SALC IN THE NEWS: SALC Submission on South Africa’s Green Paper on International Migration

Salc : Staff Writer

Submitted 30 September 2016

[Read submission in PDF: salc-submission-green-paper-on-international-migration]

  1. Introduction on the Southern Africa Litigation Centre

The Southern Africa Litigation Centre is a regional NGO which uses public interest litigation and high level advocacy in eleven Southern African countries to realise and advance the rights of marginalized and vulnerable groups and to strengthen the rule of law. In Southern Africa there are few established non-governmental regional initiatives which address serious human rights and rule of law challenges. It was in recognition of this absence and in appreciation of the importance of strategic litigation that SALC was originally established. SALC has been working to advance and promote human rights and also to enhance the quality of jurisprudence, the judicial systems, rule of law and consequently the quality of justice in the Southern African region for 11 years. SALC was founded in 2005. It was created as a regional organisation with a mandate to focus on human rights and rule of law issues and cases. SALC is registered as a trust and non-profit organisation in South Africa. In line with this mandate SALC employs staff members from the Southern African countries in which it operates. This is a necessary requirement for SALC’s operations. Our staff also travel regularly within the SADC region. It is primarily with this in mind that we are making this submission. The submission also draws on our migration knowledge and experience within this region. In order to encourage civil society and other such organisations to consider having a presence in South Africa, there should be policy mechanisms which facilitate the establishment of offices and which promote the documentation of foreign staff members who will staff these institutions. These are necessary considerations for prosperity and job creation.

Our submission focusses on the following issues raised in the Green Paper: Treatment of asylum seekers and refugees; Regional First Safe Country /Safe Third Country Proposals; Need for an efficient refugee status determination procedure; Delinking long stay to permanent residence; Free movement and favourable consideration for African citizens; Long term visas and the retention of international students post-graduation.

  1. International obligations on asylum seekers and refugees

Firstly, our submission sets out in brief the international obligations on the South African state following its ratification of the UN and AU treaties on refugees.

2.1 United Nations 1951 Convention relating to the status of refugees and its 1967 Protocol

South Africa has signed the UN 1951 Refugee Conventioni and its 1967 Protocol. States are supposed to cooperate with the UNHCR in ensuring that the rights of refugees are respected and protected. South Africa has also not entered any reservations to either the Refugee Convention or its Protocol.

Protecting refugees is the primary responsibility of States. Countries that have signed the 1951 Convention are obliged to protect refugees on their territory and treat them according to internationally recognized standards. The Convention is the only international agreement covering the most important aspects of a refugee’s life. According to its terms, refugees deserve, as a minimum, the same standards of treatment enjoyed by other foreign nationals in a given country and, in many cases, the same treatment as nationals. The Convention also recognizes the international scope of the refugee phenomenon and the importance of burden sharing in trying to resolve it, and helps promote international solidarity and cooperation.

2.2 AU Convention governing specific aspect of refugee problems in Africa, 1969 The AU Convention expanded the refugee definition found in the 1951 UN Convention relating to the Status of Refugees. Under the 1951 Convention, a refugee is an individual having “a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion”. The 1969 Convention expanded the definition to include “every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order”. Since its inception, the Convention has made it possible for millions of Africans to reach safety and receive protection and assistance. Its importance and vitality remain undiminished today. While SALC is supportive of a migration management approach we must stress that this needs to be implemented in a way which is respectful of human rights and of the rule of law.

2.3 Commentary on the proposal for an African Dublin-type regional approach

The Green Paper does not take into account the serious delays, administrative hurdles and corruption which plagues the current asylum system. It proposes solutions such as refusal of asylum to persons who have transited through one or more safe countries. This would require a multi-lateral or bilateral arrangement with neighbouring countries modelled on the Dublin agreement in Europe. This kind of arrangement would benefit South Africa but not other SADC countries unless South Africa was willing to make financial and other incentives available to these neighbouring countries eg. By offering easily accessible work permits to nationals of neighbouring countries in exchange for them accepting asylum seekers who would be planning to seek asylum in South Africa. An alternative would be for South Africa to make financial incentives available to neighbouring countries in order for them to accept greater numbers of asylum seekers. Without some form of tangible benefit for neighbouring countries we fail to see that they would be agreeable to such a regional approach.

