birth registration south africa

Birth Registration in South Africa

Keep up to date with our Teach-Yourself Series – condensed articles on current and planned changes in South African migration law. Our articles and infographics aim to spread awareness on South Africa’s migration landscape, and our standpoints on the issue. This is a joint initiative between The Scalabrini Centre of Cape Town and Sonke Gender Justice. The first four topics in this series are: the Refugee Amendment Act, the White Paper on International Migration, birth registration and health care access.

For further information about the issues discussed in the series, contact lotte@scalabrini.org.za or you can visit www.genderjustice.org.za.

This article used several useful resources published by Lawyers for Human Rights, including the online handbook on Preventing Statelessness, and a pamphlet on Childhood Statelessness. You can watch a video about birth registration here.

  1. What is birth registration?

As we will discover in this article, it is set in international law that every child – wherever they are born, and whoever they are born to – must have their birth registered. This means that the birth is officially recorded by a branch of a government or state. In South Africa, children who qualify for citizenship, or children of permanent residents and refugees, are recorded in the National Population Register when their birth is registered. (Children born to South African citizens outside of South Africa are also registered in the National Population Register.) This is a national database of such children born within South Africa.

Normally, this is completed upon a child’s birth, and takes the form of a birth certificate that is usually entered into a form of population register. At a minimum, a birth certificate sets out the child’s legal name, their date of birth and their place of birth. A birth certificate can prevent a child from becoming ‘stateless’ – a situation in which an individual has no recognised nationality at all.

Some parents struggle to have their child’s birth registered. In South Africa, this can cause huge problems, creating barriers to accessing services, basic child and human rights, education and health service. Section 28 of the Constitution of South Africa, which requires that the ‘best interests’ of the child to be the priority in all decisions and matters concerning the child. The South African courts have ruled, many times, that it is in the best interest of the child to have a birth certificate and access to a nationality. However, as we shall see, various regulations and practices in South Africa are resulting in hundreds of children existing without birth certificates in South Africa today.

  1. What does a birth certificate look like in South Africa?

In South Africa, a ‘Notice of Birth’ is issued when a child is born and certain documents (such as a medical witness to the birth) are provided. This is a prerequisite to being issued a birth certificate at the Department of Home Affairs. Recently, however, the Department of Home Affairs has set up ‘offices’ at major hospitals and clinics where birth certificates can be issued directly.

Previously, the South African government issued abridged (short) and unabridged (long) birth certificates. An Abridged/short birth certificate reflects only the individual’s date of birth, place of birth, name and identity number, if applicable. An unabridged/long birth certificate (which is the only type that is issued by the South African government since 2013) also provides the mother’s and father’s details – including their names, dates of birth and nationalities. The unabridged birth certificate can prove a claim to a child’s nationality.

As of March 2013, the Department of Home Affairs (the body responsible for issuing birth certificates in South Africa) stopped issuing abridged, or short birth certificates. Only unabridged birth certificates are issued since this date.

Children who are born to two non-South Africans, and who do not qualify for citizenship, are entitled to a birth certificate, as per the Births and Deaths Registration Act (BDRA). However, in these cases, the children are issued birth certificates that do not include an ID number and the child is not entered into the National Population Register.

  1. Why us birth registration so important?

In South Africa, a birth certificate is vital to access the following rights:1

  • A right to a name and nationality, as set out at Section 28 of the Constitution. Without a birth certificate there is no way to prove a child’s nationality,
  • A right to basic education, as set out in South Africa’s Bill of Rights. Schools are becoming increasingly strict around enrolling students who cannot provide documentation,
  • A right to healthcare, as set out in South Africa’s Bill of Rights. Healthcare – especially for children over the age of seven, becomes increasingly difficult to access if the child does not have a birth certificate.
  • Access to other services such as child protection mechanisms, and other state services.

Children’s rights are specifically applicable to those persons under the age of eighteen. Without a birth certificate, it is not possible to prove a child’s age (unless an age assessment is completed by a medical practitioner) and therefore children near the age of eighteen might well be treated as adults. This is especially problematic in cases of detention and deportation.

The lack of a birth certificate has negative effects on many areas of a child’s life, aside from those stated above. A person’s fundamental rights to equality, human dignity, freedom and security of person, and fair labor practices1 are all compromised when that individual has no documentary proof of where, when and to whom they were born.

Aside from this, birth registration is now required as a prerequisite to access an ID – it is at birth registration that an ID number is allocated to an individual and he or she is added to the National Population Register. Children who should be issued and ID number – such as those children born to South African citizens – will face barriers to accessing ID documentation later in life, and will struggle to complete

You can watch a video about birth registration here.

NOTE:

  1. These rights pertain to Sections 9, 10, 11, 12 and 23 of the Constitution, accordingly.

 

  1. What does international law say about birth registration?

International law is very clear about a child’s right to birth registration. Here are some of the international laws that speak to this issue – of which South Africa is a signatory, meaning that it must uphold their provisions and not take actions against their goals and principles.

1948 Universal Declaration on Human Rights

This is considered to be the foundation for international human rights law. At Article 15, it states that everyone has the right to nationality, and that no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

1989 United Nations Convention on the Rights of the Child

Article 7 states that a child “shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality.”

1966 International Covenant on Civil and Political Rights

Article 24(1) states that ‘every child’ has the right to the protection which his status as a minor grant him ‘without any discrimination as to … national or social origin.’

1999 African Charter on the Rights and Welfare of the Child

Article 6 confirms that ‘Every child shall have the right from his birth to a name. Every child shall be registered immediately after birth’ and that ‘Every child has the right to acquire a nationality.’

Lawyers for Human Rights’ book on Preventing Statelessness contains a useful section on International law, should you want to read further.

  

  1. What South African laws exist around birth registration in South Africa?

There are several laws in South Africa which confirm a child’s right to a birth certificate. As we will see in Section 6 of this article, the reality is quite different.

The Constitution of South Africa: The Bill of Rights

A number of the rights in the Bill of Rights apply to both citizens and non-citizens in South Africa. (For example, the right to vote is reserved for South African citizens only.)

Section 28 of the Constitution of South Africa states that ‘every child has the right to a name and a nationality from birth’. In South Africa, these rights can only be brought to life through the possession of a birth certificate.

The Bill of Rights confirms other fundamental rights that can only be truly accessed with valid documentation (such as a birth certificate) that proves the person’s nationality, and therefore their legal and administrative existence in South Africa. For example, the right to equality (section 9), the right to freedom of movement (section 21), and the right to human dignity (section 10) are all affected if a child or an adult has no document to prove their nationality.

The Births and Deaths Registration Act (1992)

The Births and Deaths Registration Act provides the processes for the birth registration of all children born within South Africa – whether they are born to South African or foreign parents. Lawyers for Human Rights explains that, under this Act, “children born in South Africa who do not qualify for citizenship are entitled to a birth certificate under the Births and Deaths Registration Act. However, they are issued birth certificates that do not include an ID number and the child is not entered into the National Population Register.”

The Act requires that births should be registered within thirty days of birth. (If this is not completed, the a ‘Late Registration of Birth’ process has to be followed – see question 7).

The Regulations on the Registration of Births and Deaths (2014)

The Regulations of the Births and Deaths Registration Act sets out the rules, forms and procedures around applying for a birth certificate in South Africa. These regulations were amended in 2014, and new draft regulations are being considered in parliament. The Regulations of 2014 confirmed that hand-written birth certificates would no longer be issued, and that biometric details would be recorded to register births.

