Their constructive contribution as well as their rime and energy is commendable.

The Draft White Paper for Refugee Affairs

The refugee policy of the Government of South Africa is premised upon two sets of inter-related threshold considerations. On the one hand the policy is constructed so as to reflect but also to enable the fulfilment of the international and constitutional obligations and on the other it touches on a number of other directly and indirectly related state and national interests and priorities. The most important of these priorities concern the migration control objectives, law and order, concerns over gun-running, drug trafficking and racketeering, money laundering and international crime syndicates, and cartels, various other aspects of national and state security, social and economic interests, as well as bilateral, regional and international relations. All these enable us to shape the policy in a carefully and properly balanced manner towards the protection of the refugee imperatives.

The main policy positions of the government are to effect in legal and practical terms the following distinctions:

• The granting of asylum to refugees and their protection in South African territory is a matter fundamentally of securing human rights protection. The Government will provide asylum and refugee protection to those persons who have lost this in their countries of origin, and have fled into, or are forced to remain in South Africa for reasons or circumstances which are recognised in international refugee and human rights law as giving rise to the need for international protection.
• The government does not consider the refugee protection regime to be an alternative way to obtain permanent immigration into South Africa. It does not consider refugee protection to be the door for those who wish to enter South Africa by the expectation for opportunities for a better life or a brighter future. It does not agree that it is appropriate to consider as refugees, persons fleeing their countries of origin solely for reasons of poverty or other social, economic or environmental hardships.

The basic but fundamental philosophy in the government's approach to refugee policy is unambiguous. As far as refugees are concerned, the government recognises that its responsibilities and obligations, and the quality and quantity of the measures which it is called upon to deliver pursuant to these obligations are set out in an essentially mandatory manner in international legal and human rights standards. The government has assumed these obligations both through its accession to the relevant international refugee and human rights instruments and by incorporating a number of basic principles and standards in the Constitution of the country.

The government is entitled to treat and decide upon other aspirations to migrate into, remain or reside in South Africa, on the basis of legal, political or other criteria, which it may establish domestically with wide room for discretion. Given these conceptual and categorical differences, the government's protection regime will be established on the basis that while a close and effective relationship will be maintained between the two, refugee matters on the one hand, and migration matters on the other hand will be governed by different legal and decision making principles and criteria, and under different legislative and institutional arrangements.

2.1 South Africa has ratified the 1951 UN Convention Relating to the Status of Refugees, the 1967 Protocol and the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa.

2.2 The UN definition should be understood to include any person genuinely at risk of serious human rights violations in his or her country of origin, who both needs and deserves protection. There must be a heightened risk to human rights on account of race, religion, nationality, political opinion, or membership of a particular social group. The latter residual category of civil or political status is interpreted in relation to prevailing norms of non-discrimination, including for example, persons at risk on account of gender, sexual orientation, disability, class or caste. It must moreover be determined that the government in the country of origin either cannot or will not effectively counter the risk to fundamental human rights, in consequence of which there is a need for surrogate protection in South Africa.

2.3 The OAU definition of refugee status also includes those compelled to leave their country for reasons of external aggression, occupation, foreign domination or events seriously disturbing public order either in part or the whole of the country of origin. This should be interpreted to include those who have come to South Africa because their lives, safety or freedom are threatened by external aggression, occupation, foreign domination, generalised violence, internal conflict, massive violation of human rights, or other circumstances which have seriously disturbed public order either in part or the whole of their country of origin.

2.4 Paragraph 2.2 refers to persons who both need and deserve protection. A refugee not deserving of refugee status is someone of whom there are serious reasons for considering that he or she 'has committed a crime against peace, a war crime or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes' or someone who 'has committed a serious non political crime outside the country of refuge prior to his [or her] admission into that country as a refugee'. However, considering that the primary principle of refugee protection is that no one should be returned to a country Pliers he or she would face serious harm these exclusion clauses should be applied restrictively. With regard to crimes committed within South Africa, refugees are subject to the laws of South Africa. A refugee who commits a crime will be prosecuted, and if convicted, sentenced.

2.5 Asylum and protection are guaranteed for refugees as long as the need for protection continues. The need for international protection may cease when a refugee voluntarily decides to return home (voluntary repatriation), or when the circumstances in connection with which refugee status was granted have fundamentally and durable changed, and national protection can safely be resumed. In such circumstances, the UNHCR invokes application of the cessation clause in relation to refugees of a particular nationality, following consultation with the host governments. The task team recommends that in cases where refugee status has ceased under these principles, any final settlement be concluded in an essentially humanitarian way. In particular, where certain refugees have developed strong family, social and economic links with South Africa to the point of regarding it as their new home country, the government shall give favourable consideration to any application for naturalization which may be submitted by such refugees.