  1. Commentary of the use of a regional first safe countryii principle arrangement

The Green Paper makes reference to the ‘first safe country’ principle and recommends a Dublin type multi-lateral agreement between southern African states as a means of sharing the refuge burden. The ‘first safe country” principle affects the admission and recognition of asylum seekers. It provides that once a person seeking asylum arrives in a safe country after fleeing persecution, that country is responsible for assessing the asylum claim. Consequently, an asylum seeker is expected to apply for asylum in the first safe country where they have an opportunity to apply for asylum. If they first apply for asylum in a subsequent country, that country can return them to the first country in order to adjudicate their asylum claim there.iii

The European Union encompasses this concept in the ‘safe third party’ principle. Under this principle, an asylum seeker can be refused asylum and sent to a safe third country if the asylum seeker can be afforded protection in that safe third country. The ‘safe third country’ rule differs from the ‘first safe country” principle because an asylum seeker’s claim need not be lodged in the first safe country which they entered en route to their final destination. Various countries have adopted ‘safe third country’ agreements with one another.

These agreements provide that once a person fleeing persecution crosses into a country that is party to these agreements, that party will be responsible for assessing refugee status. The first country which is party to a safe third party agreement is not always the first safe country a refugee enters but it will bear the responsibility of assessing that refugee’s status. The Dublin regulation dictates a more complex method of assessment regarding which country carries the responsibility of assessing an asylum claim. This involves criteria in addition to first country of entry including: the principle of family unity, the issuance of residence permits or visas, and illegal entry or stay in a member state. Therefore, under the regulation, the country responsible for assessing a claim will not always be the first safe country. The application of the rule may result in the denial of meritorious asylum claims because an individual passed through a number of countries en route to his or her final destination. Ultimately this practice risks subjecting refugees to whatever persecution they sought to avoid. Potentially, it could establish a legal framework whereby no country is willing to offer them protection as refugees.

  1. Application of the “Safe Third Country” Principle in the European Union and Australia

The Green Paper refers to international practises hence we have included some commentary on this. The European Union (EU) and Australia also apply ‘the safe third country’ a principle as part of their asylum process. The Dublin II regulation is binding on all EU States. Denmark, who consented to its application, regulates the procedure for the examination of applications for asylum. The regulation establishes a hierarchy of criteria for identifying the EU Member State responsible for processing an asylum claim. This usually is the State through which the asylum seeker first entered the EU. It allows States to send an applicant for asylum to the state of first entry. It also allows for the return of an asylum seeker to a non-EU state if that state is considered safe. However, Article 3 of the regulation also allows a State to examine an application for asylum, ‘even if such examination is not its responsibility under the criteria laid down in the Regulation’. In contrast, the Australian safe third country system is much stricter than the European system. Australia has not entered a safe third country agreement with any other country. Therefore Australian Refugee policy derives solely from Australian legislation and case law. Section 36(3) of the Border Protection Legislation Amendment Act 199916 states that Australia has no obligation to protect an asylum-seeker who has ‘not taken all possible steps to avail himself of a right to enter and reside in…any country apart from Australia’. This statute authorizes Australia to deport an asylum seeker back to any country that he travelled through. Then, the asylum seeker may be sent to any country where he might have a right to dual nationality regardless of whether that country is ‘safe’. A High Court decision in Australia has stated that Australia still owes asylum seekers protection in terms international law and sending them to an unsafe country would be a breach of its obligations.

SALC would guard against the use of the ‘First Safe Country’ Principle particularly if this could result in prejudice or harm to an asylum seeker.

  1. The urgent need for an efficient and speedy refugee status determination process including an appeals authority

The Green Paper laments the abuse of the asylum system but does not detail the existing problems within the determination process. Currently, the system appears to reject the majority of asylum seekers at the first stage, resulting in almost every rejected asylum seeker having to lodge an appeal before the Refugee Appeal Board which has a mammoth backlog and which is unable to speedily resolve these cases. This bottle neck results in asylum seekers remaining in asylum limbo for extended periods of up to 6-10 years while waiting for their appeal to be finalised. This is a capacity and resource problem which is not going to disappear with the arrival of a new determination system. The appeals process requires additional capacity to resolve the backlog of asylum claims which it has been carrying for many years.

