22 October 2010
University of Witwatersrand Forced Migration Studies Programme
The Consortium for Refugees and Migrants in South Africa
The Centre for the Study of Violence and Reconciliation
Trauma Centre for Survivors of Violence and Torture
Coordinating Body for the Refugee Community
Scalabrini Centre of Cape Town
Socio-Economic Rights Institute
Christians for Peace in Africa
Jesuit Refugee Services
Wits Law Clinic
UCT Law Clinic
The Black Sash
Lawyers for Human Rights welcomes this opportunity to make submissions to the Portfolio Committee for Home Affairs on the Refugee Amendment Bill. Lawyers for Human Rights is an independent human rights organisation founded in 1979 which uses the law as a positive instrument for change to deepen the democratisation of South African society. LHR’s Refugee and Migrant Rights Programme was established in 1996 and uses the experience and knowledge from its work in this area to inform these submissions on this Bill. We have made reference to the present Bill, the 2008 Amendments as well as the Principal Act in our submissions.
This submission has received 14 endorsements from organisations working in the asylum and migration field. These organisations are the University of Witwatersrand’s Forced Migration Studies Programme, the Consortium for Refugees and Migrants in South Africa, The Black Sash, The Centre for the Study of Violence and Reconciliation, Trauma Centre for the Survivors of Violence and Torture, Jesuit Refugee Services, Coordinating Body for the Refugee Community, Scalabrini Centre of Cape Town, Socio-Economic Rights Institute, Christians for Peace in Africa, University of Cape Town Law Clinic, Section 27 and Passop.
In our submissions we have made reference to UNHCR’s Excom Conclusions  . International protection is included as a priority theme on the agenda of each session of UNHCR’s Executive Committee. The consensus reached by the Committee in the course of its discussions is expressed inthe form of Conclusions on International Protection (ExCom Conclusions). Although not formallybinding, they are relevant to the interpretation of the international protection regime. ExCom Conclusions constitute expressions of opinion which are broadly representative of the views of the international community. The specialist knowledge of ExCom and the fact that its Conclusions are taken by consensus add further weight.
In addition we have referred to South Africa’s obligations in terms of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was ratified in 1998.
AT the outset we would like to contexualise our submission within the current migration and asylum situation. In 2009 and for the previous 2 years South Africa registered the largest number of new asylum seekers of any country in the world and these were made up primarily of Zimbabweans. LHR recognises that this Zimbabwean Regularisation Process will greatly impact on the asylum system by removing substantial numbers of Zimbabweans for whom, there was previously no other avenue for documentation. However, in order for the regularisation process to be fully and effectively implemented the deadline for the cut off date needs to be extended. This will have a direct impact on the asylum system. The Portfolio Committee needs to be aware of this intimate connection between the two processes and of the need for discussions on the extension of the deadline.
Section 1 (b) Definition of “Dependent”
We recommend that the definition of dependent be expanded to include a dependent that arrives after the principal applicant. In practise family members who arrive after the principal applicant are often requested to open separate files and this creates substantial difficulty and prejudice to the dependents in order to receive both an asylum seeker and refugee permits (after the principal applicant is successful in their asylum claim).
The definition of “dependent” should also apply to life partners and persons in customary marriages that have taken place in other countries. In practice this does not occur and unfairly discriminates on persons who have not undergone a civil marriage ceremony.
We also refer to the UNHCR Excom Conclusion No 24 (6) which states that:
“When deciding on family reunification, the absence of documentary proof of the formal validity of a marriage or of the filiation of children should not per se be considered as an impediment [to family reunification].
We recommend a rewording of the definition as follows:
“dependent” in relation to an asylum seeker or refugee means any unmarried dependent child or any destitute, aged or infirm member of the immediate family of such asylum seeker or refugee who is dependent on him or her. Dependent includes such family member who arrives after such asylum seeker or refugee.
In Section 1(e) and in other sections of the act there is reference to “Status Determination Committee” which will replace the Refugee Status Determination Officer.
There is however no mention in this Bill of how this Status Determination Committee will operate, how it will be made up or how it will make RSD decisions. This is a glaring omission and this vital information needs to be incorporated into the Bill.
