Issues that affect migrants and citizens: engagement with NGOs & stakeholders

Meeting report

Multimedia presentation from Scalabrini is available at the following link: https://scalabrini.org.za/news/migration-in-south-africa-three-issues-and-three-solutions-video/

The Chairperson said the meeting was convened following various letters sent to the Committee, some of which had come through the Speaker. The non-governmental organisations (NGOs) thought that the Committee was a platform that could be used to contribute to addressing issues of immigration that challenged the country. The Committee was a breakaway session of Parliament, convened on behalf of the entire Parliament. He reminded the presenters that they would be talking to Parliament, which was committed to a better South Africa, a better Africa and a better world. Inputs and contributions to issues of immigration – which was very complex – were welcomed.

Briefing by Scalabrini Centre of Cape Town

Ms Sally Gandar: Head: Advocacy& Legal Advisor: Scalabrini Centre of Cape Town, began by invitation that Scalabrini values the interaction and the oversight function of the Committee in respect of the DHA. Scalabrini then screened a clip video that answered questions posed by the Committee in the invitation: description of the work Scalabrini Centre does;  issues affecting citizens, migrants, asylum-seekers and refugees; proposed solutions; and ways Scalabrini centre would like to interact with the Committee going forward. The clip focused on three long-standing issues that Scalabrini has engaged with for a number of years, and which impacted on its client community. These were:

• South Africa’s struggling asylum-system, this included the closure of Refugee Reception Offices (RRO) and barriers to documentation or renewal thereof, as well as South Africa’s protracted asylum system. Further difficulties mentioned were those related to resources, numbers, capacity and corruption. Scalabrini also highlighted the issue of new asylum seekers being issued with appointment slips for as far ahead as 2021, as well as the poor quality of decisions at RSDO level, which increases backlogs at the Refugee Appeal Board and Standing Committee on Refugee Affairs level – pushing people into a paper queue in the review or appeal process. As of 2018, the Refugee Appeal Board backlog sits at 147 794 people
• Issues faced by Angolan former refugees and the impact of the Angolan cessation clause process, including the problem that spouses and children of Angolan Special Permit holders have no documentation options in South Africa. The Angolan Cessation Committee has been asking for a meeting with the Minister since January 2019 to address some of these issues
• Barriers to documentation for foreign national children: migrants, asylum-seekers and refugees. Regulations to the Birth and Death Registration Act inhibits the right of a foreign child’s birth registered

​Scalabrini Centre’s multimedia presentation proposed the following solutions to the three issues highlighted:

• An efficient and correctly functioning asylum system that protects those in need of protection and ensure that those who shouldn’t be in the system are provided with swift refusals. It can be fixed through five simple and cost effective measures: (i) implement the court order and reopen urban refugee reception offices; (ii) improve the capacity and quality of RSDO decisions at first instance; (iii) reduce the backlogs at the SCRA and RAB level; which could be done through the use of group decisions for asylum seekers from the Eastern DRC and Somalia; (iv) find ways to reduce the amount of time used in terms of staff hours at Refugee Reception Offices, such as issuing asylum seeker permits for longer periods; (v) implement a complementary visa regime as set out in the White Paper.
• For Angolan former refugees, a solution would be for the 2 000 impacted individuals being permitted to get Permanent Residence.
• Birth registration should not be contingent upon a parent’s documentation system. Amend the Immigration Act to allow for child migrants to apply for a special permit from within South Africa allowing them to be documented.

Scalabrini Centre concluded by indicating that the Centre had put together information packs for the Portfolio Committee, which included Scalabrini Centre’s Annual Report; an asylum flowchart; and case summaries of cases that the Minister has twice mentioned to the Portfolio Committee: Bula; Somali Traders; and Wachenuka.

Briefing by Consortium for Refugees and Migrants in South Africa (CoRMSA)

Mr Thifulufheli Sinthumule, Director: CoRMSA, said the NGO’s presentation was grounded in the thought that the new South Africa was built on a culture of inclusiveness, tolerance and human rights, as embodied in the Constitution. He highlighted issues affecting migrants, refugees and asylum-seekers. These were:

• denial of access to Refugee Reception Offices (RROs) around the country;
• denial of access to critical and life saving basic services such as healthcare, education, employment, shelter, banking and documentation;
• on-going xenophobic violence incited by politicians and government officials;
• development of anti-migrant and refugee policies. such as the 2017 Refugee Amendment Act and the 2017 White Paper on International Migration;
• the growing gap and unwillingness of government to engage with civil society organisations (CSOs) and rights holders;
• intentional ignorance and disrespect of the rule of law – government departments being in contempt in relation to the closure of RROs; and
• a lack of political willingness to debate migration and its characteristics.

Mr Sinthumule proposed solutions to the highlighted issues. He said that:

• The government should see refugees, asylum seekers and migrants as part of the larger community, and not as aliens.
• The government should admit that xenophobia did exist.
• On policy development, reasonable time should be allocated for public comments and submissions.
• There was a need for a development of a more integrative approach by all stakeholders to ensure that refugees, asylum seekers and migrants were managed within a human rights-based framework.
• The government had to address bureaucratic and abusive processes at RROs.
• The government ought to hold those involved in discrimination and xenophobia accountable.
• There was a need to enhance the Independent Electoral Commission’s Code of Conduct so as to ensure that politicians who incited violence during political campaigns were held accountable.
• There was a need to promote a migration-friendly media reporting framework, and to strengthen Chapter 9 Institutions to enforce and monitor human rights violation of migrants, refugees and asylum-seekers.

