Lolly Jackson: Outrage and (Intellectual) Outages

13th May 2010

In the middle of all the hue and cry and what seemed to some to be a media feeding frenzy around the death of Lolly Jackson, one headline struck a particularly discordant note. It proclaimed curiously that Interpol was "outraged" over a "shady Lolly deal."

Interpol's Colonel Tumi Golding was widely quoted in this context as making a number of unfortunate remarks not least that "we need to know why [an alleged deal was made which supposedly allowed Mr. Jackson's friend, Mr. Krejcir, to stay in South Africa] because (this suggests) that it is alright to allow people who enter South Africa illegally to stay without any consequences." And in the same statement she is also quoted as saying that answers would be "demanded" from Home Affairs. She also noted, and this is somewhat critical, that Mr. Krejcir had applied for political asylum.

Colonel Golding's comments about illegal entry / residence by asylum seekers, assuming these are reportedly accurately, point to the existence of a number of common misunderstandings about the difference between immigration and refugee law - albeit these are not errors one would actually have expected of Interpol.

The Immigration Act captures the widely-recognized principle that a state has the right to control who enters, remains and/or leaves the state - when, where and how. On the other hand, the whole rationale for refugee law is to offer protection - whether temporarily or permanently - to persons who have been compelled to flee their homes because they have been persecuted - or because that they face persecution should they return home -for one of a very limited number of reasons. The grounds set out in the 1951 UN Convention Relating to the Status of Refugees are the asylum seeker's race, religion, nationality, political opinion or membership of a particular social group. These grounds are set out in section 3 of the Refugees Act, 1998.

The guiding principles of refugee law flow from several international conventions, the central one being the 1951 UN Convention, to which most countries have acceded. These recognise that it is in everyone's interests that refugees be properly protected even if this duty is out of very selfish reasons, to allow refugee influxes to be properly managed. In short, in terms of section 2 of the Refugees Act, if someone knocks at the country's front door seeking asylum and asks to be allowed in to apply, he or she has to be allowed to enter so that the claim can first be tested.

Political refugees are not to be confused with so-called ‘economic refugees' who have fled their homes and countries to escape grinding poverty, starvation or merely to seek better opportunities elsewhere. These economic factors are not reasons recognised by the international conventions on refugee status.

However it can often happen that either the very term ‘seeking asylum' is misunderstood (as evidenced by Colonel Golding) or the poverty being endured has itself been engineered by political factors or appears to have been. And so, would-be asylum seekers cite these economic grounds as being their reasons for seeking refugee status. And of course there will also be abusive or entirely fabricated applications. All of this is part and parcel of the refugee determination process and it is a global phenomenon. What this means is that the host state has to patiently receive and consider these applications and if they do not qualify, they fall to be rejected - as does happen.

But the Refugee Conventions also recognise that all too often would-be refugees do not have the luxury of carefully planning their escape from their countries of origin and popping into their travel agent and sorting out passports and visas. Sometimes people will flee without documents or with false documents. We should not forget our own country's troubled past where many thousands of people fled and did not have the opportunity of leaving officially and legally through border posts. And so it is that the Conventions call for recognition of this tragic fact of life.

Accordingly, section 21(4) of the Refugees Act provides that despite what any other law may provide, where a person has applied for asylum, he or she will enjoy immunity from prosecution for having entered the country illegally or for having stayed here illegally.

This statutory immunity is qualified however.

If the asylum seeker's application for refugee status subsequently fails he or she can then be prosecuted by the state for contravening the Immigration Act in this regard. If however the asylum seeker's application succeeds, then the immunity stands and the refugee cannot be prosecuted - for entering or remaining in South Africa, illegally.

A further important component of the refugee conventions is that the asylum application process is strictly confidential. This appears at section 21(5) of the Refugees Act. For self-evident reasons, it is not a public process - save and unless, at this time, the case reaches the High Court.

Having regard to these various relevant provisions of the Refugees Act, it is assumed that this is why the Department of Home Affairs has not seen fit to react to Interpol's various remarks and demands.

Interpol has unfortunately quite misunderstood the provisions of the Refugees Act and the protections afforded to refugees and those seeking to protection from their country of origin. In point of fact, not too long ago, the High Court took both the Department of Home Affairs and the Refugee Appeal Board, to task for apparently entertaining interference by Interpol in another asylum application. But tragically, as a concluding note, it is also precisely these intellectual outages that fuel xenophobia in this country.