Some aspects of these Regulations are:

  • Importantly, the Regulations require that both the parents of a child must have a valid passport and permit (visa) or a valid asylum seeker permit or refugee status to register the birth of their child. This has had hugely detrimental effects on children born to one or two non-South African parents, as we see in Section 8 of this article. In a 2018 court case, Naki and Others v Director General: Department of Home Affairs and Another, the court ordered that the Birth and Deaths Registration Act must be read to mean that parents must show valid documentation to register their child’s birth ‘where possible’. The Naki judgement also allows single fathers to register births of their children.
  • Processes for the Late Registration of a birth. These are split into two categories: the birth registration of children who are registered after 30 days, but before 1 year and, children who are registered after 1 year. Several documents are required for a Late Registration of birth (see Section 6 of this article).
  • The Regulations also set out the processes to register a child born out of wedlock (for more information on this, see page 76-78 of the preventing statelessness handbook), for children born outside of a hospital or clinic (see page 79 of the preventing statelessness handbook), and the registration of a birth by a single father, among other scenarios.

The Citizenship Act of South Africa (2010)

The Citizenship Act of South Africa does not speak specifically to birth registration, but sets out who is able to gain – or apply for – South African citizenship. Children born to South African citizens are, automatically, South African citizens. As of 2013, the amended Citizenship Act came into force. Section 4 of the amended Citizenship Act now states that children born to non-South African parents can apply for South African citizenship ‘upon becoming a major’ (i.e. turning eighteen years of age) if they have lived in South Africa from their date of birth to the date of turning eighteen and if their birth has been registered – i.e., if they have been issued a birth certificate as per the Births and Deaths Registration Act. This is an example of how vital a birth certificate is to accessing citizenship.

Although this provision exists, it has not yet been applied, as the Department of Home Affairs has indicated that it is not applying it to children born before the amendment of 2010. This was subject to litigation, in which the Supreme Court of South Africa confirmed that it should indeed apply to children born before 2010. This is yet to be applied, and the Legal Resources Centre will provide updates.

 

  1. What is late registration of birth?

In South Africa, any birth that is not registered after thirty days is considered a Late Registration of Birth. As stated in section 2 of this article, the Department of Home Affairs has set up ‘offices’ at major hospitals and clinics where birth certificates can be issued directly. However, this is not always accessible to parents – especially those parents who are not South African. A Notice of Birth is required to gain a birth certificate, and to be issued a Notice of Birth, valid documentation must be held by both parents. This has resulted in many children not being issued a birth certificate in South Africa.

There are two categories of Late Registration of Birth applications: children who are registered after 30 days, but before 1 year and, children who are registered after 1 year. The requirements for a Late Registration of Birth differ depending on whether a child was born to South African parents, permanent residents, refugees, or other non-nationals.

If you are planning to apply for a Late Registration of Birth, we recommend that you look at the Regulations and contact your local Department of Home Affairs office to find out more. If you need further information, see Section 8, below, for people to contact.

The minimum requirements for a Late Registration of birth are listed below:

  • A proof of birth, completed by a medical practitioner who attended to the birth of examined the mother after birth
  • An affidavit by a South African citizen who witnessed the birth
  • Biometrics of the child
  • Fingerprints of the parents or adoptive parents
  • Certified copies of the parents’ ID documents (and, in cases where one or both parents are non-South African, certified copies of valid passports, visas, or asylum documents are required)
  • Where applicable, a marriage certificate of the parents
  • Where applicable, a death certificate of any deceased parent
  • Where applicable, a certified copy of the ID document of the next-of-kin
  • Proof of payment of a fee.

In some cases, a panel will interview and discuss certain late registration of birth applications. In some cases, where one parent is a non-national and unmarried, Home Affairs can request a DNA test.

(Although, the Naki and Others v Director General: Department of Home Affairs and Another Naki judgement, as mentioned in Question 5, also found that, even if you cannot provide all these documents, your application for Late Registration for Birth, your application must still be accepted and considered.)

If you are planning to apply for a Late Registration of Birth, we recommend that you look at the Regulations and contact your local Department of Home Affairs office to find out more. If you need further information, see Section 8, below, for people to contact.

  

  1. What are the barriers to registering births of non-national children in South Africa? 

There are several barriers to children being issued birth certificates in South Africa – and due to the regulations that exist, a growing number of children are living without any proof of birth. This is not in the best interests of the child, nor is it in the interests of the South African state, in that any state wishes to document the number of people born within its borders. It is impossible to quantify how many children do not have birth certificates in South Africa. A study found that of 108 foreign children in care, half did not have birth certificates.

This situation has prompted criticism from UN Committee on the Rights of the Child, the African committee of experts on the right of the child and the UN Human Rights council on South Africa’s violations of international law on the child’s right to birth registration and a legal identity.

Both parents need valid documentation to register their baby

In South Africa, the Regulations on the Registration of Births and Deaths require both parents to hold a valid passport and permit (visa) or a valid asylum or refugee document. This means that the birth registration of children born to one or both parents who do not hold current legal stay in South Africa is impossible. This also affects South Africans who do not hold an ID book or have blocked IDs.

Whilst it might seem like a logical requirement of foreigners in South Africa, ensuring valid documentation in South Africa can be complex and, sometimes, impossible. For example, the ongoing closure of the Cape Town Refugee Reception Office has forced asylum seekers into travelling long distances to remain documented. Long queues, denied access and corruption exasperate the difficulties around extending permits. In a 2018 court case, Naki and Others v Director General: Department of Home Affairs and Another, the court found the requirement of parents to show valid documentation in order to register their births to be unconstitutional. The court ordered that these Regulations be read to mean that parents must show valid documentation ‘where possible’. The court confirmed that that a child’s right to birth registration should not be dependent on the documents that their parents do or do not have.

Thirty days requirement

In South Africa, births must be registered within thirty days. Late registration of birth can be complex, especially for those without easy access to offices or the hospital where the birth took place. As explained in Section 6 of this article, several documents are required for a Late Registration of Birth. Those living in rural areas with little or no income may struggle to gather such documentation and travel to government offices and hospitals.

Recent developments

In 2018, the Department of Home Affairs published its proposed new regulations to the Births and Deaths Registration Act. Instead of removing “requirements that may have punitive or discriminatory impacts on certain groups of children”, as recommended by the UN Committee on the Rights of the Child and as ordered by the court in the Naki case, the proposed regulations lower the standard further by removing birth registration for foreign children entirely.

The Regulations are calling for the discontinuation of the issuing of birth certificates to foreign children. The new regulations propose that foreign children be issued with a mere “confirmation of birth” which is “not a birth certificate”, according to the new form. This puts into question those children’s access to their most basic rights – and the ability to claim citizenship.

In our submissions to the South African government and press statements on the issue, we urged the Department of Home Affairs not to pursue this amendment. This issue was covered in the South African media. We are awaiting the finalization of these Regulations, and hope to see our submissions implemented.

