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Polity
Article by: Tracy Hancock
Published: 06 Aug 2010
Failing processes erode SA’s refugee system
The University of Cape Town’s (UCT’s) Law Clinic Refugee Rights Project director Fatima Khan tells Polity that South Africa’s failure to properly process economic migrants has eroded the country’s refugee system, as they are being documented as asylum seekers and this is doing genuine refugees a great injustice.

As a result, the South African refugee reception offices cannot function properly, as they cannot deal with the capacity demands being placed on them.

“Because of the large number of people inundating the refugee reception offices across the country, the Department of Home Affairs (DHA) is unable to process refugees in the allotted time of 180 days, specified by regulations under the Refugees Act, No 130 of 1998, to determine a refugee’s status,” Khan concludes.

UCT is involved in advocacy and training, which comprises working in communities to educate refugees on their rights, and South Africans on the rights of refugees, as well as the training of government departments, such as the DHA and the Department of Social Services.

“Status determination officers need to be properly trained as the determination of a refugee is a complex, formal legal procedure. There are many different groups of migrants present in South Africa, of which not all are refugees. Further, not all migrants are covered by our existing legislation, be it the Refugees Act or the Immigration Act, No 13 of 2002. In particular, a large number of Zimbabweans are in South Africa because of Zimbabwe’s failed economy, and may be termed economic migrants, a category that is not covered by our existing legislation.

“These are clearly a class of people who require human-itarian assistance. They do not qualify for refugee status or fit the description of any other migrant in the Immigration Act. These are a class of people completely omitted from the Act,” says Khan.

She explains that, in most countries, economic migrants would be covered under people requiring humanitarian assistance.

Commenting on the increase in reports of crime against foreigners, Khan says that it is not certain that all reports can be linked to xenophobia.

“In several cases, refugees and asylum seekers have been attacked, robbed or had their businesses looted. Some incidents were certainly xenophobic, as our clients had directly been told that they were not welcome in South Africa and were being attacked because they are foreigners.”

However, other attacks were the result of foreigners being easy targets, as the criminals might have the perception that they will not be punished for a crime committed against a foreigner. But it has become clear that the police are arresting those responsible for the crimes against foreigners,” explains Khan.

She says that, during the 2010 FIFA World Cup, several clients indicated that, when using buses, trains or taxis, foreigners had been told to leave the country after the event or face expulsion. However, only two other cases were reported to the law clinic by late july.

Over the past two years, the UCT Law Clinic has found that the largest number of xenophobia victims represented by the clinic are from Zimbabwe, Somalia and the Democratic Republic of Congo.
The UCT Law Clinic has been in operation for over 35 years. In 1998, the clinic decided to extend its legal services to refugees and asylum seekers, and partnered with the United Nations High Commissioner for Refugees (UNHCR), which has since been funding the Refugee Rights Project. This enables the law clinic to provide free legal services to refugees and asylum seekers.

“The project was started with one candidate attorney. Today, there are eight full-time members of staff, which include four attorneys, three candidate attorneys and one legal assistant, while a number of law students volunteer regularly at the clinic,” says Khan.

The university also has an exchange programme with Michigan State University, the Stanford Law School and the City University of New York, in the US, whereby students attend UCT and work in the law clinic for three or four months.

Khan also teaches a semester-long refugee and immigration law course at an undergraduate level as an elective for final-year students, as well as a semester-long refugee law course for Master of Law students and Master of Philosophy students.

“There is a need for these courses because there are a large number of refugees in South Africa whose presence in the country requires understanding. There is also a growing number of refugees that require legal assistance,” says Khan.

“There is definitely an increase in interest in this area of law. There are a number of students who volunteer in the clinic, who have never taken the refugee course for various reasons, as there is generally a greater interest to help such a vulnerable class of people,” explains Khan.

She says that refugee law is not a moneymaking field. The lawyers who work in this field are funded by organisations, such as the UNHCR, as refugees are not a class of people who can afford to pay high legal fees. This factor dictates the willingness of students to enter this field.

“Refugee law is part of the human rights cluster of subjects. In some years, there are students that are more human rights orientated and, in other years, there are students that are keen on commercial law,” adds Khan.