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For the past eleven years, Miranda Madikane has been the director of The Scalabrini Centre of Cape Town – a bustling NGO in the heart of Cape Town offering specialized services to migrants and refugees, who come from all over the African continent and Asia. She reflects on her position as director, and what the changes she has seen in Southern African migration.

1. You have a demanding job, being the director of such a busy, multi programme organization. What is your favorite aspect of your work?
Realizing how much we are actually managing to help people. Sometimes we help people in a really small way, and sometimes we manage to change people’s lives in a really significant way that’s really useful. There were times, looking back, where I remember thinking that helping a person is probably the most complicated thing that you can do, and the fact that we have the systems and the programs in place that support us in helping such high numbers of people on a daily basis is amazing. The amount of thanks and gratitude that we get from our clients makes me know that our work is valuable.

2. What is the most challenging aspect of your position?
I think it’s the crazy pressure, and the fact that no two days are alike. In some ways, you never know what you’re going to be smacked with. We’re an extremely responsive organization, so that means we are really hit by external events, which can be crazy because it adds a huge amount of pressure to daily work. On the other side, I’ve got the joy of being challenged on a spiritual level, on an ethics level, on an emotional level, on an intellectual level, on a physical level, so I think that’s really fulfilling. I often say to my team that we work as hard as any corporate, that we are under as much pressure as the corporate, but our goal isn’t profit, it’s change.

3. You work with issues of migration every day. What makes you so passionate about this topic?
Having now worked for so many years with migrants and refugees and asylum seekers, and having a legal framework that is one of the best in the world for protection, seeing how that plays out to support our clients when implemented properly is incredible. It feels so nice to be backed by a framework that supports the dignity and freedom and healing of clients in a way that allows them to control their own destinies.
It’s so important for us to have that legal framework, though, one that offers a route to neighboring countries and access to economic opportunities of the country. Such incredible productivity comes from the economic migrant. Their aspirations and their dreams and their energies are so positive for the country, plus, they bring new perspective! They bring new cultures, new songs, new hairstyles. These may be nuanced and perhaps not so tangible contributions, but they add to the flow. So I think migration, properly managed, can be so positive in our context and I feel like it’s wasted.

4. From your perspective, has migration to South Africa changed in nature over the last few years? If so, what kind of changes are we witnessing?
There’s been a shift from the management of migration being designed to support the vulnerable and those fleeing persecution. The government was not prepared to accept economic migrants into the country, and that’s what happened. There wasn’t a parallel system for immigration vs. protection, and as a result, people started using the refugee system to gain access to work permits. So the consequence of that was that home affairs was completely overwhelmed by numbers, and could never, ever manage individual status determinations for each and every single person who came. But instead of then opening up a system that allowed for economic migrants or migrants of aspiration, the government has chosen to tighten and reduce the protection space for all refugees and asylum seekers. And the sadness there is that those who are in real need of protection are finding it more and more difficult to access.

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“We’re definitely seeing more women, and I think that’s in line with what’s happening on a macro level – more women migrating for economic reasons, and for protection.”

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5. What kind of changes in client profile have we seen in the last few years?

We’re definitely seeing more women, and I think that’s in line with what’s happening on a macro level – more women migrating for economic reasons, and for protection. There’s also a big difference, of course, in access to documentation; we are supporting higher numbers of undocumented individuals. In 2012, 1% of the entire organization’s clients were undocumented. Now, it’s more like 24%. So it’s a massive shift, which of course reflects the reality of the closing of the space, the protection of the space.

6. How does Scalabrini react to these kinds of changes?

The increase in women saw the rise of the women’s platform, and it’s affected our strategic direction. I mean, we are very conscious of the rise of the undocumented, and that is something we constantly advocate around. As an organization we have to be extremely careful. We’re allowed to offer humanitarian aid, so you’ll see that in the employment access programme, you have to be documented to gain access to services. Otherwise it would be aiding and abetting an irregular migrant in accessing work. Our welfare desk is allowed to assist undocumented, because they are offering humanitarian aid. The advocacy programme speaks to undocumented, and if they have claim, gives them due process to approach an RRO. Our undocumented clients who have no claim, though, are normally told that the only way to legalize their stay in South Africa is to return to their home country and to make application in that way.