 

  1. I have more questions. Who can I ask?

There are several organisations working on this issue. Here are the contact details of three organisations:

 

Detention and Deportation in South Africa

Keep up to date with our Teach-Yourself Series – condensed articles on migration issues in South Africa. Our articles and infographics aim to spread awareness on South Africa’s migration landscape, and our standpoints on the issue. This is a joint initiative between The Scalabrini Centre of Cape Town and Sonke Gender Justice. Other articles in this series includes: the Refugee Amendment Act, the White Paper on International Migration, health care access among others.

migrant and refugee access to healthcare

Migrant and Refugee Access to Public Healthcare in South Africa

Keep up to date with our Teach-Yourself Series – condensed articles on migration issues in South Africa. Our articles and infographics aim to spread awareness on South Africa’s migration landscape, and our standpoints on the issue. This is a joint initiative between The Scalabrini Centre of Cape Town and Sonke Gender Justice and Lawyers for Human Rights. The first four topics in this series are: the Refugee Amendment Act, the White Paper on International Migration, birth registration and health care access.

  1. Introduction

The rights of migrants and refugees to access the South African healthcare system is a complex matter. Laws and policies clash, and medical staff are left confused – especially as implementation of these laws differs depending on the staff or the clinic that you come into contact with. Meanwhile, the South African healthcare system struggles, in some areas, to provide sufficient medical care to any person, regardless of their nationality or status.

  1. How is the South African healthcare system structured?

In South Africa, the public healthcare system is structured in different levels:

  • Clinics treat common health needs, known as ‘primary health care’. Clinics refer patients to hospitals when a patient needs further treatment. Clinics are run by specially trained primary health care nurses. There are different types of clinics such as mobile and satellite clinics.
  • Community Health Centres are larger clinics and they usually have doctors as well as nurses.
  • Hospitals are for surgery, emergency treatment and serious illness that cannot be treated at the Clinic. Clinics and doctors refer patients to hospitals: individuals can only present themselves without a referral if it is an emergency.
  1. What does the law say about migrants and refugees accessing healthcare in South Africa?

There are different national laws and policies in South Africa that map out who is able to access health care, and who must pay for these services. The Johannesburg Migrant Health Forum has developed a useful, printable poster on this topic to help you navigate your rights.

Constitution of South Africa

The rights set out in the Constitution of South Africa provide for all people within South Africa, regardless of their nationality or legal status. This fact has been confirmed by South African courts. The Constitution states that:

  • everyone has the right to have access to health care services, and
  • ‘no one’ may be refused emergency medical treatment.1

The National Health Act

The National Health Act confirms that:

  • All persons in South Africa can access primary health care at clinics and community health centres.2
  • All pregnant or breastfeeding women and children under the age of six are entitled to health care services at any level.3

The Refugees Act of South Africa

The Refugees Act sets out rights for asylum-seekers and refugees in South Africa. It states that:

  • Refugees in South Africa have the same right to access healthcare as South African citizens.4 This right is widely interpreted to include asylum-seekers, as well.

Department of Health 2007 Circular

This circular confirmed that:

  • Refugees and asylum seekers, with or without permits, can access the same basic health care services as South African citizens (which means it is free at point of use, but can be charged thereafter), and
  • Refugees and asylum seekers, with or without permits, can access Antiretroviral Treatment in cases of HIV.

This does not mean that all services are free. Primary healthcare services are provided free of charge, but higher levels of care are subject to a fee. In these cases, refugees and asylum seekers are subject to a means-test, which calculates the fee depending on the patient’s income. This is the same test that is applied to South African citizens.

A note on the Immigration Act

As we’ve seen, the Constitution, the National Health Act and the Refugees Act spell out refugees and migrants’ rights to access health care. The Immigration Act is quite different, however. It states that staff at clinics and hospitals must find out the legal status of patients before providing care (except in an emergency).

The Immigration Act goes further to say that hospitals and clinics (along with other state institutions) ‘shall report to the Director-General any illegal foreigner’ or anyone whose status is not clear.5 However, this can only be enacted if this does not affect the patients’ rights that are set out in the laws that we have listed above – the Constitution, National Health Act and Refugees Act.

In our opinion, it is not justifiable to expect nurses and doctors to report people they suspect as ‘illegal foreigners’ to the Department of Home Affairs. This aspect of the Immigration Act is at odds with other, overarching laws in South Africa. It is also at odds with a widely-held international opinion that views healthcare facilities as ‘safe spaces’ – a message promoted by organisations such as Medicins Sans Frontieres.

  1. Who pays what at clinics and hospitals?

The Uniform Patient Fee Schedule sets out who must pay for certain services at a South African health facility, which is explained in the Classification of Patients for the Determination of Fees. Note that fees are not payable for “free services”.6

In short, the following non-nationals should be means-tested (in the same way as South African citizens) at the hospital:

  • Non-South Africans who have permanent or temporary residency in a passport, and
  • Anyone from the SADC region who is undocumented.7

The hospital looks at what they earn and decides what fee they should pay. Remember (as we stated above) that refugees and asylum seekers are subject to the same test; the hospital decides what level of fee they must pay depending on their income.

It means that the following people will have to pay full fees at the healthcare facility, and cannot access a means-test:

  • Undocumented people from outside the SADC region,
  • people on a tourist/visitor’s visa.
  1. What about accessing specialist treatment, such as kidney dialysis? 

In short, this depends on the resources of the South African healthcare system. For specialized care, patients must be placed in a system that ‘queues’ them depending on their medical needs. In this system, refugees, asylum seekers and permanent residents must be treated the same as South African citizens.

The South African healthcare system struggles to provide specialist medical care to all those that need it – especially procedures such as kidney dialysis, or complex cancer treatments. This is due to a lack of resources and other issues. Both non-South Africans and South Africans are affected by this.

When it comes to providing these specialized services, the South African healthcare system must apply a principle called ‘progressive realization’. This the idea that the state must provide as much as it can, within the limitations that exist. They must also make an effort to improve the realization of socio-economic rights for everyone in South Africa. You can read more about this here.

This issue has been explored in South African court cases. The famous Soobramoney case (1997) found that, while the state must always provide everyone with emergency medical treatment, this does not include ‘chronic illnesses for the purpose of prolonging life’.8 The provision of this type of specialist care (such as dialysis) should be administered by hospitals to their best ability.

Patients must be placed in a system that ‘queues’ them depending on their medical needs. In this system, refugees, asylum seekers and permanent residents must be treated the same as South African citizens. There have been cases in which refugees were not provided with specialist services due to their ‘nationality’. If this treatment was denied solely because of the patient’s nationality, it is not constitutional.

  1. What about organ transplants?

As we have seen, specialist treatment must be provided according to the resources of the hospital. Refugees and asylum-seekers will be assessed in the same way as South African citizens – depending on their medical need and the resources available. However, for organ transplants, the National Health Act states that ‘an organ may not be transplanted into a person who is not a South African citizen or a permanent resident of the Republic without the Minister’s authorisation in writing’.9 Those who are not South Africans or permanent residents who are denied organ transplants would have to challenge this in court, or access the transplant at a private hospital.

  1. What about accessing treatment for HIV or TB?

Everyone in South Africa, regardless of their nationality or documentation status, has the right to access treatment for HIV (Anti-Retroviral Treatment) and TB. The Department of Health 2007 Circular confirms this.

  1. What about accessing private hospitals?

If a patient is able to afford private medical fees, they can be attended to by a private hospital or clinic, regardless of documentation.

  1. The reality of accessing healthcare in South Africa

It is clear that non-South Africans have several rights to access healthcare in South Africa. But in reality, things are different. There are several angles to think about.

Some migrants and refugees are denied access to healthcare simply because they are foreign.

There have been several instances of migrants and refugees being denied treatment solely based on their nationality. This is known as ‘medical xenophobia’. See Section 12 for a list of organisations to contact should you be denied medical treatment because of your nationality or status in South Africa.

