|Admitted as an attorney in 1985 Chris Watters practices exclusively in the field of immigration law. Chris is the Vice-Chairperson of the Immigration Law Committees of the Law Society of the Northern Provinces and the Law Society of South Africa. He is a member of the SA Law Reform Commission's project team on immigration law and is a former member of the Immigration Advisory Board. He is a member of the US-based Association of Business Immigration Lawyers [www.abil.com]. Chris Watters Attorneys [email@example.com] assists in all aspects of temporary and permanent residence permit applications, immigration enforcement ‘disputes' and refugee law matters.|
What is it with so many South Africans and refugees? Why do so many have such a jaundiced view of people who are “forrin”?
In a recent High Court decision, Bhuiyan v Minister of Home Affairs, in the Eastern Cape, the Court, fuelled quite possibly and, if so, some would think legitimately by the mix of questionable merits, unfortunate founding papers and the conduct of legal representatives, said of the twelve applicants, and based further on the mix of various allegations made (or not made) on their behalf and a curious history of travel movements, “they journeyed to South Africa for no other purpose save their economic salvation. They are … economic migrants, and nothing else. Refugees or asylum seekers they certainly are not.”
Now quite aside from whether or not it was the place of the court to determine whether or not the applicants were in fact asylum seekers or refugees as opposed to officials within the Department of Home Affairs, it was common cause that nine of the twelve were from Bangladesh, two from India and one from Ethiopia and that all but the Ethiopian had been arrested outside the Port Elizabeth Refugee Reception Office.
One has to wonder why it was not pointed out to the Court that Bangladesh is not exactly renowned as a bastion of democracy, nor does Ethiopia feature in anyone’s definition of democracy and India certainly has its wobblier moments. It was pointed out in a recent Canadian Federal Court decision that even settled democracies can have their undemocratic moments resulting in people legitimately fleeing persecution.
And people, particularly illiterate people, traumatised people and people not well versed in the nuances of refugee law, can express their experience of persecution by saying that they are looking for a better life, for jobs and schooling for their children. Our own country knows too well from our all-too-recent dark history that controlling access to employment can become an important tool in the persecutor’s arsenal as is depoliticizing the harassment. In addition, we only have to look immediately north to see an example of how food aid can be withheld from otherwise apolitical people on account of the political views their persecutors perceive them to hold which would qualify a person for recognition as a refugee as contemplated in the UN Refugee Conventions.
One has to wonder too why it was not pointed out to the court that section 21(4) of the Refugees Act recognises that people fleeing persecution do not always have the luxury of phoning their travel agent, picking up their passports and tickets and flying in to OR Tambo. That section expressly provides that persons cannot be prosecuted for entering or remaining in South Africa unlawfully pending the outcome of their applications for asylum, for recognition as a “Convention refugee”.
An important corollary of this appears from the UNHCR’s own Handbook on refugee status, that when a person is found to be a refugee, as the Courts have long pointed out to Home Affairs, he or she is in fact “recognised” as having been once since they first entered South Africa. A positive decision in the asylum seeker’s favour does not amount to a “grant” of refugee status. Thus it is that asylum seekers are treated as being in effect, quasi “refugees” until such time as their application is finally considered.
Of course there is the grey area of what happens to asylum seekers between the time they enter SA and are at least granted status as an asylum seeker, once their application has been ‘registered’ with the Department.
This raises the case of the Ethiopian applicant, Mr. Ersumo. His papers detailed his entry into SA on an asylum transit permit, the theft of his belongings including his permit, efforts, in vain, to apply for asylum at the Pretoria Refugee Reception Office and at Cape Town, where he alleged he simply could not get in. And then he was arrested en route to the Port Elizabeth Office. One would have hoped that the Department did point out to the Court that it has admitted in court papers in other jurisdictions, that there are long queues at the other offices – people in Pretoria can queue literally for days to be assisted – and that there can be all manner of abuses carried out by staff seeking bribes, certainly such has also been reported by the media.
The Court in Bhuiyan dismissed the applications seeking to have their detentions set aside. But what message does this send out? That asylum seekers are easy pickings for Home Affairs’ immigration officials until such time as their applications are actually captured by the Refugee Office? If that is the case, then it will take a brave person to take his or her chances in the queues if he or she does not have a valid permit. And how more challenging is this going to become for asylum seekers under the Immigration Amendment Act when the current 14 day validity period of asylum transit permits is reduced to five days! How does this reconcile with the country’s usually strongly worded statements about recognising the rights of refugees and migrants, whether at UNHCR or ILO fora?
At a recent briefing to stakeholders by a senior department official, he stated that about 95% of refugee claims are refused thus confirming the profile of the bulk of asylum seekers as chancers, as economic migrants. But the reality is that many of those claims were made by Zimbabweans who were left with no choice but to flee here not least as a result of this country’s approach to the Zimbabwean crisis.
Moreover, those figures do not take into account how many of those decisions are eventually overturned on appeal. It has been noted in recent research, that the quality of decision making in asylum applications at first instance, is not of the best, to put it diplomatically. But ultimately, even economic refugees have rights; they are not “lepers,” the unclean, within a constitutional state. And this fact too has been made clear – and by no less an august body as the Constitutional Court. But perhaps, that too was not bought to the attention of the Court in Bhuiyan or of those Department officials who executed the arrests and detentions.
The Department of Home Affairs needs to radically clean up its act in respect of its treatment of refugees, be they economic or Convention refugees, and not just its financial affairs or the message this sends will continue to haunt us and muddy the judicial waters.