Insiders but outsiders: the struggle for the inclusion of asylum seekers and refugees in South Africa.

Author:Belvedere, M. Florencia
 
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Abstract

This article examines the politics of urban refugees in South Africa. It shows that despite South Africa's adoption of an encompassing rights-regarding legal framework that has the potential to be inclusive towards asylum seekers and refugees in the country and afford them basic human rights and protection, asylum seekers and refugees nonetheless remain "internally excluded," predominantly as a result of practices adopted by a nationalist Department of Home Affairs to implement refugee legislation and by the UNHCR in its quest to prioritize the safeguarding of the institution of asylum. The article also shows how the adoption of these practices has been facilitated by a construction of asylum seekers and refugees as "bogus" claimants who have no place in post-apartheid South Africa.

Resume

Cet article examine la politique sur les refugies urbains en Afrique du Sud. Il demontre que malgre l'adoption par l'Afrique du Sud d'un cadre juridique englobant le respect des droits, qui ale potentiel d'etre inclusif envers les demandeurs d'asile et les refugies clans le pays et de leur assurer les droits fondamentaux et la protection, les demandeurs d'asile et les refugies restent neanmoins des >, principalement en raison des pratiques adoptees dam l'implementation de la legislation concernant les refugies par un Departement des affaires inteieures nationaliste, et par le HCR, clans sa quete de privilegier la sauvegarde de l'institution du droit d'asile. L 'article demontre aussi comment l'adoption de ces pratiques a ete facilitee par le fait de depeindre les deman deurs d'asile et les refugies comme de > demandeurs n 'ayant pas leurs places dans une Afrique du Sud post apartheid.

Introduction

In a society like ours which prides itself on its noble sentiments, [the treatment of refugees] is shameful. As South Africans we are justifiably proud of our country and of our democracy which has just celebrated its tenth birthday. We are proud of those policies which are enshrined in the Constitution, a constitution which is unparalleled in Africa, and indeed equals those of the most advanced countries in the world in terms of liberality and compassion...We subscribe to the principles contained in international treaties...We claim to enforce the laws put in place to protect the rights of [refugees], and especially those pertaining to children. Yet all these lofty ideals become hypocritical nonsense if those policies and sentiments are not translated into action by those who are put in positions of power by the state to do exactly that; who are paid to execute these admirable laws and yet, because of apathy and lack of compassion, fail to do so.

--Judge Anne Marie De Vos, 2004 (1)

Jude De Vos's harsh words, directed at representatives from the South African Departments of Home Affairs and Social Development and the South African Police Services for their failure to desist from continuing to detain approximately one hundred unaccompanied foreign minors, both undocumented foreign children and asylum seeker/refugee children, at the Lindela Repatriation Centre, encapsulate the challenges that asylum seekers and refugees continue to face in their battle for inclusion in the post-apartheid South African state despite the fact that South Africa boasts a progressive legal framework within which the rights of these urban-based asylum seekers and refugees can be respected. However, as much as apathy and lack of compassion have come to characterize the treatment of asylum seekers and refugees in South Africa, I will argue that this sense of apathy and lack of compassion are in themselves the effect of a number of practices adopted by sectors of a nationalist post-apartheid South African state that, despite its commitment to the respect of human rights, evidenced through its adoption of an encompassing Constitution, its accession to international refugee conventions, and its adoption of a rights-regarding Refugees Act, nonetheless is bent on prioritizing the needs of South Africans first and deferring those of non-citizens such as asylum seekers and refugees. While there is no denying the need for the post-apartheid state to produce a sense of unity in the country against an apartheid history of division and dehumanization, the state's production of its citizens is ironically being facilitated by the dehumanization of asylum seekers and refugees and their recurrent portrayal as "bogus" claimants whose intent is to deprive South Africans from enjoying the spoils of their struggles and who should not be in South Africa in the first place. As much as in a country like South Africa it is the government, rather than the United Nations High Commissioner on Refugees (UNHCR), which bears ultimate responsibility for the well-being of asylum seekers and refugees in the country, as illustrated by its willingness to accede to the UN 1951 Conventions, its 1967 Protocol and the 1969 OAU Convention, I will nonetheless argue that UNHCR's practices to safeguard the institution of asylum in South Africa against what it perceives to be either "bogus" claimants or "irregular movers" finds an echo in nationalist practices by a Department of Home Affairs that jointly work to "internally exclude" asylum seekers and refugees, despite their legal protections, and further contribute to their dehumanization.