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7. Has the way that the South African government approaches migration changed over the last few years?
The South African government’s method of dealing with migration has shifted from a social to a security approach. South Africa sprang from a place where many of us had been refugees in exile from the apartheid regime, and it was based on the knowledge of what that meant to be in exile and to be running from your state that this beautiful refugee act was formed.

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I think the issue arose from the lack of resources and structure to support high numbers of refugee and asylum seekers coming into the system. The government’s knee-jerk reaction was to blame the migrant, so the asylum seeker and the refugee were demonized, instead of actually seeing that their failure is in lack of structure.

8. Looking to the future, how do you think migration to South Africa might change in the coming years? Are there things to be concerned about, and things to be excited about?
One of the big positive factors in the white papers is the introduction of the South African visa regime, which allows migrants from our region access to low-skilled work permits, cross-border informal trade permits, and small business enterprise permits. So that’s really exciting because it means that people can come in not on a pretense, but come in for the reason that they’re here and it’ll make it slightly easier for them. It also means that the circular migration will be much easier to achieve, and I think therefore the joining of South Africa to the rest of Africa will become much realer. And then, who knows? Maybe South Africans will say, “hey, maybe there’s opportunity for me in Kinshasa,” and you’ll see South Africans looking more broadly at opportunities and gaps in the market that are definitely there in the rest of the region.

The negatives are obviously the move to the border, the closure of the RRO’s [Refugee Reception Offices], the refusal of Home Affairs to obey court orders, the blaming of the refugee and asylum seeker for their management. I mean essentially, it is their [Home Affairs’] duty to control the decision-making of the RSDO’s [Refugee Status Determination Officer] and while I have sympathy for the numbers, I don’t believe that there’s any sincerity in their attempt to properly manage it. Those are all negatives, and what we see with, what they call the securitization approach or the externalization approach, is the criminalization of the migrant. At the moment, it’s a criminal offense to assist an irregular migrant but not a criminal offense to be an irregular migrant (it’s an administrative offense) but I think with this new approach, that will change. So you’ve got your individual person who decided to dream a dream becoming a criminal.

9. Migration is such a hot topic in South Africa. Is there a specific mind-shift that you think would be beneficial to our future as a country?
Right now, the government is looking at what’s happening in the rest of the world and tried to align themselves with a lot of first-world countries where there is a growth in populism, where migration is used for fear, where security is touted as the way to properly manage migration, where a lot of externalization is happening; you can see in Australia, and now in Europe, people are being held out of the borders of the places where they’re seeking asylum. So, that’s essentially what South Africa has been mirroring since about 2011-2012, and now it’s reaching its pinnacle with regulations for amendment coming in and the white papers clearly stating that they’re hoping to externalize.

I feel that the security of the nation lies in data that has integrity. So if you know what the movement of people is, and you know where they come from, and why they’re here, that, for me, offers protection. Not trying to build a wall that stops migration from coming through, because migration is like water. And you can’t really stop the flow of water, so you won’t stop the flow of migrants. With migration, we’re talking about the movement of people, but the migrant is a person.

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“With migration, we’re talking about the movement of people, but the migrant is a person.”

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Yesterday’s Supreme Court judgement on the interpretation of South Africa’s Citizenship Act could result in a swathe of young people – those born and raised in South Africa with foreign parents – being able to apply to citizenship. We speak to Michelle,* who is hopeful that she can finally be recognized in South Africa, the only country she has ever known.