Mr Sinthumule had the following recommendations for CSOs and the Committee on engagement:

• The Committee ought to engage, monitor and listen to the CSOs’ pleas on issues they raise, including policies.
• The Committee should conduct physical study visits (consultation) to CSOs to become conversant with the people and assess the impact of the delivery of service by different departments.
• There should be promotion of linkages between CSOs and law-makers. This included an engagement with the Committee on any possible policy changes or developments.
• For the introduction of a deliberative democratic model, CSOs should take a more active role in setting the agenda for the Committee policy discussion.

Briefing by Africa Unite

Ms Nthati Lesaoana, Human Rights Coordinator, said the objectives of the presentation were to raise their concerns, to give practical -- and not academic – solutions, and to find a way in which they could create a sustainable partnership with the Department of Home Affairs (DHA).

Issues of concerns were related to the issuance of documentation to asylum-seekers and refugees. Asylum-seekers were challenged by a long administrative process that could result in an individual holding an asylum-seeker status for more than 20 years. Recognised refugees had a challenge in getting an identity document (ID)/Passport although they qualified. Both asylum-seekers and refugees had a challenge in renewing their documents. Asylum-seekers had to travel back to Durban or Musina to renew their documents every three or six months. They also faced a challenge in the family reunification processes.

On the other hand, the DHA was faced with the challenge of corruption, being understaffed and having a limited number of offices to renew documents. A further issue of concern was xenophobic violence, which was incited by the criminalisation of migration by the politicians. Criminalisation resulted in stereotypes, looting, and killings by locals of migrants and refugees. Xenophobic violence was also experienced at the school level.

Ms Lesaoana proposed solutions to solving issues of documents. These included:

• A general amnesty to genuine refugees;
• The same application process and duration for locals and refugees;
• Longer DHA office hours (including Saturdays and Sundays);
• Establishment of more DHA offices in Cape Town, Johannesburg and Durban for newcomers;
• Family applications should not be separated; and
• Monitoring and evaluation of staff should be strengthened.

Ms Lesaoana proposed solutions to solving the causes of xenophobic violence, such as holding officials/politicians accountable when they made xenophobic statements, employing migrants and refugees to work as police (use a criminal to catch a criminal), and to develop a human rights manual for the promotion of social cohesion.

Ms Lesaoana concluded her presentation by taking the Committee through the work of the Africa Unite organisation.

Briefing by Women and Children at Concern (WCC)

Mr Jean Pierre Balous, Director: WCC, said that the NGOs were senior activists who conducted their activities in a businesslike way, and not in a manner that protected vulnerable migrants, refugees and asylum-seekers. The Committee should engage with migrants, refugees and asylum-seekers directly and not through refugee-based organisations. Foreign nationals had been killed on a daily basis since 2008, but these NGOs had done nothing about it, and neither had the government reacted to address the issue. Rather, violent and xenophobic speeches had been being pronounced by top officials and politicians. No one had been arrested and prosecuted. The senior officials included the President, Ministers and Mayors.

As a result, migrants, refugees and asylum-seekers were losing their lives. The NGOs were losing nothing and were running their businesses as usual. In their view, refugees were leading a better life in South Africa. The question was, who were being murdered during the xenophobic violence? It was the refugees -- the children, mothers, aunties, fathers, uncles, brothers and sisters.

They had decided to create an organisation that would bring refugees and asylum-seekers together to address all the issues relating to xenophobic violence. This organisation intended to bring many things to light which were hidden by the NGOs. The NGOs were concerned with the funding, and not concerned for the well-being of refugees. When there was the Marikana massacre, the South African Human Rights Commission (SAHRC) had stood up. Other human rights organisations had stood up. However, migrants, refugees and asylum-seekers were being killed in silence, and no one who wanted to come and speak out on their behalf.

With regard to Marikana, a Commission of Inquiry was instituted, and as a result the families of the victims would be paid R1.2 million, plus other benefits. On the contrary, no commission of inquiry was instituted to investigate the killing of foreigners, and no foreign victim would ever see justice. No foreign victim would be compensated for losing their beloved ones, for being injured or for having their properties looted. What would happen to those refugees who were burnt alive? Nothing would happen to them, simply because they were viewed as nothing and because they were not citizens. In particular, refugees and asylum-seekers were compelled to live in inhumane conditions, and the NGOs were quiet about this.

Refugees and asylum-seekers were very upset and shocked by how they had to lead their lives in South Africa. There had been no direct engagements with victims of xenophobic violence since 2008. This had not happened because the government did not accept that it was xenophobia, but crime. The government posited that violence was committed by criminal elements.

More than 200 foreigners had been killed since March 2018, according to a Human Rights Watch report. There were no human rights in South Africa. Despite this fact, South Africa was stating at international platforms that it was defending and promoting the human rights of all Africans. That was no true. Africans were being killed in South Africa and the government was doing nothing about it. South Africa was rendering children fatherless and motherless. They were being rendered stateless persons, so they were being denied the right to name, to birth certificates, and to education. What future was South Africa preparing for these innocent children?