Migrants or refugees being denied treatment is not always due to “medical xenophobia”.

However not all instances of poor treatment are ‘medical xenophobia’. For it to be xenophobic, medical treatment has to be wrongfully denied on the grounds of someone’s nationality or legal stay. There are other grounds that medical care might be wrongly denied. The healthcare system in South Africa is found to be in an ‘advanced state of disrepair in large parts of the country’. Staff can be highly stressed in such environments, and South Africans also face discrimination in accessing medical care.

The laws about non-South Africans’ access to healthcare are not consistent and create confusing situations for medical staff. People working in hospitals are given unclear guidance on who can be treated. This is not helped by the fact that the Department of Health has published circulars or memos which confuse medical staff about migrants’ and refugees’ rights to access health care. Remember, the laws explained in section X override circulations, policies and memos. 

  1. How do we respond to inflammatory comments about ‘foreigners draining the healthcare system?’

The issue of non-South Africans accessing healthcare has also been the subject of controversial comments made by leaders and politicians. Several academics and organizations have condemned this. In summary, the main points to remember are:

  • When dealing claims that ‘foreigners burden the healthcare system’, it is important to remember that, in South Africa, only 3% of the population are foreign-born, and the number of migrants and refugees using the South African healthcare system is most likely in line with this percentage.
  • Furthermore, research has found that the majority of migrants in the Southern African Development Community (SADC) are not moving in search of healthcare, but are typically healthy, as they need to be in good health to travel. This what is called the ‘healthy migrant effect’.
  • Non-South Africans pay for their healthcare services just as South Africans do. Non-South Africans are either subject to the same means-test hospital fees, or they are subject to the highest fees (if undocumented and not from SADC).
  • The problem is not migrants’ use of the healthcare system; it is regarding the governmental planning of budgets with migration in mind. Internal migration (i.e. people moving within the country of their birth) accounts for much more than cross-border migration in SADC. Internal mobility is not taken into account when planning healthcare allocation. Furthermore, some budget and fiscal planning is based on outdated population Updated population statistics and research must be used when planning such services.
  1. What is needed to improve the situation?

As mentioned, the South African public healthcare system is struggling to address the nation’s needs. Many people struggle with access, South African and non-South African alike. Groups of the population, such as people living in rural areas, will face specific challenges. Similarly, there are unique and specific challenges that are faced by non-nationals, which are mostly linked to language and documentation. There are some actions which can assist in clarifying this complex matter:

  • There is a deep need for evidence-informed policy processes and frameworks. Despite being a region that witnesses such high levels of migration, these movements are not commonly taken into consideration when developing health responses – including for treatment and prevention of communicable diseases.
  • There has been little case-law (legal cases) on the issue of migrants and refugees access to health. The laws, policies and practises around this issue are very unclear. It would be beneficial to receive legal clarification on such issues.
  • Governmental planning of healthcare budgets and resource allocation must take into consideration correct predictions of both cross-border and internal migration patterns in South Africa, using current population data.
  • The healthcare system needs to be more responsive and reactive to migration: South Africa would benefit from migration-aware and mobility-competent healthcare systems, that facilitate movement within the country (including within cities) and between countries in SADC.
  • We advocate for increased awareness about migrants’ health rights – training on migration, mobility, health and development for all levels of staff in the Department of Health, including frontline staff, healthcare providers, facility managers, district and provincial health co-ordinators, and within the national department, would be beneficial. As one expert explains, ’understanding of migration is poor within sectors responsible for developing appropriate responses; negative, unsupported assumptions relating to the prevalence of cross-border migration, the spread of disease, and the burden on receiving health systems prevail.”
  • We advocate for the printing and distribution of uniform and correct classification of non-nationals when being means tested for co-payment for healthcare, and the uniform implementation of national monitoring of the correct implementation of existing legislation within health facilities.
  • We advocate for those who are denied rightful access to health to lodge the matter with the Office of Health Ombud or to contact one of the organisations below for advice.
  1. I have more questions. Who can I ask?

 You can contact one of the following organizations for further questions and advice.

 

refugee amendment act

Refugee Amendment Act

Keep up to date with our Teach-Yourself Series – condensed articles on migration issues in South Africa. Our articles and infographics aim to spread awareness on South Africa’s migration landscape, and our standpoints on the issue. This is a joint initiative between The Scalabrini Centre of Cape Town and Sonke Gender Justice and Lawyers for Human Rights. The first four topics in this series are: the Refugee Amendment Act, the White Paper on International Migration, birth registration and health care access.

Introduction

The Refugees Amendment Act, which was signed into law on 14 December 2017, can only be implemented once the Draft Regulations are finalised and published in the Government Gazette. At this time, it is still unclear when the Amendment Act will go into force – if at all.

As with any law in South Africa, public involvement is part of the process. The Advocacy Programme at the Scalabrini Centre of Cape Town has provided the South African government with submissions on the Refugee Amendment Bill and comments on the Draft Regulations to the Refugees Amendment Act. In short, we are concerned that, by creating fundamental changes, this Act would infringe on the constitutional rights of asylum seekers and refugees in South Africa.

The Refugees Amendment Act is being enacted at a time of change in South African migration policy. the White Paper on International Migration for South Africa sets out a general blueprint for future migration policies, plans to add severe restrictions the refugee system (read more about it here). In this way, the Refugee Amendment Act seems to be ‘laying the groundwork’ for such changes.

  1. Contact Us

Do you have further questions on the White Paper on International Migration? Please visit www.genderjustice.org.zawww.scalabrini.org.za, or contact lotte@scalabrini.org.za and get in touch!

  1. Permanent Residency

The Refugees Amendment Act would lengthen the amount of time a refugee has resided in the country before being allowed to apply for certification to apply for permanent residence from the current five years to ten years. The UNHCR recommends that the period of time before recognising a permanent status should be five years. In our comments, we recommended that the time period remain at five years, especially considering the protracted determination process which means many remain on asylum temporary permits for many years, in order to qualify for application to permanent residency.

  1. Changes to the Refugee Appeal Board

 The fact that the Refugee Appeal Board is severely over-stretched and under-resourced is well documented, and has resulted in asylum seekers waiting for several years for hearings and outcomes. The Refugees Amendment Act would create the Refugee Appeals Authority, which would allow for one member to take a decision (rather than the current quorum) and for more flexible appointments. Scalabrini’s submissions agreed with some of the proposed improvements to the appeals procedure, and suggested an amnesty project to allow the Refugee Appeal Board to clear the huge backlog that they currently face.

  1. Cessation of refugee status

The Refugees Amendment Act would, if implemented, expand the reasons under which a refugee status could be withdrawn. The Act, read with the Draft Regulations, propose a list of actions that would result in the withdrawal of refugee status – including ‘seeking consular services assistance with documentation.’ In Scalabrini’s submissions and comments, concern is raised around the fact that asylum seekers are required, by the Department of Home Affairs, to produce documentation such as marriage certificates – which would require a visit to their consulate, and would risk them having their status withdrawn. The Act would allow the Minister of Home Affairs to announce a cessation upon an entire category of refugees (or an individual), which we highlight would bypass the checks and balances currently attached to cessations

  1. Exclusion from refugee status

If implemented, the Refugees Amendment Act would expand the reasons for which an asylum seeker could be excluded from refugee status. This would include the committing of a Schedule 2 crime, entering illegally into South Africa, or an offence related to fraudulent documentation. It would also include those who are fugitives from justice in countries ‘where the rule of law is upheld by a recognised judiciary’, and those who do not apply for asylum within five days of entering South Africa. These proposed changes do not adhere to international refugee law, which clearly outlines that refugees should not be penalised for irregular entry into South Africa. UNHCR Guidelines further clarify that ‘the proportionality of the gravity of the offence in question should be weighed against the consequences of exclusion for the individual concerned’.