2.6 It has been argued that South African refugee policy should enable victims of poverty and other social and environmental disasters to be considered as refugees and to be treated accordingly. However, while the task team believes that the government will remain alert to those situations where movements of people on apparent social, economic or social grounds may in reality be rooted in those causes recognised in the refugee definitions, it does not accept that its refugee policy should be cast so widely as to include victims of poverty and other social or economic hardships, environmental disasters, or other factors not directly or secondarily recognised in refugee obligations. Accordingly, the task team does not accept that economic migrants should be able to use the refugee determination process in order to obtain residence, employment, the opportunity to carry out business, or to avoid the consequences of the law concerning illegal migration.

3.1.1 Refugee status determination should be the domain of an expert authority with a reasonable assurance of independence from the government. Refugee status determination ought not to be centred on considerations of suitability for residence in South Africa (the clear expertise of the Department of Home Affairs) nor on foreign policy considerations (the domain of the Department of Foreign Affairs). Instead, the expertise required to engage in refugee status determination demands a familiarity with the legal and empirical realities of human rights protection; and the ability effectively to communicate across cultural, linguistic and other divides. It is moreover important that refugee protection be insulated from political interference.

3.1.2 In light of the above, we recommend the establishment within the Department of Home Affairs of a functional entity, separate and independent from that which has responsibility for immigration matters, to administer the system of refugee status determination.

3.2 The Present Determination System

3.2.1 The viability and credibility of the refugee status determination system may be undermined by delays and backlogs, which in turn encourage the submission of fraudulent claims by economic migrants. If this situation is not addressed, there is a risk of breakdown in the overall refugee protection structure. The present status determination system, which was introduced to give effect to the Memorandum of Understanding entered into between the South African government and the United Nations High Commissioner for Refugees, is currently operating with a considerable backlog; and it is also widely abused by migrants coming to South Africa for non refugee related reasons.

3.2.2 On the other hand, the credibility of the refugee status determination system may also be undermined by a procedure which falls short of the principles of natural justice and due process. The current determination procedure does not provide for the oral hearing of the asylum applicant at the first instance or at the appeal level. In particular, the lack of a direct hearing may have a negative impact on the capacity to recognise genuine asylum seekers and screen out economic migrants, as there is no opportunity to assess the credibility of the claimant, or to fill in gaps or explain apparent inconsistencies in his or her story. In addition, the lack of a direct hearing at any stage of the current determination process poses the question of its constitutionality in terms of the right to just administrative action.

3.2.3 It would therefore be appropriate to restructure the current status determination procedure within the framework of the proposed Refugee Bill. Such restructuring may require the provision of additional resources. However, this would be a worthwhile investment to reconcile the need for due process and just administrative action with the need for an effective procedure that discourages abusive and fraudulent asylum applications and enhances the credibility of the refugee protection system.

3.3 Proposed Determination Procedures

3.3.1 The proposed refugee status determination procedure is based on a three-tier structure consisting of preliminary interviews, initial determinations and determinations on appeal. The preliminary interview should be conducted by a specially trained refugee receiving officer at the Refugee Receiving Office to which the applicant has applied or been referred. The purpose of the preliminary interview is to prepare a complete case file on the applicant.

3.3.2 At the first decision-making level, specially selected and trained refugee status determination officers interview applicants based on the files prepared by the refugee receiving officer. The refugee status determination officers are granted authority to make initial determinations of eligibility for refugee status. Applicants have a right to have an adverse initial determination reviewed by the Refugee Appeal Board, if they submit an application for review outlining the grounds of the appeal. A decision made by the Refugee Appeal Board shall be final in terms of the administrative review undertaken by the Department of Home Affairs. However, judicial review by a court of law shall always be available once all administrative remedies have been exhausted. The overall time-frame for the status determination procedure should not be longer than six months.

3.3.3 The standard procedure outlined above should be integrated with and complemented by an accelerated procedure for manifestly founded and manifestly unfounded, abusive and fraudulent claims respectively. Whereas the preliminary interviews and initial determinations are done according to the ordinary procedure, determinations on appeal of the accelerated procedure are made by the Standing Committee on Refugee Affairs. The overall time-frame of the accelerated procedure should not be longer than three months.

3.3.4 As well as their review functions, the Refugee Appeal Board and the Standing Committee should also be entrusted with the supervision of refugee status determination officers, including provision of guidance in terms of fact-finding and credibility assessment, monitoring of consistency in interpretation and application of refugee law, establishment of a data base on country of origin information, and organization of training for refugee status determination officers.