He had heard that South Africa’s constitution was best in the world. What kind of constitution would deny children the right to documentation? Children who were born in South Africa were denied access to documentation and, as a result, to healthcare and education services.

This had happening for a long time. Therefore, refugees and asylum-seekers were tired of this ill treatment and would like to request the intervention of the Committee to assist in the facilitation of their relocation to another country. Matter of asylum should be handed to the United Nations High Commission for Refugees (UNHCR). The UNHCR should manage refugees and asylum-seekers, and the government should be withdrawn from dealing with asylum matters. Refugees and asylum-seekers could be not continue being killed and their bodies thrown away like rubbish. Enough was enough. They could not continue to be treated as second class citizens.

He reminded Members that during apartheid, South Africans fled their country and that Africans and their governments had financially contributed to their liberation struggle. Was killing fellow Africans the way to appreciate their contribution?

The WCC was not requesting the amendment of immigration and refugee policies, like other NGOs, but rather that refugees be assisted to leave South Africa for good. They were conducting a sit-in in front of the UNHCR-Cape Town office because they wanted to leave South Africa in peace. The genocide against migrants, refugees and asylum-seekers was under way. It was very awkward to hear the President of the Republic – who was a lawyer – pronouncing a speech inciting violence. The President knew very well about the right to life that ought to be protected.

There could not be a social cohesion if the government had no political will to document refugees and asylum-seekers. They would not be integrated in the community if they remained undocumented. Refugees and asylum-seekers were living in South Africa as prisoners and people who were under house arrest. For the last 20 years, recognised refugees had no right to travel beyond South Africa. They were denied the right to a passport. Former President Thabo Mbeki used to travel all over the world using a Tanzanian passport.

It was difficult to understand the spirit of South Africa, because when refugees were qualified to apply for citizenship, the government became suspicious about their applications. Refugees who became permanent residents and who acquired green IDs, were treated suspiciously. They were not treated equally, like other holders of the green IDs.

Refugees and asylum-seekers were therefore ready to leave South Africa, and it mattered little if they were to be relocated to the Kalahari Desert. What was important was to save their lives from the on-going genocide against foreign nationals. Their lives mattered. They could not continue to be killed in eyes of police officers who would merely watch and laugh instead of reacting. The WCC submitted that they were no longer interested in documentation or amendment of policies, but rather in being resettled to a third country. The Committee should speak to the government and ensure that refugees and asylum-seekers were allowed to leave the country in one piece and in peace.

Briefing by Lawyers for Human Rights (LHR)

Ms Sharon Ekambaram, Head: Refugee & Migrant Rights Programme, Lawyers for Human Rights: LHR, highlighted six key issues of concern to the LHR. The discussion must be framed with reference to the growing impacts of the climate crisis facing the world, particularly in relation to forced migration which has meant 65 million people were displaced globally in 2015 and today it is at 70 million people (UNHCR statistics).

Ms Ekambaram provided a brief history of LHR, that the NGO has been around for over 40 years, and played a formidable role in the fight against the death penalty. LHR’s work covers six areas: strategic litigation; refugee and migrant rights programme; penal reform programme; gender equality programme; environmental rights programme; and land and housing programme. Defending the rights of refugees and migrants is one of LHR’s biggest programmes and has been running for over 20 years. LHR members played an important role in the formulation of the Refugees Act.

She also raised the question of corruption, of detention and its use a tool to manage the movement of people in South Africa; the National Health Insurance (NHI) Bil; the right to work for asylum seekers; and the SADC visa.. LHR have already met with the new Minister of Home Affairs, and have been trying to engage with the DHA particularly around litigation. She indicated that LHR does not want to litigate, but would rather like to work with the Committee and Department.

On corruption, she asked the Committee to respond to the recommendations made in the 2015 report produced by the LHR entitled, “Queue Here for Corruption.”, particularly in respect of the Committee’s oversight role and the issue of continuous cuts in the budget for DHA. The consequences of these budget cuts can be seen in corruption and the crisis of provision of services, and ability to provide protection to refugees fleeing to South Africa. On the NHI Bill, she said that various NGOs were in the process of making submissions on the NHI Bill, as in its current form it excludes refugees and migrants from the public health system. She further emphasised that there is a crisis in the lack of disaggregated data in the movement of people domestically and regionally – and that this is not made explicit in policy planning such as in the NHI Bill. There is well done research by organisations like ACMS which speaks to the problem of internal migration and how this is not taken into account in policy formulation, which results in overcrowding of schools and hospitals. There is a need in the region for more collaboration for proper data collection related to public health.

On the way in which detention is being used as a tool to manage migration, she indicated that LHR had won an important victory at the Constitutional Court in respect of the unconstitutionality of the detention provisions of the Immigration Act and Regulations. LHR’s monitoring of the implementation of that judgment has found that there is not respect for the judgment. She asked that the Committee address these gaps, through interventions such as training of magistrates, working with SAPS and immigration officials.

Ms Ekambaram recommended that the Committee invite the Socio-Economic Rights Institute (SERI) to present to the Committee, as a way to look at inclusive local economies including the informal economy, so that it is grown and protected as it is an important contributor to employment in South Africa. She also indicated that a memo had been sent to the previous Committee by organisations such as LHR, CoRMSA, Scalabrini, LRC and SALC, motivating for why South Africa should consider the SADC visa which is in line with the African Union’s call for free movement of people on the continent.