The Green Paper’s claims of abuse of the asylum system will be resolved if the determination and appeals process were able to swiftly and efficiently move people out of the process once their asylum claim has been adjudicated. Further, there will be less of an incentive to ‘abuse’ the asylum system if these claims were processed quickly. The delays in the processing and finalising of asylum claims has facilitated a situation where people can remain in asylum limbo for prolonged and indefinite periods whilst remaining documented. SALC agrees that this is an untenable situation but the proposed solutions in the Green Paper do not attempt to adequately deal with the structural problems in the system.

  1. No acknowledgement of other non-conflict grounds for asylum

The Green Paper makes the claim that SA receives a high number of individual asylum seekers from almost all regions of the world, including from countries that are stable. Instability and conflict are not the only grounds for seeking asylum. There are other genuine grounds for example persecution on the basis of sexual orientation and gender identity which could motivate persons from stable countries to seek asylum. The majority of countries in Africa, 34 of 54, maintain laws that criminalise consensual same sex sexual practises between males, with 24 of these applying to sexual relations between women. These laws most often perpetuate stigma, persecution and discrimination on the basis of a person’s sexual orientation and gender identity.iv There is no acknowledgement of these other asylum grounds in the Green Paper.

The Green Paper contends that South Africa is among the top 5 countries which have received the most individual asylum seekers internationally. This is not truev and while South Africa did have the second-largest multi-year backlog of unsettled asylum cases in the world in 2015, the number of pending cases at the end of 2015 was 381,754 and only 62,159 new asylum applications were received in 2015vi. This is a 13.5% reduction in asylum seeker numbers between 2014 and 2015.

  1. The removal of the right to work and study for asylum seekers

SALC does not support this proposal. We are concerned from our observation of the current asylum system that asylum seekers will remain voiceless and impoverished unless they are able to support themselves. We don’t believe that jointly the state and UNHCR would be able to create sufficient mechanisms which would be able to provide for the basic needs of asylum seekers. Further, we submit that an attempt to move asylum processing to the border regions will be counter-productive; and could result of the development of informal shanty towns in the border regions. These could very well increase insecurity for the asylum seekers, staff at these centres, residents of nearby towns and the state.

  1. Detention of asylum seekers

We note with concern the Green Paper’s intention to establish secure administrative detention centres for asylum seekers. This is contrary to South Africa’s policy of non-encampment. The Department of Home Affairs has made strides in complying with legislative safeguards on immigration detentions but this has in the most part been driven by litigation challenging unfair and unlawful processes. SALC is concerned that a process which allows for the administrative detention of asylum seekers will open up the state to further litigation processes. South Africa has further been unable to deal with the backlog of asylum applications which are currently pending- it may not be pragmatic to be contemplating detaining asylum seekers when the asylum processes have not been streamlined to fast track the finalisation of cases.

  1. Delinking of permits to Permanent Residence

We accept that the granting of citizenship should be exceptional- and if this is the case this should operate across the board to all persons with openness and transparency. We are however extremely concerned about the proposal to delink long stay in the country and access to permanent residence. We submit that this proposal is not only unfair, not in line with international practise and also morally unjust. If foreign nationals have received long terms permits and remain in the country for a period of five years they should have access to permanent residence. If this proposal was implemented it would result in a loss of skill and experience of persons who do not fall within the critical skills category but who are nevertheless in employment. If these persons were unable to obtain some kind of immigration stability they would be unable to access loans to purchase homes, cars etc. experience difficulty in renting accommodation and the country would consequently face losing these persons.

We would recommend for government to maintain the status quo and consider persons for permanent residence on the basis on five consecutive years of legal residence in the country; as long as they do not hold a criminal record or pose a security risk.

  1. Free movement for African citizens

The proposed policy on the free movement of African citizens is a positive development. The eradication of difficult and time-consuming visa processes- particularly for frequent and low risk travellers is positive. A policy based on the European Schengen model could work well for South Africa and would facilitate regional travel. SALC is supportive of this proposed development.