PART 4:

THE SCOPE OF ASYLUM, REFUGEE RIGHTS STANDARDS OF TREATMENT

The government is committed to securing for refugees in South Africa full legal protection provided for under international law, which shall include the rights in the Bill of Rights as set out in the Constitution ( except for those rights from which non citizens have been expressly excluded). In particular:

4.1 South Africa has a duty of non-refoulement, which requires that refugees not be returned, directly or indirectly, to countries where they risk persecution.

4.2 Refugees shall not be prosecuted on account of their illegal entry into or presence in South Africa, provided that they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

4.3 Refugees shall not be expelled from South Africa except on grounds of national security or public order. (Such an expulsion should result from of a decision reached in accordance with due process of law). Except where compelling reasons of national security require otherwise, the refugee shall be allowed to submit evidence, and to appeal to and be represented before a competent authority (or a person or persons specially designated by the competent authority). The refugee shall be allowed a reasonable period within which to seek legal admission into another country. The government reserves the right to apply during that period any internal measures it may consider necessary.

4.4 Refugees shall be afforded basic security rights, including protection from the abuse of state power, such as wrongful arrest and detention, and protection against physical attack.

4.5 . Refugees shall be afforded basic human dignity rights such as protection against discrimination, the right to family unity, freedom of movement and association, and freedom of religion.

4.6 Refugees shall be afforded self-sufficiency rights, such as the right to work and to education.

4.7 Identity Documents

At present, a refugee who has been granted asylum is glen permission to stay in South Africa in terms of the provisions of the Aliens Control Act, 1991, usually in terms of Section 41 or in terms of an exemption from the provisions of Section 23(b). In the terms of Section 41 and Section 23(b), refugees must have their permits renewed at intervals. This system, whereby refugees are considered as prohibited persons allowed to remain in the country on a temporary basis only, does not conform with international refugee law, requires an enormous amount of unnecessary bureaucratic work on the part of already overstretched institutions, is prone to abuse and corruption, and hampers efforts by refugees to become self-sufficient. The Refugee Bill therefore makes provision for the issue of identity documents for refugees. Once status is granted a refugee be issued with an identity document with a bar code similar to that issued to South African citizens and permanent residents This will do away with the need for a refugee to have a temporary permit repeatedly renewed, and will also increase the capacity of the Department of Home Affairs to deal with refugee status determination. Above all, it win facilitate efforts by refugees to become productive, by making it possible for them to enter into employment contracts, register for study, open bank accounts, obtain post of lice boxes, enter into lease agreements, and so forth. A recognised refugee should also be entitled to a South African travel document.

4.8. Durable Solutions

4.8.1 Voluntary Repatriation

The voluntary repatriation of refugees in safety and dignity is considered to be an integral part of the refugee policy of South Africa. The government believes that voluntary repatriation, once conditions change for the better in the country of origin, is the most durable solution to refugee problems. Accordingly:

4.8.1.1 The government endorses the international principles under which the voluntary repatriation of refugees should be promoted and implemented, namely:

1. South Africa shall co-operate with the concerned country[ies] of origin, the UNHCR, and other relevant role-players in taking the measures necessary to bring about conditions which will encourage the refugees concerned to return to their country of origin;
2. the decision to repatriate shall be a free and voluntary one;
3. no refugee shall be forcibly resumed to his or her country of origin against his or her will;
4. repatriation shall take place in conditions of safety and dignity;
5. refugees shall be provided with all the information necessary to make an informed choice as to whether to return or not;
6. measures shall be promoted with the country of origin which guarantee the safety and security of refugees upon return, including the granting of amnesties and clemencies and other confidence-building measures;
7. repatriation shall normally be organised and implemented in a tripartite framework between the country of asylum, the country of origin, and the UNHCR (which is mandated to undertake various functions on-behalf of the international community, including verifying the voluntary nature of the decision to return, organising repatriation, and monitoring the welfare of the refugees and other consequences of return);

8. refugees shall be provided with the necessary assistance to ensure that they are able to reintegrate effectively upon return to the country of origin.

4.8.1.2 South Africa shall work closely with the IJNHCR and other inter-governmental and non-governmental organizations to promote conditions in the country of origin which will not only encourage voluntary repatriation, but also ensure that such repatriation is sustainable and is not immediately reversed. These may include steps towards the healing of ethnic, social, political, religious or regional divisions, restoration of law and order, the development of civil society, and social and economic renewal.

4.8.2 Local Integration

4.8.2.1 The government acknowledges that full protection of refugees requires the attainment of a degree of self-sufficiency and local integration within the host community for the duration of their exile. In fact, it is only by becoming self-sufficient that refugees can lead a productive life, which would make them assets to the host country and facilitate their integration within the local community. Furthermore, allowing refugees to use their skills or develop new ones while in exile will facilitate meaningful reintegration in their countries of origin when they are able to return.