  1. Abandoning asylum claims

Under the Refugees Amendment Act, an asylum claim will be considered ‘abandoned’ if an asylum seeker does not attend a Refugee Reception Office in the month after the expiry of their asylum permit (unless they have a ‘compelling reason’). In our experience, the expired permit process has been fraught with difficulty for asylum seekers for years and pushes individuals into undocumented statuses. Entering Refugee Reception Offices is no easy task; asylum seekers have to visit Refugee Reception Offices several times before getting documented. For these reasons, many asylum seekers would have their claim deemed ‘abandoned’ – which, in our opinion, places administrative matters over protection and the principle of non-refoulement and is in contradiction to South African case-law which confirms that asylum applications cannot be denied on grounds of delay and that asylum applicants are, even prior to applying, protected by the Refugees Act. Scalabrini’s submissions suggested twelve months given the practical realities as a more realistic period before considering an asylum claim abandoned.

  1. Applying for asylum

The Refugees Amendment Act requires an asylum seeker to report to a Refugee Reception Office no later than five days after arriving in South Africa – or they can be excluded from refugee status. Furthermore, those who do not have an ‘asylum transit visa’ will be interviewed by an immigration officer to determine whether they have ‘valid reasons’ for not holding this transit visa. In the daily work of Scalabrini, asylum applicants often report difficulties in entering a Refugee Reception Office and applying for asylum. Five days to apply for asylum is not realistic – and we expressed concern in the submissions that denying someone an application to asylum simply because they apply on the sixth day is not in line with international refugee law. Given the current backlogs and protracted adjudication processes, this provision could create significant burdens for asylum seekers – and extra layers of administration for the Department of Home Affairs.

Under the Refugees Amendment Act asylum seekers will have to declare all existing dependents family upon their first application in order to have them documented in their asylum file. For those fleeing conflicts in stressful conditions, and with limited English, ensuring all family members are on the asylum application is not necessarily simple. In the submissions, we suggested that family members can be joined into an asylum file at a later date, along with proof of their relationship to the applicant.

  1. Opening and closing Refugee Reception Offices

Under the Refugees Amendment Act, the Director-General of Home Affairs would be able to establish, and disestablish, as many Refugee Reception Offices as he or she regards as necessary – ‘notwithstanding the provisions of any other law’. He or she would also be able to direct any category of asylum seekers to report to any ‘place specially designated’ when lodging an application for asylum. In Scalabrini’s submissions, concerns were around what an ‘other place specially designated’ might mean. We are especially concerned that it may result in what may essentially be de facto refugee camps or detention centres for certain categories of asylum seekers. Home Affairs has closed several Refugee Reception Offices since 2010, all of which were found unlawful by the courts. The laws with which opening or closing Refugee Reception Offices must comply with is not clear in the Refugees Amendment Act. This is of concern to us – especially considering the recent rulings on RRO closures. This amendment might well be paving the way towards the plans to ultimately construct ‘asylum processing centres’ on the northern borders of South Africa.

  1. Removal of the automatic right to work and study for asylum seekers

Under the Refugees Amendment Act, asylum seekers would no longer have the automatic right to work and study. This right would only be ‘endorsed’ on an asylum visa following an assessment process to determine whether the applicant could support themselves in any way (including with UNHCR’s support). If not, they would have the right to work endorsed – but they would need to show proof of employment within two weeks in order to remain with this right. If a workplace does not provide this proof of the asylum seeker’s employment, the employer can face a hefty fine. For those who are studying, the Refugees Amendment Act and Draft Regulations are not completely clear. Proof of studying at a South African education institution will be needed by asylum applicant, implying that the right to study will not be automatically granted.

In Scalabrini’s submissions, deep concerns were raised over the changes to asylum seekers’ right to work and study. The Watchenuka court case in 2003 confirmed asylum seekers’ right to work in South Africa, in that the right to work is interwoven with one’s constitutional right to dignity. The Refugees Amendment Act, it seems, would risk infringing rights to dignity once again. We are concerned that this system, if implemented, will be unworkable, impractical, and will lead to the degradation of asylum seekers’ dignity. What’s more, the UNHCR has confirmed that they are not able to provide shelter to asylum seekers in South Africa – despite the Act envisaging that the UNHCR would do so. The submissions also warned that employers will be hesitant to provide written undertakings (or risk fines), pushing applicants towards informal or unauthorised employment – which is neither beneficial for the asylum seeker nor the South African economy. The administrative process that will be needed to authorise an asylum seekers’ right to work would add further layers to the asylum system, creating more work for officials working in Home Affairs – who should be focusing their time and resources on processing asylum claims. We believe that, if the Department of Home Affairs is able to adjudicate asylum applications within a reasonable period of time, the need to ‘endorse’ asylum seekers’ right to work would fall away. We recommend that the Department of Home Affairs rather funnel resources towards improving efficient asylum adjudications.

 

Press Release: Undocumented learners’ right to education

SCALABRINI CENTRE EXPRESSES SOLIDARITY AND SUPPORT FOR THE CENTRE FOR CHILD LAW AND LEGAL RESOURCES CENTRE – UNDOCUMENTED CHILDREN MUST HAVE ACCESS TO EDUCATION

On Wednesday 18 and Thursday 19 September 2019, the Makanda (Grahamstown) High Court will hear arguments in a case regarding the constitutionality of legislation that the Department of Education has been using to prevent undocumented children (both South African and non-national children) from accessing education.

Scalabrini Centre wishes to express its support for our civil society colleagues in this case. We often receive complaints and queries from migrants, asylum seekers, and refugees who have experienced barriers when trying to have their children registered at a school in South Africa. The right to basic education, as enshrined in South Africa’s Bill of Rights, is inherent to a child’s dignity and to having their best interests recognised. To deny this right, simply because the child does not have a birth certificate, is an egregious infringement of that right.

Many asylum seeker and refugee families are not able to access documentation for their children. Sometimes they are refused assistance when trying to register the birth of a child here in South Africa, including being refused a birth certificate, or being refused an identity number for that child. Without access to that documentation, they experience further difficulties, including registering the child at school or accessing health care for that child. A lack of documentation is something that should not be used to discriminate against a child and deny that child the ability to thrive, regardless of where they or their family is from.

Support the Centre for Child Law and Legal Resources Centre in this case. See their websites: https://centreforchildlaw.co.za/ and http://lrc.org.za/ and follow them on Twitter (@UPChildLaw and @LRC_SouthAfrica) for press releases and updates on the case at it progresses.

About Scalabrini

Perceiving migration as an opportunity, SCCT is committed to alleviating poverty and promoting development in the Western Cape while fostering integration between migrants, refugees and South Africans. We provide different services including advocacy, welfare, employment assistance and outreach programmes. Read more at www.scalabrini.org.za.  