10.1 SADC nationals and other Africans should receive more favourable consideration for work permits and recommendation of long term multiple entry visas for trusted travellers / visa on arrival

SALC employs nationals of SADC countries and the rationale for this has been explained in the introductory paragraphs. As an organisation we are required to sponsor work permit applications which take a long duration of time to process and for which there is no guarantee of success. Both SALC and similar situated organisations experience prejudice as a result of the difficult and time consuming processes. We are as a result not always able to employ the best suited candidate to fill a vacancy.

SALC and its partners carry out a great deal of travel within the SADC region but also in East and West Africa. While travel within SADC is easy and for the most part trouble-free; our East African and West African partners experience serious difficulties with applications for South African visas. This impacts on their ability to travel to the SADC region and seriously impacts on our ability to engage in an effective partnership with them. Visa application processes are time consuming and do not always guarantee the presence of an individual at important events held in South Africa.

We would recommend more favourable treatment for frequent African travellers as well as some consideration of long duration multiple entry visas for travellers who have complied with previous visa conditions. We would also encourage the issuance of a visa on arrival for those low risk individuals who do require visas.

10.2 Commentary on ad hoc regularisation processes

We recognise that there has been previous ad hoc processes to regularise the immigration status of undocumented SADC nationals in the country. While these have been progressive policy developments there has been no strategic thinking behind these ad hoc processes and as a result there are no immediate plans for follow up renewal processes eg. For the Zimbabwean ZSP permits which are due to expire soon. These Zimbabwean citizens are persons who have been in the country for at least 8-10 years; they are for the most part in employment and the long duration of this employment suggests that the employers would be reluctant to lose them and their inability to renew their ZSP permits would create undue hardship for employers and ZSP permit holders.

We also submit that increased stability in neighbouring countries directly affects the nature and degree of migration to South Africa. This is worth bearing in mind when considering foreign policy decisions and interventions which could directly affect migration in the region.

10.3 African Passport

While this is not specifically raised in the Green Paper we note that the July 2016 AU Summit launched a visa-free African passport which was initially made available to government leaders and diplomats. These are persons who ordinarily do not encounter difficulties when travelling in Africa. Notwithstanding, this is a good move and we encourage South Africa to make this passport available to a broader group of persons in the short term without limiting access only to government and diplomats.

10.4 Long-term visa

SALC supports the implementation of a long term visa for migrants with skills, investment and business interests. We would however recommend that the processing times be quick and the process remains fair and transparent. These should be developed with open and transparent appeal processes. The visa should also apply equally to those with skills for the private and business section as well as for the civil society sector as both sectors are important in striving towards the aims of the Green Paper.

10.5 Retention of international students post-graduation

SALC is supportive of this development. International graduates of South African universities should receive favourable treatment in respect of work permits.

10.6 The Protocol on the facilitation of movement of persons of 2005

We are unlikely to see the protocol enter into force any time soon. Since it’s drafting more than 10 years ago only four member states have ratified and there appears to be no appetite for further ratifications. If South Africa is serious about free movement it will need to draft legislation to facilitate this and further move to sign bilateral agreements with SADC states in order to realise this goal of free movement.

i http://www.unhcr.org/1951-refugee-convention.html

ii Ramjathan-Keogh,K. Ncube, W. Lemon,P. Lawyers for Human Rights Legal Brief on the “First Safe Country” Principle http://www.lhr.org.za/sites/lhr.org.za/files/lawyers_for_human_rights_brief_on_the_first_safe_country_principle_final_doc_1.pdf

iii J Hathaway, The rights of refugees under international law 2005

iv Esterhuizen, T. Meerkotter, A. Key developments towards increased recognition of the human rights of LGBTI people in Africa in ILGA State Sponsored Homophobia, 2016.

v https://africacheck.org/reports/south-africa-home-million-refugees-numbers-dont-add/

vivi http://pmg-assets.s3-website-eu-west-1.amazonaws.com/160308Asylum.pdf

Submitted by the Southern Africa Litigation Centre