, Cape Town and Port Elizabeth in 2011 and 2012, combined with poor decision-making – including mistakes of fact and lack of sound reasoning – has resulted in the huge backlog.

Institutional xenophobia and anti-migrant bias are rife, exacerbating the vulnerable position of people attempting to get refugee status.

While asylum seekers are allowed to enter the country and have the right to work, study and access basic education and health care, their reality is different. Remaining documented is tremendously expensive and time-consuming to asylum seekers who often have to travel long distances to get to their closest RRO, which may be 900km away. And once they arrive there’s no certainty they will be helped that day – sometimes they have to return three or four times.

Even if they gain access to the RRO, documentation is not a given. In some instances, they are turned away and given an appointment slip showing the date they should return. This effectively leaves asylum seekers “undocumented” and vulnerable to harassment, detention and deportation.

Amnesty found that the asylum process is not explained properly to asylum seekers when they arrive, and translation is either lacking or of poor quality. Many asylum seekers have recently fled their countries of origin and are unable to speak or understand English, which puts them at a major disadvantage in claiming refugee status without prejudice. This is compounded by the fact that most asylum seekers cannot afford to have legal representation to assist them with their claims if they are rejected.

The effects of the flawed asylum management system are multi-layered, including financial, physical and psychosocial. Some asylum seekers may have to travel very long distances regularly – every one to six months – to renew their asylum seeker permits to stay documented. This affects their ability to get decent and permanent work and makes them vulnerable to unscrupulous business-people. The inability to remain documented hinders their rights to basic education and healthcare and makes them vulnerable to harassment, arrest and detention.

In addition, asylum seekers are vulnerable to xenophobic violence. There have been many xenophobic incidents over the years; in May 2008, a series of attacks across SA left 62 people dead. Xenowatch, which monitors xenophobic violence in South Africa, reported 33 incidents between January and 25 September 2018.

Xenophobic attacks are often preceded by xenophobic utterances by political and cultural leaders. The words and actions of our leaders matter. It is time for them to stop promoting divisive political narratives and start uniting people around shared values that build a more inclusive South Africa.

The government, in particular the Department of Home Affairs, must ensure a safe, fair and efficient asylum management process and create a country that welcomes those in search of a place to call home. They should comply with the Supreme Court of Appeal order to reopen the Cape Town RRO, and effectively resource all RROs, and ensure that the refugee status determination process is administratively and procedurally just and fair.

If rights protection is not put at the centre of the asylum system it will continue to result in violations of asylum seekers’ rights, undermining the intentions of the Refugees Act as well as the Constitution, which protects the rights of every individual South Africa. DM

Susan Tolmay is the women and marginalised groups rights officer at Amnesty International South Africa. She specialises in feminism and women’s rights and has spent the last year researching the refugee and asylum management system in South Africa.

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