Whilst
Scalabrini is not directly involved in this case, it impacts on our clients.
For further information, contact Sally at sally@scalabrini.org.za


Danielle Harris – Advocacy Volunteer

Danielle came to South Africa, looking to better understand the praxis of international law and spent time interning in the Advocacy Programme. Read Danielle’s reflection on the ten weeks she spent here. 

“When I first saw Scalabrini, a building with an orange, red, and yellow facade, it looked like a place of hope in a grim area. For refugees, Scalabrini is exactly that- a safe haven. During my orientation, the facilitator asked us staff to traditionally introduce ourselves while also including a description of our daily commute to the office. There was a mixture of straightforward and convoluted paths, causing us all to approach our work differently upon arrival.

“But there were also many uplifting moments; translating for French-speaking clients and seeing a smile on their faces when they realised that they could be heard in their native tongue; assisting clients with certifications for permanent residency; and playing checkers (and getting beat) by men at a culture celebratory event on World Refugee Day.”

When I began to meet with refugees, I understood just how much our respective paths shaped us, especially since refugees took even more intense paths to get to South Africa. This discussion prompted me to consider how, unlike my journey from the United States, others were packed onto boats in conditions reminiscent of the Middle Passage, hidden under covers in trucks and buses, and had walked hundreds to thousands of miles to get to South Africa. 

Somewhere along the way, the clients learned about Scalabrini and they landed at my desk for me to either tell them comforting or unfortunate news. I would give a variety of responses to essentially tell someone that the journey they made to South Africa was for naught because they were not recognised as a refugee in terms of the 1951 Refugee Convention, or that they would have to travel for hours to apply for asylum. 

As an Advocacy intern, it was my job to assist clients with applying for asylum, preparing appeals, representations, and assisting with other legal issues that arose (i.e. hospital xenophobia, school registration, family joining). During my first week at the office, I sat with a colleague to shadow her during the client intake process. From 9am-12pm, we would individually meet with clients to hear their stories and problems, and offer advice on potential solutions.  

Throughout my ten weeks at the Scalabrini Centre, there were many heartbreaking moments: I met with people without refugee claims who literally carried their children in their hands and asked for help but could not be assisted; I had to tell people from Zimbabwe and other countries with economic and other claims that are not recognised by the Convention, and that they had to return home. 

But there were also many uplifting moments; translating for French-speaking clients and seeing a smile on their faces when they realised that they could be heard in their native tongue; assisting clients with Certifications for permanent residency; and playing checkers (and getting beat) by men at a culture celebratory event on World Refugee Day. I coped with work by finding beauty in the struggle and learning more about the clients’ lives outside of being a refugee, as well as hearing stories about their children, and talking with colleagues who had been at Scalabrini for years. 

A colleague of mine kept the following quote on their desk, “Helping one person may not change the whole world, but it may change the world for one person.” These words pushed me through times when I felt like I failed refugees because I could not directly or quickly change the problems within the refugee system or within their countries. Johnny Clegg’s song “Asimbonanga” also kept me going by reminding me of how many seemingly insurmountable battles South Africa has overcome, and that the battle for refugees here in South Africa can also be won.

I came to South Africa seeking a better understanding of the praxis of international law. Organisations like Scalabrini have shown me the necessity of on the ground work. As I return to the States, I will take with me the faces and resilient stories of many refugees. The country where Madiba stood tall in the face of injustice has taught me a lot of lessons on how to better the long walk to freedom for refugees.”

white paper on international migration

What is the White Paper on International Migration?

Keep up to date with our Teach-Yourself Series – condensed articles on current and planned changes in South African migration law. Our articles and infographics aim to spread awareness on South Africa’s migration landscape, and our standpoints on the issue. This is a joint initiative between The Scalabrini Centre of Cape Town and Sonke Gender Justice. The first four topics in this series are: the Refugee Amendment Act, the White Paper on International Migration, birth registration and health care access.  

For further information about the issues discussed in the series, contact lotte@scalabrini.org.za or you can visit www.genderjustice.org.za

1. Introduction

The White Paper on International Migration was released in July 2017. This Paper sets out the framework for future immigration law in South Africa. Prior to a White Paper, a Green Paper is released, for which we wrote submissions. Green and White Papers form part of the process of law-making in South Africa.

This White Paper sets out major policy changes including:

  1. Changes towards migrants from Africa (especially from the SADC region);
  2. Permanent residency and citizenship; 
  3. The South African asylum system; and
  4. Other international migrants.

The White Paper acknowledges that migration can help South Africa reach its National Development Plan goals, but it also links migration strongly to security risks, trafficking and corruption. In our submissions, we warn that an over-emphasis on the criminality of migration misrepresents most migrants living in South Africa, and reinforces the ever-growing securitisation of migration. 

2. Our General Stance on the White Paper 

We welcome the White Paper’s philosophy of linking migration to development. We also welcome the moves towards more mobility in the SADC region and African continent. At the same time, we are concerned that the White Paper fixates on the link between migrants and criminality, and makes provision only for ‘designer migrants’ – those who are economically established and highly skilled – which can result in a regional brain-drain and uneven regional development. 

We have deep and grave concerns around the changes to the asylum system in South Africa, which we believe will result in unconstitutional ‘camps’ on the borders, where thousands of asylum seekers will risk having their most fundamental human rights abused.

More generally, the terms used in the White Paper (such as ‘illegal migrant’ rather than ‘undocumented person’) contributes to the unnecessary criminalization of migrants. We are also concerned at the White Paper’s lack of referencing sources, as it makes claims that are not linked to research or statistics.

  •  3. Changes towards migrants from Africa

African continent

The White Paper takes a pan-African stance, which seeks to move away from the colonial legacies of previous migration policies. The Paper references the AU Agenda 2063, which calls for the abolishment of visa requirements for all African citizens. The White Paper aims for visa-free travel for African citizens (i.e., the ability to enter South Africa for ninety days upon arrival at South Africa’s borders). This would, however, only work if there are return agreements and security measures in place. ‘Trusted travelers’ from Africa will be able to access long-term, multiple-entry visas. The White Paper plans for a fully automated visa application system (for all migrants), whereby applications are made in countries of origin, and are subject to advanced security checks using improved data systems. 

Southern African Development Community Region

The Southern African Development Community (SADC) has aimed to work towards the free movement of people, goods and capital through various non-binding protocols. In reality, most of the SADC member states have not amended their policies in line with these protocols – and the White Paper stresses that, as the region’s largest economy, South Africa’s realization of this goal is difficult. The White Paper finds that 88% of recent deportations from South Africa were to Mozambique, Zimbabwe or Lesotho. With this in mind, the White Paper proposes the implementation of the following, which would include foreigners already living in South Africa:

  • Implementing more ‘Special Dispensation’ Permits for certain SADC nationals

Special Dispensation Permits have already been issued to certain groups of nationals in South Africa. These are temporary permits that allow certain work/study rights, but offer no pathway to permanent residency. These special permits are implemented through bilateral agreements between South Africa and another country. For example, the Zimbabwean special permit, which was first issued in 2014, offered temporary documentation to the mass influx of Zimbabweans during the economic crash. This permit has been extended three times (the current permits expire in 2021). Other special dispensation permits have been issued to Lesotho nationals and Angolan nationals.

  • New visa options for SADC nationals 

These options would include a special work visa, a trader visa and Small Medium Enterprise Visa. These visas would be dependent on bilateral agreements with South Africa and sending countries, and would be subject to requirements, such as business registration, SARS registration and so on. These visas would not link into permanent residency. 