Discussion

The Chairperson said that some members of refugee communities wanted to leave South Africa and be resettled in another country, whereas others wanted to stay. This provided the picture of South Africa’s society. The flow of immigration or the free movement of people should be allowed on the basis of the rule of law. He reminded refugees and asylum-seekers that South Africa was a democratic country. No matter how they differed with South Africans, they would be given a platform to speak to Parliament and express their views and opinions. He further reminded them that in other countries, there was a likelihood of being killed if they differed. He stressed that it was through discussions and engagements that solutions could be found. The immigration and refugee issues were very complex, and could not be solved overnight.

Ms L Tito (EFF) sought clarity from Scalabrini on whether they had data on the skills of migrants, refugees and asylum-seekers. and what alternative measures there should be in the absence of a fully functional RRO.  

Mr A Roos (DA) referred to the African Continental Free Trade Agreement and the Southern African Development Community (SADC) free movement protocols, which should be implemented on the basis of trust. He stressed the rule of law in the promotion of cross-border movements. He asked CoRMSA to elaborate on what the government could do to improve social cohesion, and on the impact of the denial of access to the RRO of people in Western Cape. He asked Africa Unite which areas could be defined as xenophobic violence “hot spots,” and whether a family should be treated as one entity or individually.

Referring to the submission that migrants, refugees and asylum-seekers were being killed day in and day out, he asked the WCC to provide figures of those who had been killed since 2008. The South African Human Rights Commission and the UNHCR were trying to find a solution to the refugees’ sit-in in front of the office of UNHCR in Cape Town, and had offered the refugees and asylum-seekers temporary accommodation. Why were they not accepting such an offer? Why did they find this offer to be unreasonable? He had gone to monitor the events taking place outside the office of the UNHCR one night, and had found that refugees and asylum-seekers were pounding on doors and windows, and were vandalising the building. He described their behaviour as antagonism and resentment. He asked the WCC how they expected South Africa to respond when they were creating antagonism. Was xenophobic violence motivated by their creation of antagonism?

He said the Committee was concerned with the DHA’s expenditure on litigation. There was a feeling that the Department was spending money unnecessarily on fighting against immigration cases. He asked Scalabrini if it had data on cases filed against the DHA. What were the main issues of disagreement? Which areas could the Committee focus on when monitoring and evaluating whether the DHA was unnecessarily spending money on litigation?

Mr J McGluwa (DA) remarked that some of the presentations were disheartening, whereas others were insightful. Some presentations were not based on facts, and had no evidence to support their claims. The presenters should be taken to the DHA to understand how the Department was working or operating, and the challenges it was facing. He was of the view that there should be further engagements with NGOs or stakeholders, because they should have the same understanding of the challenges the DHA was facing in particular, and the country in general.

The presentations had highlighted a lot of denials by the DHA. Migrants, refugees and asylum-seekers were denied various services. These were issues that the 6th Parliament should look into, and deal with decisively. These issues ought to be solved. It was understandable that refugees and asylum-seekers should be documented. Documenting them was a must, and it should be made difficult for those who were not documented -- they should not be able to have access to government services.

Presenters had highlighted their concerns that the DHA had a challenge in considering an application for asylum within 180 days. This gave rise to instances where an asylum-seeker could be given an appointment to return to the RRO after a year, or even two years. This could not be right. The 180 days ought to be adhered to. The presenters were in agreement that RROs had been closed and that the Cape Town RRO was not operating. Which RROs were not operating, and which were not operating fully? He had visited the Cape Town RRO and found it operating. Why was Scalabrini stating that the Cape Town RRO was not functioning?

He remarked that presenters were in agreement that officials or politicians were inciting xenophobic violence, and asked the LHR whether they had filed a case against Mayor Herman Mashaba of the City of Johannesburg. What had they done to respond to his speech inciting xenophobia? Although there had been incidents of xenophobic violence, it could not be denied that there were also criminal elements.

Commenting on CoRMSA’s submission that there no adequate time had been provided to comment on Bills, he said that no one should be denied the opportunity to make inputs. If the public was given inadequate time to comment on a draft policy, the NGOs and other stakeholders could make a request for an extension of the timeframe.

Regarding inciting xenophobia, he commented that politicians who tried to garner votes at the expense of the lives of foreign nationals should be ashamed. The NGOs or concerned people should open cases against them. They should be held accountable. Migrants, refugees and asylum-seekers should be treated as human beings.

Mr M Lekota (COPE) was of the view that the Committee was not able to address the issues being raised by the NGOs. It was clear that they were not on the same page. A good engagement could ensue only if both the Members and the NGOs had the same information and shared the same understanding of the crisis caused by immigration. People had been advocating the removal of borders simply because the borders were colonial. He understood this part of colonialism, but the truth remained that there would be always nation states. These nation states were not created by Members of Parliament. Territorial boundaries had been there. The Organisation of African Unity (OAU) had taken a decision that the territorial boundaries should be respected. In that context, the constitution granted rights to citizens. South Africa’s constitution granted rights to South Africans. Equally, the constitution of Ghana granted rights to Ghanaians.