I rely on the use of the term "internal inclusion" to highlight the dissonance that exists between the rights and protections accorded to asylum seekers and refugees on paper, embodied in South Africa's Constitution, its Refugees Act and the mandate of the UNHCR, and the practical adoption and implementation of policies to give effect to those rights and protections which, informed by nationalist state sentiments and often tacitly supported by UNHCR, serve to undermine the realization of those very same rights and protections. To illustrate how asylum seekers and refugees exist in a state of "internal exclusion" in South Africa, in the first part of this article I provide some background to the urban refugee situation. In the second part, I focus on key government practices that serve to reproduce the internal exclusion of asylum seekers and refugees. In particular, I show how nationalist practices have negatively influenced the ability of asylum seekers and refugees to access refugee reception offices and obtain documentation to secure their stay in the country, as well as the "disabling" types of documents that asylum seekers and refugees are issued and with which they have to secure their survival in the face of no state-provided assistance. The third part of this article focuses on how the UNHCR's policy on urban areas and its quest to safeguard the institution of asylum serve to reproduce asylum seekers' and refugees' state of internal exclusion.

Contextual Background to the South African Refugee Situation

South Africa is characterized by a non-camp, urban refugee situation where asylum seekers and refugees have freedom of movement within the country. However, their settlement in the country is generally confined to large urban centres such as Johannesburg, Cape Town, Pretoria, Durban, and Port Elizabeth, due to the fact that Refugee Reception Offices, where asylum seekers and refugees have to renew their permits, are located in these major centres. According to the UNHCR, by the year 2000, South Africa had come to host the largest single concentration of urban refugees and asylum seekers in the southern African region, (2) currently made up of approximately 30,000 recognized refugees and 120,000 asylum seekers, predominantly from African countries.

The South African government's policy towards asylum seekers and refugees is guided by the Refugees Act of 1998, which came into effect in April 2000 after the proclamation of its accompanying regulations, and which is administered by the Department of Home Affairs. In broad strokes, the Refugees Act and its regulations envision the asylum procedure to work as follows. Except in cases where the Minister declares a group or category of persons to be refugees in order to deal with a mass influx, each asylum application is expected to be individually determined. Consequently, a person who wants to apply for asylum needs to complete "without delay" an application form with a Refugee Reception Officer (RRO) in person at one of the established refugee reception offices located inland in five major urban areas, namely, Johannesburg, Pretoria, Cape Town, Durban, and Port Elizabeth. At this time, the applicant is issued with an asylum seeker permit in terms of Section 22 of the Act, which must be renewed until the applicant is asked to return to the refugee reception office to undergo a "non-adversarial" interview with a Refugee Status Determination Officer (RSDO), who determines whether to grant or reject refugee status.

Depending on the outcome of the application, the applicant is granted refugee status and subsequently issued a refugee permit in line with Section 24 of the Act, or is given the opportunity to appeal the decision to the Refugee Appeal Board or the Standing Committee, depending on the grounds for rejection. If these two bodies uphold the decisions of the RSDO, the applicant is able to seek judicial review of the decisions by a high court, in line with Section 33 of the Constitution. Keeping these different permutations in mind, the regulations state that asylum applications should be adjudicated or finalized by the Department of Home Affairs "within 180 days of filing a completed asylum application with a Refugee Reception Officer." (3)

In line with South Africa's Constitution, the Refugees Act explicitly states that recognized refugees enjoy the rights contained in its Bill of Rights, which, unlike many constitutions in the world, not only embodies a bill of justiciable (4) fundamental civil, political, cultural and socio-economic rights, but also expressly extends most of these...

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