In our submissions, we welcomed and celebrated these regularization projects, and the creation of a visa scheme for SADC citizens to legally enter, depart, and conduct employment and business in South Africa. We also agree with the White Paper that this will lift huge numbers out of the asylum system, providing relief and allow the asylum system to function (which means the huge changes planned to the asylum system would not be needed).

However, we also note some concerns on the SADC permit plans. Namely,

  • The existing special dispensation permits have been racked with problems of delays, incorrect permits and administrative blocks. To be most effective, we would like to see future dispensations better planned, organised and administered.
  • Existing special dispensation permits are subject to strict timelines, excluding huge swathes of people. We hope that future SADC visas will not be subject to such strict timelines, allowing nationals to apply at different times.

Although a step in the right direction, these ‘special’ permits are selective in who can apply, and when – resulting in a relatively small number of foreigners being documented rather than allowing for fuller SADC migration. It is not clear how low-skilled migrants could benefit from these permits, and risks allowing only ‘designer migrants’ to apply, resulting in brain-drains in sending countries. In the long term, we would support the development of an alternative migration management regime that would lessen the need for special dispensations.

  • 4. Permanent residency and citizenship

The White Paper wants to change the way permanent residency and citizenship are granted. The White Paper wants to de-link temporary residency and refugee status leading to permanent residency all together. The White Paper also wants to de-link permanent residency leading to citizenship. 

Instead, it plans to provide:

  • A ‘long-term residence’ instead of permanent residency, which would be accessible by certain migrants such as highly-skilled migrants on a fast-track system. This would not lead to citizenship;
  • Citizenship, but only to be granted by the Minister of Home Affairs in exceptional cases, after being advised and considered by a new Citizenship Advisory Panel (CAO).

In our submissions, we expressed concern around de-linking refugee status and permanent residency. Permanent residency is currently only granted to refugees who, after careful assessment, are considered to be in ‘indefinite’ need of protection as they are fleeing conflict or persecution that shows no sign of reconciling. According to the White Paper itself, between 2014 and 2016, only 4% of permanent residency applications were made by those with refugee status. Currently, the application to permanent residency via refugee status is an elongated, and careful procedure – and as such does not constitute a ‘pull factor’ for refugees coming to South Africa, as the White Paper claims. 

  • 5. The South African asylum system

The White Paper plans fundamental changes to the South African asylum system, which has caused deep concern within civil society.

Why the White Paper wants to change the asylum system

The White Paper finds the current asylum system to be overburdened, under-funded and non-functioning. Asylum adjudications take years, and many asylum-seekers hold expired documentation. On this basis, the White Paper plans to overhaul the asylum system. 

In our opinion, the challenges faced in the asylum system do not warrant a change in law. These challenges are challenges of implementation, communication, and commitment. For example, many asylum seeker hold expired permits not through a fault of their own, but because they cannot access Refugee Reception Offices (RROs), or their permits are simply stamped on the back rather than properly extended.

  • What the White Paper proposes: ‘Asylum Seeking Processing Centres’

In a move towards an encampment system, the White Paper lays down plans to construct Asylum Seeker Processing Centres on South Africa’s northern borders. We have expressed deep concern about this proposal. We believe these Processing Centers would be seriously detrimental to the rights and realities of asylum seekers, refugees and South Africans alike. We fear that creating detention centres in remote areas of the country will result in the long-term detention of vulnerable people without adequate support or adequate conditions. Such detention is unconstitutional and contrary to international law. Aside from being expensive, research shows that encampment policies do not deter migration – and could cause resentment from local South African citizens.

We believe that we should concentrate on improving the current system – with a better resourced and effectively managed asylum system based on the current Refugees Act of 1998. With the strain of regional economic migrants removed from the asylum system (through the new SADC visas), these improvements would be possible.

  • Life at the Asylum Processing Centre

In general, it seems that asylum seekers will be ‘accommodated’ at the Asylum Processing Centre while their asylum claim is being considered. The White Paper explains that governmental departments and international organisations (UNHCR, Red Cross) will operate at the Processing Centre. Vulnerable asylum seekers will be provided with special services at the Processing Centre. 

It seems that ‘low-risk’ asylum seekers can leave the Processing Centre (it is not clear what constitutes ‘low-risk’) into the care of organisations or community members. It is assumed that asylum-seekers who are granted refugee status will leave the Processing Centre. Asylum seekers will not have the automatic right to work. Their basic needs will be catered for in the processing centre. In exceptional cases, the right to work might be granted to certain asylum seekers. 

As above mentioned, we are deeply worried by the move towards detention centres on the northern borders, which we fear will result in the detention of asylum seekers, which is contrary to their constitutional right to freedom of movement. We are deeply concerned that the Department of Home Affairs will struggle to run a Processing Centre in a remote area away from public scrutiny.

We raised deep concerns around the changes to asylum seekers’ ability to work, as the Watchenuka court case confirmed asylum seekers’ right to work in South Africa, in that it is interwoven with one’s constitutional right to dignity. We advocate for the continuation of asylum seekers’ right to work in South Africa.

Funding the Asylum Processing Centres

It is not clear who will bear the cost of the Asylum Seeking Processing Centres. The White Paper acknowledges that ‘Additional … will be required’ for the Processing Centres, and indicated that Home Affairs is ‘developing a business case’ for the funding of the White Paper’s implementation.

We are concerned that, aside from the implications on human rights, Processing Centres will be an expensive venture. Similar asylum camps elsewhere are expensive to run ($224 dollars per day per person in the US). Aside from running costs, Home Affairs will have to set aside sizeable budgets for litigation on unlawful detention. Home Affairs indicated that the UNHCR will be implicated in supporting costs for changes to the asylum system. However, the UNHCR specifically confirmed they would not be able to fund such programmes in South Africa. In our submissions, we advocated that governmental funds should rather be spent on running the current asylum system properly, reopening RROs and training staff. This, paired with less asylum applicants (due to SADCV visa regime) will result in a functioning asylum system.

  • Exclusion from refugee status

The basis upon which refugees can be excluded will be expanded to include applicants that have failed to apply in safe countries en route to South Africa, often termed ‘third safe countries’.

We find that this cannot be legally implemented in South Africa. The principle of ‘third safe countries’ is not considered legal practice under international law. Under the Refugees Act of South Africa, those who have been granted refugee status in other countries cannot be granted refugee status in South Africa. But those who have merely transited through countries on their way to South Africa cannot be denied status based on their route taken to reach South Africa. Returning people to countries where they might be at risk of harm, or deportation, has been protected against – both by the Refugees Act (Section 2) and by South African caselaw.

  • Changes to refugee status and permanent residency

Those with refugee status will no longer be able to access permanent residency, but they might be able to access the long-term residency visa. As above mentioned, those refugees applying to permanent residency are subject to a thorough process. 

We are of the belief that, for those refugees who can never return home, permanent residency is an appropriate durable solution.

6. Other Provisions of the White Paper

The White Paper also includes provisions, to which our submissions did not reply. This included better managing ties with South African expatriates, and improved integration systems for international migrants in South Africa (such as legal advice desks). 

For highly skilled migrants from other continents than Africa, the White Paper sets out a points-based system. Skilled migrants will be considered in terms of their skills, investments and qualifications. This will be tied to a critical skills list. Migrants with critical skills will be able to apply for a long-term family residence visa, and international students will be able to access residency after graduation. Where skilled migrants are granted residency, schemes must be deployed to transfer skills to local South Africans, such as through understudy programmes. 