The United Nations (UN), which was established after World War II, had recognised the sovereignty of the nation states. Other countries that came into being after the establishment of UN were recognised by the UN, and had joined it. Three years after the establishment of the UN, the Universal Declaration of Human Rights (UDHR) was adopted and committed nation states to respect universal or basic human rights. In South Africa, respect for human rights had been campaigned for since 1912. In 1912, the campaign started with a view of having one country of South Africa for South Africans.

He was making these comments deliberately because he had been a Minister of Defence. As Minister, he had gone to Rwanda, Burundi, the Democratic Republic of Congo (DRC), and Sudan. At the time, he was trying to find out how South Africa should contribute to respect for human rights in these countries. If one went to other African countries, or to Sudan, one would find that refugees were isolated. They were located somewhere in refugee camps. In South Africa, they were not in refugee camps. On top of this, South Africa was a member state of UN. As a member state of the UN, South Africa contributed money to the UNHCR to assist refugees and asylum-seekers around the world. Refugees and asylum-seekers were assisted in the country.

However, he did not accept that all people who came to South Africa were seeking asylum. They were not. Refugees, who were registered as such, were presented to the UNHCR. It was incumbent on the UNHCR to assist them or to offer them humanitarian assistance. It was not the duty of South Africa to do so. For that reason, refugees could not be taken to hospitals. If refugees and asylum-seekers were to be taken to hospitals, hospitals would be overrun. As a result, there would be neither hospitals nor medication for citizens. To avoid this, the UNHCR should respond to the needs for basic services of refugees and asylum-seekers.

From this point of view, children of refugees should not be in Khayelitsha, competing with citizens for access to education, healthcare or employment. These refugee children and their parents should be in a refugee camps. He had heard refugees stating that their countries had assisted South Africans during the apartheid era, but reminded them that the South Africans who fled the country to seek asylum, had stayed in refugee camps. They had fought hard to come back to South Africa, and not to go somewhere else. This was important information for the NGOs to know.

Mr Lekota said that the problem was based on foreigners’ belief that citizens hated them. Foreigners thought South Africans did not want them in the country. Such thinking was wrong. Prior to 1994, foreigners could come into the country illegally. They came from Katanga (DRC), Tanzania, Malawi, Namibia, Mozambique, etc. Fellow Africans from different countries had been in the country for many decades. They worked illegally. Usually, they left when they had earned sufficient money.

He had also travelled, and for travelling to another country there were certain requirements to be met. For example, he had to state the reasons why he was going to that country and whether he had enough money to fend for himself during his stay. He had to indicate where he would stay and whether he had paid for accommodation. He also had a daughter who went to teach English in an Asian country. She had had to come back because the visa had expired. She had to renew her visa in order to continue with her work of teaching English. On the contrary, refugees or asylum-seekers were travelling without a visa. They came into South Africa without visas. Some women and children came into South Africa because their husbands had been killed, or because they were persecuted.

However, there were asylum seekers and work seekers. Asylum-seekers should be differentiated from work seekers. Work seekers were unwelcome unless they fell within the shortage of skills framework. Most migrants were not wanted. Some of them were undocumented. Some came into the country without any documents. Undocumented migrants were losing their lives and could not be identified. No one could tell where they had come from. Some foreign nationals ended up in South Africa as a result of human trafficking, while others were coming to the country with the intention of engaging in human trafficking or drug dealing. These foreigners destroyed South African society. The government did not have a choice but to act against them. These people could be hanged, but South Africa did not have the death penalty, although people of this country were calling for its return. The death penalty should be restored, because women and children were being killed day in and day out.

This country had a lot of problems of its own, and wanted to deal with them first. Owing to the high rate of crimes, soldiers were deployed in townships. There was a lot of crime taking place in the townships. There was xenophobia. South Africans were not xenophobic, and did not like xenophobic violence but, yes, foreigners were being killed. Xenophobic violence was a complex issue. South Africans could not be xenophobic, because its people were of mixed blood. People of mixed blood included former President De Klerk, former President Mandela, and Mr Sisulu. This was the main reason that the future of South Africa was founded on the non-racial principle.

South Africans should understand that they would not be rich by killing people or through committing crimes. On the other hand, the UNHCR should assist South Africa to deal with issues of refugees and asylum-seekers. They should be happy that human rights organisations were speaking on their behalf. He was also pleased to see that South Africans were part of human rights organisations defending the rights of migrants, refugees and asylum-seekers. He recalled that when he was imprisoned, human rights organisations were there to defend the rights of prisoners.

He commented that immigration would be always there, but there should be compliance with the law. Nothing would stop foreigners from coming to South Africa, as nothing would stop South Africans going to their countries. Visits would continue. Seeking asylum should be guided by principles. There was a UN document stating that if an individual crossed a number of countries, such individual could not be considered a refugee. An asylum-seeker should seek asylum in the first safe country he or she arrived in. People were coming from Egypt, Sudan, Libya, etc, and crossed many safe countries to seek asylum in South Africa. Others were coming from stable countries such as Malawi, Zambia, and Tanzania. Nothing was happening in these countries. Why should they be treated as asylum-seekers?

He finally said that there were foreigners who had come to Parliament to brief the Committee on why they wanted to leave South Africa. If they wanted to leave, there should be good reasons why they wanted to leave. No one was stopping them from leaving. They should go. The UNHCR should see if they should go or if they qualified to be assisted to leave. The question was where they should go. He expressed unhappiness about what the DHA was doing to frustrate refugees and asylum-seekers. Members should tell the DHA that if they continued to act in a way described by NGOs, the DHA would be destroying the image of nation.