In the 2008 Refugee Amendment Bill, there were proposed amendments (which to date have not come into force) which established the Refugee Appeals Authority. The difference in those amendments was that the Refugee Appeals Authority was clearly defined. The amendments detailed the composition, functions and other relevant operational and administrative information. The same level of detail needs to be incorporated with regard to the Status Determination Committee.
LHR has serious concerns about the current status determination process and the resulting poor decisions emanating out of this process. We refer the Portfolio Committee to a 2010 research report by Wits University’s Forced Migration Studies Programme, Protection and Pragmatism: Addressing Administrative Failures in South Africa’s Refugee Status Determination Decisions” which identifies serious flaws in the refugee status determination process.concerned about the poor quality of decision making in the RSD process that has been highlighted in this research report. We are not concerned about the proposed change from the RSDO to the Status Determination Committee per se but rather our concern is with the substantive and qualitative process that is involved. Regardless of whether it is an individual or a committee that has the responsibility for arriving at the final decision in an asylum seekers application the focus needs to be on the quality of the decision and not on the number of decisions which can be made in one day. Currently RSDO’s have targets of up to 10 decisions per day, which is one factor leading them to make very poor quality decisions. LHR is
While we understand the rationale for this change and the need for applications for asylum to be dealt with in an efficient, prompt and less subjective fashion it is difficult to visualise how a committee will be operate more effectively than an individual RSD officer. A committee is also likely to take a longer time to make decisions, so that there may be a potential for the RSD backlog to increase.
We recommend that the Portfolio Committee look at the recommendations in the Wits report in their consideration of how this new Status Determination Committee will operate.
No 8(e) [The Executive Committee] Recommended that procedures for the determination of refugee status should satisfy the following basic requirements:
(i) The competent official to whom the applicant addresses himself at the border or in the territory of a Contracting State, should have clear instructions for dealing with cases which might come within the purview of the relevant international instruments. He should be required to act in accordance with the principle of non-refoulement and to refer such cases to a higher authority.
(ii) The applicant should receive the necessary guidance as to the procedure to be followed.
(iii) There should be a clearly identified authority- wherever possible a single central authority- with responsibility for examining requests for refugee status and taking a decision in the first instance.
(iv) The applicant should be given the necessary facilities, including the services of a competent interpreter, for submitting his case to the authorities concerned. Applicants should also be given the opportunity, of which they should be duly informed accordingly and issued with documentation certifying his refugee status.
(v) If the applicant is not recognised, he should be given a reasonable time to appeal for a formal reconsideration of the decision, either to the same or to a different authority, whether administrative or judicial, according to the prevailing system.
(vi) The applicant should be permitted to remain in the country pending a decision on his initial request by the competent authority referred to in paragraph (iii) above, unless it has been established by that authority that his request is clearly abusive. He should also be permitted to remain in the country while an appeal to a higher administrative authority or to the courts is pending.
Re 5 of Proposed Amendments / Section 21 B of the Principal Act
This is a positive change which fails to consider the practical difficulties around this registration of births for foreign children. LHR supports the requirement for the registration of birth for foreign children however we submit that there is a need to extend the period within which a birth needs to be registered. The registration of the births of the majority of South African children occur routinely through communication between the hospitals where these children are born and home affairs.
This submission acknowledges that according to the Births and Deaths Registration Act a child’s birth needs to be registered within 30 days. However there can be some leeway with regard to advising the refugee offices of the birth of the child. Asylum seeker and refugee children are not in the same position as South Africans as their parent (usually the mother) must go in to a Home Affairs office and stand in queues to register the child’s birth. It is difficult for a mother who has recently given birth to a child to be able to do this registration within one months of this child’s birth. We would therefore recommend a change of the wording in this section of the Amendment Bill to suggest that persons need to register the birth of their child with a Refugee Reception Office “within a reasonable time”.