7. Children and the White Paper

Both the Green and White Papers on International Migration fail to mention the specific needs of migrant and refugee children. In response to this, joint submissions were lodged focusing solely on children’s issues. Migrant children have severe trouble accessing documentation options in South Africa. No systems exist to record entry of migrating children and therefore the number of undocumented children in SA is entirely unknown. Children born in South Africa to foreign parents are facing increasing difficulties in accessing birth certificates. 

The White Paper does not mention children specifically (only in the family visa for highly skilled migrants). ‘Vulnerable groups’ will be held in the Asylum Processing Centre, which might include asylum-seeking children. Accordingly, we stress in our submissions that the detention of children should only be used as a last resort and if so, for the shortest possible period of time. This is set down in international and national law. Again, it would seem that Asylum Seeking Processing Centres would therefore be unconstitutional and contrary to international law. We urged, in our submissions, that the White Paper include a special permit for migrant children and ensure that data systems exist to understand the number of children in South Africa, including express provisions to issue birth certificates to all children born in South Africa, regardless of their parents’ nationality. None of these submissions were considered in the White Paper. 

Contact Us

Do you have further questions on the White Paper on International Migration? Please visit www.genderjustice.org.za or www.scalabrini.org.za and get in touch!

migration statistics fact 1

Migration Statistics: South Africa

scalabrini success story malaika unite

Malaika: Learning to Love Myself

Malaika, 16, is in grade ten at Sea Point High and has been a member of UNITE for the past two years. Her involvement has taught her a lot about the importance of confidence and self-love.

Discovering the Beauty of Integration

Malaika was born in Cape Town and raised in Gugulethu. She joined UNITE two years ago, and it has played quite a significant role in shaping Malaika’s social life at Sea Point High. “Before UNITE, I never thought I would be friends with people who aren’t black. I have been surrounded by black people my whole life, so I just expected to feel a connection with black students more than others.”

Malaika went on to explain that the topics she was introduced to through UNITE shifted her worldview. “We talk about integration and it has opened my mind to a lot of things. Here at school, you find different kinds of people who segregate themselves from each other. UNITE has given me the confidence to get up and talk to them. Now, I am open to having relationships with people I would not see in my own community.” 

“Hearing what people say about you can determine how you feel about yourself, when you should be in charge of that. I had to realise that there is much more to life than being a certain size, or getting likes on Facebook and Instagram. If I’m going to base my life on that, I’m not going to live my life the way I want.”

Change Starts From Within

High school has challenged Malaika beyond just engaging with her peers. UNITE has taught her to continuously question her actions and beliefs. 

“In grades eight and nine, I dealt with a lot of self-image problems, to the point that I became a vegetarian.” Malaika blames the media for instilling the pressure she felt to look a certain way. However, UNITE ignited meaningful dialogue that taught her to prioritise her own ideals over socially-imposed ones. 

“Hearing what people say about you can determine how you feel about yourself, when you should be in charge of that. I had to realise that there is much more to life than being a certain size, or getting likes on Facebook and Instagram. If I’m going to base my life on that, I’m not going to live my life the way I want.”

Malaika’s self-assurance can be observed in casual conversation, but she mentions that exuding confidence has not come naturally. She describes coping with judgement and negativity as an intimate process. “When you’re at home, sitting in your room dealing with these things, you look into the mirror and see it’s just you. When it comes to dealing with what people say, it’s just you.”

Practicing What You Preach

Malaika plans to spread the importance of seeking self-validation to her younger peers. She is doing so by starting an organisation whose sole purpose is to encourage girls to be comfortable and confident in their own skin. She plans to facilitate group discussions and build a community of support for girls who face similar struggles.

Furthermore, Malaika’s ambition extends beyond the halls of her school. In the future, she plans to become a human rights activist, and to advocate for the rights of marginalised individuals. Equipped with her tenacity and drive, Malaika is sure to find success wherever she turns.

“Now, I am open to having relationships with people I would not see in my own community.” 

cape town volunteer all rounder shreyas

Shreyas Gupta – All Rounder volunteer

Spending a few weeks at Scalabrini has been very interesting for Shreyas, especially in terms of  helping him unpack his thoughts around his own immigrant status, living in the US. Shreyas was an All Rounder at Scalabrini. Read about his time here below.

“I’m originally from India, but I was born in South Africa and grew up in the US. Cape Town has been different for me in terms of personal exploration and growth, in the sense that I’m now at the age where I can be here without my parents and that supervision. On the city front, I think that maybe it’s the context of the work that I do, the people that I’m with or the programme that I’m in, I’ve become a lot more aware of some of the racial and class tensions. But, I have also really loved this city and all it has to offer. I always imagined Cape Town as a big city, but it is small, at least it is divided in a way which makes it feel small. 

“You have to be quick on your feet in learning small tidbits of things and then deep dive when needed. Given the nature of that, I’ve been able to interact with so many different people and I think I’ve really taken that personally in the sense that it’s been really rewarding.” 

What brought me to Scalabrini was generally the work around refugees and migration. I think the work is interesting in the sense that my parents are first generation immigrants, which has been more of a relevant conversation as I’ve gotten older. Also as the political climate continually progresses in the US and around the world, I’ve become much more aware of my immigrant status. 

I only got my citizenship three years ago. So just understanding a lot more of what it means to be a citizen, what it means to be a permanent resident etc.

My current position here is an All Rounder, but I spent my first three weeks doing EAP (Employment Access Programme) work. I would say that I have worked in almost every division at Scalabrini besides the Women’s Platform and BASP. It’s been really cool to get a larger sense of the organisation, but also to have honed in exposure of EAP. 

I think one of the most interesting things about the organisation is that it’s so dynamic, there are just things always moving. That has been an interesting learning curve, whatever is needed, you just have to adapt to. You have to be quick on your feet in learning small tidbits of things and then deep dive when needed. Given the nature of that, I’ve been able to interact with so many different people and I think I’ve really taken that personally in the sense that it’s been really rewarding. 

I’ve learnt a lot. I think factually a lot about migration. I didn’t know a lot of the statistics and a lot of the issues migrants face. One of the biggest things that I have taken away, was from a meeting with Miranda, she said that Scalabrini’s overall mission was to create a perception of migration being an opportunity. I think that has been so true of what is being said in the media and the way people view refugees, it’s always viewed as a crisis and that is always how it’s been taught to me. Since being here, I’ve realised there are a lot of things that have been misinterpreted and misinformed. It’s been humbling to say the least, even if that sounds cliché. It’s been humbling to see people coming in so determined and put everything on the line to make a better life for themselves and their families. 

I was helping one client make their CV and they were my age from Angola and in almost every single way he was similar to me, he moved here when he was three, he grew up here, had perfect English and is now an entrepreneur. I’ve done a lot of entrepreneurial work. I would have conversations with him like with someone back home. So it was interesting, because I was still having to help him, but he was highly capable. I had conversations with him and I learnt about him, he learnt about me, we shared something that I wouldn’t say everyone could have in common with someone. But again, the nature of the situation he was born into, we just had different upbringings, but to no fault of his own, obviously. I think that was really cool to have that connection. 

Future plans are very up in the air. So if I can find a way of hopefully tying all my interests together, then that would be really rewarding. Lots of conversations to be had, but I think I’m getting a better sense of this meaningful work. This is important to me, and as I said my status as an immigrant, coming to terms with that and what it means.”