Ms T Lengwase (ANC) sought clarity on whether NGOs had statistics of people who were denied access to basic education and healthcare, and who were involved in corruption. A report on cases of corruption should be developed and submitted to the Committee.

Mr D Moela (ANC) commented that the Mayors of Johannesburg and Ekhululeni had briefed the Committee on crimes committed by foreign nationals – including the hijacking of a building. Did the NGOs have statistics of crimes committed by foreign nationals?

The Chairperson said that it would be difficult for the Committee to deal with these issues. For viable solutions, there was a need for stakeholder engagement. A memorandum of understanding (MoU) should be developed by the DHA and stakeholders on the challenges, and how they should be addressed.

He reminded the NGOs that not everyone who came to South Africa was a refugee. Equally, it was not all undocumented migrants who were refugees. Foreign nationals had to be assessed in order to determine whether they were refugees. He read out the definition of the term refugee, as defined by the Refugees Act 130 of 1998. They should therefore adhere to the rule of law. He understood that the issue of Angolans was a special case. Many people who came to South Africa claiming to be refugees did not meet the requirements set out in the Refugees Act. NGOs should note that the UNHCR Commissioner had praised South Africa’s refugee law as a progressive. There were, however, challenges in implementing it. The DHA, together with stakeholders, should draft a MOU on the way forward. He urged Africa Unite to conduct research for the Committee.

Mr McGluwa asked whether cases of fraud and corruptions were reported to police.

NGO’s responses

Scalabrini

Ms Gandar said that not all provisions of section 3 of the Refugees Act had been read out. The Chairperson had read section 3(a) of the Refugees Act, but not sections 3(b) and 3(c). The definition of the term “refugee” was not restricted to a well-founded fear of political persecution, but extended to include events disturbing public order. All provisions under section 3 of the Refugees Act were important.

On the statistics of skilled migrants, refugees and asylum-seekers, she responded that Scalabrini had an Employment Access Programme and Foreign Professionals Desk, where Scalabrini assists clients to have their qualifications verified by the South African Qualifications Authority (SAQA). The Centre assists at least 100 per year and the data is captured.

Asylum-seekers were being given appointment slips instead of asylum-seekers’ permits. She stressed that appointment slips were unlawful. This had been ruled on by the court. She would share the ruling with the Committee.

Ms Gandar said that the RROs based in Cape Town and Port Elizabeth had been closed. Later, the Cape Town RRO had been reopened, but full services were not provided -- it was not extending the asylum-seeker permits that were issued by the Musina or Durban RROs. This left asylum-seekers in limbo and more vulnerable. They were becoming illegal, as they could not travel to Musina or Durban to validate their permits for another six months.

On the litigation involving the DHA, Ms Gandar said that according to Internal Question Papers from Parliament, the total amount of litigation against the DHA from 2013 to 2018 was 4 921 cases brought by refugees; 2 805 cases brought by asylum seekers. These cases were general litigation and it was not reported how many of these were opposed by the DHA. Ms Gandar indicated that there were better statistics in respect of High Court Review cases brought against the DHA. If an asylum seeker receives a final rejection, their only option to challenge that decision was to seek a judicial review before the High Court. The number of High Court reviews from 1 January 2013 to approximately June 2018, as per an Internal Question Paper, was 5 288 High Court Reviews. Ms Gandar indicated that if that number was analysed, 5 288 Reviews would have to go through internal processes in DHA, at the State Attorney and at the High Court. She indicated that if a DHA Legal Officer and a State Attorney and a High Court Judge spent one hour each per High Court Review, which would be a short amount of time for such a case, this would amount to 5 288 hours for each of the individuals listed. She further indicated that 5 288 hours amounts to 661 eight-hour work days, which is the equivalent of approximately 2 years and 9 months’ worth of time for each of those salaried positions in the DHA legal department, the Office of the State Attorney, and the High Court. She then provided that a High Court judge’s entry salary was close to R1.9 million per year; a DHA legal administration ranges from R330 000 o R818 000 per year according to job advertisements on the Public Administration website, and an assistant state attorney earned between R247 000 and R707 000 per year. She indicated that those cases were taking 2 years and 9 months’ worth of salaried time. Ms Gandar stated that Scalabrini believed High Court Reviews could be avoided if proper and quality decisions took place at first instance – at RSDO level. She further indicated that the number of RSDO’s employed across all the RROs in South Africa, according to a Parliamentary Reply, ranges but was about 121 RSDO’s across all offices. Ms Gandar indicated that this type of litigation was an example of frivolous expenditure and that ‘fruitless and wasteful expenditure’ according to the Public Finance Management Act was defined as ‘expenditure which was made in vain and would have been avoided had reasonable care been exercised’. Ms Gandar said that her question would be ‘is reasonable care being exercised at RSDO level initially and throughout the decision-making processes?’ She provided a specific recommendation for the Committee, was that the Parliamentary Reply she quoted indicates the DHA did not have a case management system. She stated that it was vital that there is a case management system, that the system reports the numbers of cases brought against the DHA as well as the outcome of those cases. She further highlighted the importance of evidence-based information and engagement.