Upon meeting her, Michelle ‘seems South African’. Born and raised in Cape Town, Michelle went through South African primary and secondary school where she ‘learnt about our history and did everything South African learners do’. She later enrolled to study teaching at Stellenbosch University. But her university career was cut short in her second year when her documentation became an issue, rendering her ‘illegal’ in the only country she’s ever known. Now, at the age of 23, Michelle’s hopes have been raised by a recent Supreme Court Judgement on citizenship law in South Africa.

Stateless in South Africa

Michelle’s parents fled to South Africa from Angola in 1992. Having never had issues with documentation and using her South African birth certificate for schooling purposes, Michelle describes how she ‘felt truly South African’. In 2013, the South African government withdrew all Angolans’ refugee statuses. Michelle and her family were left undocumented as the Angolan authorities did not recognize them to be Angolan.
Suddenly, without documentation, Michelle had to drop out of her existence in South Africa. ‘I had to leave Stellenbosch University. All of my friends started graduating, finding jobs, moving on. I could not do anything – I was at home and I couldn’t find jobs or contribute to my household. I felt completely lost.’

Changes in Citizenship Law

In 2013, the South African Citizenship Act was amended to allow children born in South Africa – regardless of their parents’ nationality – to apply for South African citizenship upon turning eighteen. The applicant would have to provide a birth certificate, and prove that they had remained in South Africa during their life. ‘I kept googling this Citizenship Act,’ explains Michelle. ‘It spoke to me because it said, if you are born in South Africa to non-South African parents and you turn eighteen you can apply for South African citizenship.’ However, Michelle was not able to apply for South African citizenship, because the Department of Home Affairs claimed that this provision of the amended citizenship law was only applicable to those born after the change in law. In other words, only children turning eighteen in 2031 would be able to apply for South African citizenship through this new provision. Upon discovering this, Michelle’s hopes to legalize herself were dashed. ‘I was filled with anxiety because I could not see my future. I still had no way of proving my own identity.’

Challenging citizenship in court

In 2017, the Legal Resources Centre approached the Western Cape High Court, requesting confirmation that the relevant provisions of the Citizenship Act be applied to those turning eighteen after 2013 in South Africa. The Legal Resources Centre argued that the refusal to consider their citizenship application infringed on their constitutional entitlements – and by disallowing citizenship, the Department of Home Affairs was forcing them to be non-citizens in the only country they had only ever known.
In September 2017, the Western Cape High Court handed down a judgement affirming that those born to foreigners in South Africa, who turned eighteen after 2013, should indeed be able to apply for South African citizenship. However, the Department of Home Affairs appealed the decision. To Michelle, the news of Home Affairs appealing the decision ‘felt like a punch backwards’.

Just over a year later, the matter was heard in the Supreme Court of Appeal. On 30 November 2018, it was ruled that those born in South Africa before 2013 be able to apply for South African citizenship. The Department of Home Affairs has been ordered to make regulations and provisions so that applicable individuals are able to apply. In making this judgement, the Supreme Court noted that ‘it is not in the interest of justice and neither is it just and equitable to send the respondents from pillar to post simply because the Minister has adopted a supine attitude that the regulations will only be promulgated in due course.’ The Legal Resources Centre has welcomed the judgement ‘which confirms the rights of our clients to nationality and ensure that they are not to be rendered stateless through restrictive interpretation of nationality laws.’

‘This judgement will change my life forever’

Michelle is ecstatic. ‘If this judgment is realized, it will change my life completely. I will be able to do what every normal person does and pursue my dreams. I also am excited about small things, like opening a bank account, and not hiding my money under my mattress anymore.’ If the judgement is unchallenged and implemented, Michelle could apply to be a South African. This change would mean Michelle going from a stateless person to a South African. ‘If I had an ID book in my hands, I would feel alive, not invisible. I would feel like I matter and I am equal. I want someone at the school, library or airport to look at my ID book and say, ‘Oh Welcome, Michelle Ntumba!’

*Names are changed to protect identities.