Re Section 30 of the Principal Act: Identity Document for refugee
LHR submits that the issue around access to and the availability of identity documents for refugees continues to remain a challenge. The identity documents are only available for a period of 2 years, after which they need to be renewed together with the section 24 refugee permits. They are however, not always issued at the same time as the section 24 permit. The most serious problem with the Refugee Identity Document is that it is not recognised by other government departments and state officials. The primary reason for this is that the document differs in colour and form to the Identity Document which is issued to South African citizens.
LHR is not proposing any changes to the Principal Act in this regard, but does wish to draw the attention of the Portfolio Committee to these challenges. We would recommend that the Refugee Identity Document resemble the South African identity document in colour and appearance. There are no reasonable grounds on which to issue a different colour Identity Document to refugees especially when this colour creates difficulty in accessing state services. Permanent Residents receive a green Identity Document which lists their immigration status, and the same kind of document may be issued to refugees.
We refer to the Executive Committee Conclusion 13 on Travel Documents for Refugees
Excom Conclusion 13 (a) [The Executive Committee] Reaffirmed the importance of the issue of travel documents to refugees for temporary travel outside their country of residence… [ and for ].
Re Section 31 of the Principal Act: Travel Documents to refugees
LHR does not propose any amendment to this section however; we wish to draw the Portfolio Committees attention to the problems around accessing a travel document. Refuge Travel documents have not been available except in emergency cases for more than one year. Previously, a United Nations Convention Travel Document was issued to refugees. However, despite a decision in 2009 to commence issuing refugees with South African passports these documents are not yet available to refugees. This has resulted in a situation where refugees who have applied for travel documents are still waiting for these documents for up to 18 – 24 months and are unable to travel outside the country.
We are reluctant to leave these changes to be dealt with in the regulations as neither civil society organisations nor the Portfolio Committee would have any influence on this issue if it was dealt with in the regulations.
Section 32 of Principal Act: Inclusion of asylum application procedure for unaccompanied children
LHR made submissions on the 2008 Amendment Bill to clarify the procedure for unaccompanied children lodging asylum applications. Section 21A and 21B have been inserted into the Principal Act. It is unclear from the wording of the section which department or officials are responsible to provide assistance to unaccompanied children. This is currently the precise problem which unaccompanied children find themselves in as they are turned away from Refugee Reception Offices and directed to officials at the Department of Social Development who are unsure of how to assist these children. The Act needs to be more specific about who is responsible to provide this assistance and how these children should be treated in the asylum system.
LHR suggests a rewording of the section as follows:
21.A (1) Any unaccompanied child who is found under circumstances that clearly indicate that he or she is an asylum seeker and a child in need of care contemplated in the Children’s Act 2005 (Act No.38 of 2005) must-
(a) be issued with an asylum seeker permit in terms of section 22 by a Home Affairs official and be assisted by a social worker from the Department of Social Development; and
(b) in the prescribed manner, be brought before the Children’s Court in the district in which he or she was found, to be dealt with in terms of the Children’s act, 2005.
Section 21B (1) A person who applies for refugee status in terms of section 21 and who would like one or more of his or her spouse and dependents to be granted refugee status must, when applying for asylum, include such spouse and dependents in the application.
This section was inserted into the 2008 Amendment Bill and we submit that it is vital for the section to remain as this is a recurring problem for spouses and dependents who should receive a section 22 or section 24 permits on their arrival.
Re Amendment of section 24B of Act 130 of 1998, as inserted by section 19 of Act 33 of 2008
Section 8 (d) The Refugee Appeals Authority must refer the matter back to the Refugee Status Determination Committee to deal with such asylum seeker in terms of this Act if new information, which is material to the application, is presented during the appeal.
LHR recognises that in an ideal situation this would be way the appeals process should operate. In the current situation, however the appeals process is the only process in the asylum system which appears to be operating reasonably well. The poor quality of decisions by the RSDOs makes it impossible for the Appeal Board to operate strictly in an appeals capacity. Instead the Appeal Board must rehear cases in their entirety. The poor decision making at the first instance is rectified in the Appeals process where an appellant is able to raise new issues and present fresh evidence. These de novo hearings are essential in the protection of asylum seekers. Referring matters back to the Status Determination Committees would increase the already growing RSD backlog. This would result in cases taking even longer to finalise. Moreover, referring matters back to the first decision maker will only be effective if the quality of decision making at this stage is improved. In the absence of these improvements, this change will be prejudicial to the asylum seeker.