Ms Gandar responded to Mr McGluwa’s question about RROs issuing appointment slips, by indicating that in the past week she had seen an individual from a refugee producing country who had approached the Port Elizabeth RRO last week and issued an appointment for 28 January 2021. This was despite the fact that even last week’s appointment was the result of an appointment issued to that individual in about March this year. Thus, the individual’s appointment keeps being pushed forward. She referred to CoRMSA and LHR to speak about various iterations of the appointment slip system at other RROs.

Ms Gandar said she did not agree with Mr Lekota’s argument that South Africa’s constitution was designed to protect the rights of citizens. The constitution granted rights to both citizens and non-citizens. A number of rights in the Bill of Rights were vested in everyone. On the death penalty, she explained that in Makwanyane case, the Constitutional Court -- based on the right to human dignity and the right to life – had ruled that the death penalty infringed on a number of fundamental rights protected by the constitution, in that there was no possibility of restoring the death penalty.

Ms Gandar reiterated that the DHA was greatly contributing to the illegal stay of asylum-seekers. The contribution stemmed from the decision taken in 2012 to close the RROs based inside the country and to require asylum-seekers to apply for extensions of their documents in Durban or Musina, depending on where the application for asylum was filed. The closure of the RROs had led to taking the DHA to court. It was the Supreme Court of Appeal that had ordered the reopening of the RROs in Cape Town and Port Elizabeth. The RRO in Port Elizabeth had remained closed, and the RRO in Cape Town did not serve asylum-seekers who applied for asylum after 2012 or those who applied for asylum at other RROs.

The truth was that asylum-seekers were poor and had no resources to facilitate their travelling every three months to go to Musina or Durban to extend their documents. They were becoming illegal overnight. In order to extend their documents, asylum-seekers had to go to the police for affidavits attesting why they would not be able to travel. The police station could take or serve only 20 asylum-seekers per day. This had become a fruitless exercise. There was a huge number of asylum-seekers whose documents had expired. Why should renewal of a permit be problematic?

Africa Unite

Ms Lesaoana responded that Africa Unite was advocating for a family to be treated as one unit, and no member of a family should be left out. There had been difficulty in joining members of a family who came to South Africa at different times. She identified provinces such as Gauteng, North West, Eastern Cape, KwaZulu-Natal and Gauteng as hot spots for xenophobic violence.

With regard to corruption, Africa Unite had not opened a case against DHA staff members. Cases of corruption were being reported by vulnerable refugees and asylum-seekers. For example, 1 600 fake marriages had been reported to Africa Unite. She believed that these fake marriages involved corrupt officials in order for them to be solemnised.

She objected to the view that violence against foreigners was committed by criminals, and stressed that top officials and politicians were integral to xenophobic violence and should be held accountable. Top officials and politicians were educated people who should understand the impact of their speeches – especially the messages that could be decoded from their speeches. Xenophobic utterances had been made by President Ramaphosa, Mayor Herman Mashaba, Minister Aaron Motsoaledi and the former Deputy Minister of Police, to name but a few.

She believed that social cohesion was very important, in addition to accountability. She objected to placing refugees and asylum-seekers in a refugee camp, and stressed that there would not be social cohesion if people were separated. There would not be social cohesion if refugees and asylum-seekers were not documented. Every activity they could engage in required their eligibility to stay, in order to avoid their alienation. Foreign nationals were teaching South Africans and were benefiting from them. She felt that the proposal made by Mr Lekota that refugees should be in refugee camps was intended to promote segregation.

WCC

Mr Balous welcomed the proposal of Mr Lekota that refugees and asylum-seekers should be given shelter by the UNHCR. He said that in 2008, more than 200 refugees had been killed. Foreign nationals had sought a safe haven in makeshifts near the oceans – but former Western Cape Premier, Ebrahim Rasool, had sent soldiers to chase stranded and desperate refugees and asylum-seekers from their shelters. Violence was a reality in South Africa. Refugees and asylum-seekers should be temporarily sheltered by the UNHCR while waiting for relocation somewhere else. The WCC would not accept that refugees and asylum-seekers would have to go to a shelter which was based in South Africa. The WCC would not succumb to the pressure of UNHCR and government.

He said that in Rwanda, genocide had started with people calling each other names. Here in South Africa, citizens were calling vulnerable non-citizens names. Very recently, the leader of the IFP had said that refugees should leave the country. All these problems were sufficient to indicate that there would be no improvement in the protection of refugees in the near future. Non-citizens, particularly economic migrants, refugees and asylum-seekers, were not being treated in accordance with human rights. Their rights were being assailed by the government and its citizens. It was clear that foreigners were living in a house that was leaking. And when it rained, foreigners were pushed into those corners where it was leaking. It was they who could feel the pain.

He disagreed with Africa Unite, which had stated that educating South African communities about the human rights of non-citizens would promote social cohesion, thereby decreasing xenophobic violence. He asked what kind of education they would be offered, if educated people like President Ramaphosa, Minister Motsoaledi and Mayor Mashaba could incite violence against foreign nationals. Xenophobic violence was not cause by lack of education or lack of understanding of the scope and ambit of human rights. Xenophobic violence was all about the spirit and ill-sentiment of someone. The ill-sentiment towards others led to xenophobic violence. It was someone’s reasons, morality and consciousness that would stop them from killing other human beings.