4.8.2.2 Given the high unemployment and limited resources available to nationals, the government lacks concrete means to enable self-sufficiency for refugees. However, it may positively contribute to the attainment of this goal through the creation of an enabling environment. This can be achieved by legislative, regulatory and administrative measures, such as the issuing of identity cards and travel documents, the granting of the right to work and study, the speeding up of eligibility procedures to guarantee security of status. Public awareness can also be raised in order to sensitise the local population to the plight of refugees, explain the differences between refugees and economic migrants, and emphasise the need for acceptance and understanding.

4.8.3 Naturalisation

While reiterating that voluntary repatriation is the best solution for refugee problems, the task team is mindful that there are refugees for whom going home may not be a viable solution in the foreseeable future. 'Therefore, a refugee, having been recognised as a refugee and granted asylum, may, after a period of five years, make application for naturalization. In making such an application, the same criteria will apply to refugees as to permanent residents.

The task team is aware of the special needs of vulnerable groups within the refugee population, including women and children, or unaccompanied minors. Refugee receiving officers and status determination officers shall receive training with regard to the needs of refugee women and children, and, where possible, service to women shall be by women. Regulations promulgated in the case of mass influx of refugees shall include provisions designed to protect women and children, such as those relating to the layout and security of reception centres. Unaccompanied minors shall be considered as children in need of care, and therefore subject to the Child Care Act of 1983.

5.1 There may be crisis situations in other countries whereby considerable numbers of refugees arrive at South Africa's borders, or cross the borders within a relatively short period of time. In these situations, the Minister must be empowered to determine refugee status on a group basis.

5.2 The considerations outlined in Part Four of this document also underlie the government's policy concerning the standards which will apply to mass influxes of refugees into South Africa, should Hey take place. The task team recognises that such situations may necessitate the adoption of special administrative measures. The Minister should be empowered to make regulations with regard to the accommodation and treatment of refugees under these circumstances. Should the Minister deem it necessary to establish reception centres, he or she must consult with the Premier of the province where the refugees are situated or are likely to be situated, the UNHCR, and the Ministers of relevant government departments.

5.3 Also, the pressure of the needs in such crises, together with practical limitations, can make it impossible to meet the standards which should be applied in light of international instruments and protection principles. Nevertheless, acceptable standards of treatment under international refugee law, particularly with regard to the security and dignity of human life, must be aimed at.

6.1.1 The task team recognises the important role of civil society in providing humanitarian assistance to asylum seekers and refugees, and in creating an environment that facilitates attainment of self-sufficiency and local integration. Such a role is even more crucial in South Africa given the limited resources available. The task team therefore appreciates the vibrant network of South African NGOs, in particular the enthusiasm and commitment shown by the Regional Refugee Forums established at present in Gauteng, Cape Town, Durban and Port Elizabeth. Such frameworks for co-operation of service providers have greatly facilitated co-ordination of activities and exchange of information, thereby limiting duplication of efforts, waste of resources, and abuse of assistance. While acknowledging the need for relief by many destitute refugees upon arrival in South Africa, the task team encourages the Regional Refugee Forums to focus on practical assistance and solutions to facilitate self-sufficiency through income generating activities, vocational training and language classes.

6.1.2 The task teen is also appreciative of the initiative to establish a National Consortium on Refugee Affairs, bringing together representatives of the Regional Forums, the UNHCR and research institutes, and chaired by the South African Human Rights Commission. Acknowledging that the aim of the Consortium is to provide input from civil society in the formulation of policies concerning the protection and assistance of refugees in South Africa and the promotion of durable solutions, the government participates in the meetings of the Consortium in an observing and advisory capacity.

6.2 Public Education and Awareness

The task team is aware of growing levels of intolerance against foreigners, as they are seen to be competing for scarce resources. The high level of abuse of the asylum procedure by economic migrants and the lack of understanding of the distinction between economic migrants and refugees, contributes towards intolerance and confrontation, which is not conducive to the intergration of refugees. In order to counter these perceptions of refugees, the task team supports efforts by the UNHCR and NGOs to promote public awareness of the refugee problem through information programmes at grassroots level. The task team believes that an understanding of the causes of refugee movements will lead to the greater acceptance of refugees in host communities, resulting in a greater degree of self-sufficiency: In addition, the task team encourages NGOs and CBOs that offer training in conflict resolution and mediation. Such training may not only help refugees in their new environment, but when they return to their countries of origin. We believe that primary and secondary school curricula should include human rights education in order that a culture of peace, tolerance and understanding may be fostered among the youth.

The task team acknowledges the importance of the principle of international solidarity and burden-sharing, which was first expressed in the OAU Convention. However, it is felt that such issues would be better dealt with within the framework of intergovernmental co-operation at regional and international levels.