We are aware that the Refugee Appeals Authority intends to hold appeal without the need for the presence of the appellant. The Deputy Minister Malusi Gigaba is quoted as saying, “The [Refugee Amendment] bill seeks to speed up the appeals process by decentralising it and removing the stipulation that applicants must be present at the appeal hearings”. These details are however not part of the Bill and we are concerned that such proceedings will be unlawful and contrary to the spirit of the Constitution as well as other legislation including the Promotion of Administrative Justice Act and the Refugee Appeal Board Rules. In addition, the poor quality of decisions at the first stage will make it virtually impossible for the Refugee Appeal Board to base their decision on the papers alone.
The Constitution guarantees that administrative action will be reasonable, lawful and procedurally fair. It also ensures the right to request reasons. Currently the poor quality decisions and reasons issued at the first instance make this approach unreasonable, procedurally unfair and potentially unlawful.
Re Section 25 of the Principal Act
There is a need to clarify the review process which is applicable once an applicant has been rejected. What has been occurring in practise is that asylum seekers receive a rejection from the RSDO and they have 30 days to lodge their intention to appeal that rejection. Their section 22 permit however is extended for a period of 3 months- which is misleading and leads asylum seekers to think that they have a period of 3 months in order to lodge a notice of intention to appeal. This leads to the appeal notices not being received by the Refugee Reception Office within the stipulated time frames and the asylum seeker is obliged to seek assistance with a condonation application for late filing of the appeal notice. Few asylum seekers are aware that they may seek condonation for late filing, and could potentially become undocumented at this stage without fully exhausting the appeal process. The effect of this change is that an asylum seeker may be deported after the first rejection before they have reached the appeal stage in the asylum system. With the current wording an asylum seeker may be dealt with in terms of the Immigration Act even during the 30 day period which is permitted for a rejected asylum seeker to lodge an appeal notice.
Re Amendment of Section 27 of Act 130 of 1998, as substituted by section 21 of Act 33 of 2008
Section 27 (c)
In consideration of the length of time which the asylum determination process takes and in view of the fact that asylum seekers almost never receive their decisions within the 180 day timeframe per the Refugees Act, we submit that this section be reworded as follows:
“permanent residence in terms of section 27 (d) of the Immigration Act after five years of continuous residence in the Republic from the date on which he or she lodged the application for asylum, if the applicant is subsequently successful in the asylum claim and is granted refugee status, if the Minister, after considering all the relevant factors and within a reasonable period of time, certifies that he or she would remain a refugee indefinitely”.
LHR recommends holding a pre-removal hearing of finally rejected asylum seekers so that persons who may be in need of protection but who fall outside the asylum system may still have their protection needs considered.
Several countries are already following this process:
In Canada there is an explicit obligation to consider the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in making asylum determinations. Even persons who fail on the elements of the refugee definition may receive protection consideration if they would face torture if returned to their country of origin.
Under Swedish law, persons who are found not to be “convention” refugees under the 1951 Refugee Convention may also qualify for asylum under a category of “persons in need of protection”. This includes those who have left their country of origin and have good reason to fear capital punishment or torture.
South Africa has ratified the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and is obliged to protect persons from being sent to countries where they may face torture, cruel, inhuman or degrading treatment.
Re section 24 (1) (b) of the Principal Act which is incorrectly referred to as section 24 (2) (b) in the Amendment Bill
South Africa is a signatory to the UN 1951 Convention and in terms of Article 5 of the Convention has agreed to cooperate with the national authorities of the United Nations.
We refer to Article VIII of the OAU Convention which recommends for members states to cooperate with the United Nations High Commissioner for Refugees.
The Amendment Bill suggests that this section is deleted without providing any reasons for this. LHR recommends that this section remains in the Bill in light of the valuable expert advice and assistance which may be available from the UNHCR.