He also welcomed comments of Mr Lekota that there were UN protocols to be observed. The UN protocols also stated that minority groups should be protected. As a minority group, refugees and asylum-seekers should be protected. The reality was that they were not protected. This was evidenced by the fact that if a citizen told a foreigner that he would kill him, the citizen could do it without any fear of legal consequences. A foreigner would never see justice, as the government would never get interested in a case involving the killing of a foreigner. He agreed with Mr Lekota’s comment that UNHCR should assume its full responsibility and protect refugees and asylum-seekers. For that reason, the UNHCR should assist them to leave.

CoRMSA

Mr Sinthumule responded that the first thing to do in order to address xenophobic violence was to accept that it existed. When a person did not accept that he was suffering from a particular disease, he could not move to find the cure. He disagreed with the Mr Lekota’s comments that there was no xenophobia in South Africa and that violence was caused by criminal elements. If government accepted that a xenophobia epidemic existed, it should establish a programme focussing on human rights of vulnerable foreign nationals, and insist on the accountability of those who incite violence against foreign nationals or who engage in such violence.

On the question of statistics of children who were denied access to basic education, Mr Sinthumule responded that the Centre for Child Law had established data on the denials of access to basic services. For example, the Centre was running a programme to remind principals of schools that children of foreign nationals – whether documented or not – were entitled to have access to those schools.

LHR

Ms Bornman thanked Members for their inputs and comments. The LHR had been working since the apartheid era. It had defended the rights of those who were being imprisoned for dedicating their life to the liberation struggle. She said that immigration was a very complicated issue and that vulnerable foreign nationals were not only the refugees and asylum-seekers. There could be other foreign nationals who had come to seek a safe haven in South Africa due to natural disasters or climate change. She referred to the floods that took place in Mozambique and Zimbabwe, leaving behind devastating outcomes. People were left homeless. Did the government think of how it would respond to events such as these? These were people who also needed humanitarian intervention. She warned that whatever the government should decide to do, it should not strip people of their human rights.

There was exploitation of economic migrants, refugees and asylum-seekers in the labour sector. The government was against the employment of asylum-seekers, in that it had proposed the encampment of asylum-seekers in a 2017 White Paper on international migration. The government had a challenge in regularising the movement of refugees and economic migrants in a humane manner.

She said that foreigners did not come to South Africa because they wanted to benefit from service delivery. Rather, vulnerable foreign nationals were coming to South Africa on account of its good history on protecting human rights since 1994. In other African countries, people were persecuted on the basis of their political opinion, ethnicity or sexual orientation. For example, people who were persecuted on the basis of sexual orientation could not go to countries such as Zimbabwe, Malawi and Zambia, where they could be further persecuted. That was a reason why they could cross those countries into South Africa.

Ms Bornman was of the view that encampment stripped people of their human rights. It was expensive to run. It was like a prison. Most of problems were caused by the fact that migrants, refugees and asylum-seekers were not documented. If they were documented, all these problems could be addressed. They could not be illegal. They would not sit with expired or invalid documents. With documents, they could have access to certain services. They could be employed or self-employed. She welcomed the stance of the Minister of Home Affairs that there would be engagement with all stakeholders. The former Deputy Minister of Home Affairs, Ms Fatima Chohan, had objected to such engagements. Through these engagements, an MOU could be drafted on a way forward. The government ought to strive to give value to the dignity of vulnerable non-citizens, and to protect their human rights as espoused by the constitution.

Mr Roos commented that it was unfortunate that his comments had been twisted by Mr Balous. He welcomed the social cohesion programme and commented that much efforts should be invested in it. He also agreed that there might be a flow of immigration cause by climate change. Climate change had hit South Africa too, because it had been experiencing drought.

The Chairperson said it had been an important meeting, as it had been looking for solutions for the people of this country and the people of Africa in terms of immigration. He stressed that the signed African Continental Free Trade Agreement should assist in finding solutions to the free movement of people, which had to be controlled and managed in terms of domestic law. Solutions to challenges caused by immigration should be found through regular engagements with NGOs and other stakeholders. Therefore, there was a need to regularise the engagement. The regulations of engagement should clearly state on whether such engagement should take place in each and every quarter and how resolutions taken should be implemented.

There had been many years since the people of this country had fought for its liberation from the chains of apartheid. They did understand the contribution of other African communities for the realisation of the liberation of nation. People should therefore respect each other. They ought to live together in harmony. No society could live in isolation. He was of the view that the people of South Africa were not xenophobic. They were welcoming.

He welcomed the comments of Mr Lekota, where he had indicated that South Africans had contributed to the recognition of human rights. However, South Africa was facing challenges in promoting human rights at home. Nevertheless, it was seeking to better the lives of South Africans and the people of Africa. In doing so, it extended the hospitality to those who were being persecuted by their own governments.

He called on NGOs and the Committee to work together in the areas of monitoring and evaluating the DHA. The DHA should not contribute to the illegal stay of migrants, refugees and asylum-seekers. It was neglecting refugees and asylum-seekers, and consequently it was being taken to court. It was spending a lot of money on litigation. The DHA should be invited to brief the Committee on litigation.

He said that the recommendations made by the NGOs would be taken seriously, and would be considered for the benefit the people of the country. The engagement had been fruitful, and the recommendations would be communicated to Parliament.

The meeting was adjourned.