In the past year the South African government has published some important policy documents that indicate a serious shift in the future of migration policy for the country. This includes a new Green Paper on International Migration, the Refugees Amendment Bill, and the Border Management Authority Bill. The Scalabrini Centre of Cape Town (SCCT) has been working with government and other stakeholders on these policy documents and legislation through participation in public consultations, workshops, and submissions on the proposals to the Department of Home Affairs (DHA) and to the Portfolio Committee on Home Affairs in Parliament. The Refugees Amendment Bill and Border Management Authority Bill have been progressing through Parliament and a new White Paper on International Migration is scheduled to be released sometime in 2017. Here we will have a look at these three policy documents and what they mean for South Africa.
What is the Green Paper on International Migration, and what does it say?
A Green Paper is a discussion document that begins the process of making a law and sets out the government views a certain issue and policy proposals to address it. The Green Paper on International Migration was released in June 2016 and sets out the plans for future migration policy in South Africa; it comes nearly 20 years after the first Green Paper on International Migration was published in 1997.
In short, the Green Paper recognizes migration as a complex phenomenon that can be beneficial for South Africa. The Green Paper speaks positively about certain aspects of migration including the need to focus on methods to harness migration as a tool for development and the need to address and facilitate legal avenues for labour migration from the Southern African Development Community (SADC) region. This is in line with the National Development Plan’s call to harness migration to break patterns of poverty and to create more opportunities for decent work. The Green Paper also contains a strong African-focus and speaks about an ultimate goal of achieving the free movement of people, goods and capital in SADC member states which is also being advanced by the African Union in its Agenda 2063 development plan. However, the Green Paper has a different tone in relation to those seeking international protection as asylum seekers. Currently, South Africa’s policy of ‘non-encampment’ means that asylum seekers and refugees are free to move within the country, to settle where they are able to live meaningful lives. The plans proposed in the Green Paper would instead see asylum claims processed in a ‘processing centre’near the country’s northern borders. Furthermore, the Green Paper recommends removing the right of asylum seekers to work and to study in South Africa, relying instead on the provision of shelter and necessities by non-governmental organisations and UNHCR. Other restrictions include extending the number of years a refugee must be in the country from 5 to 10 years before applying for permanent residence. The changes to the asylum system are of grave concern to the SCCT which is outlined in our submission on the Green Paper as well as our submission made in partnership with the Centre for Child Law and Lawyers for Human Rights focusing on the needs of children and migration policy.
What is the latest news with the Green Paper?
Submissions on the Green Paper could be made by any stakeholder and were due in September 2016. After government considers the input of stakeholders, it will then publish a more refined document in the form of a White Paper which is a broad statement of government policy which future legislation should align with. The the Department of Home Affairs recently held a national conference on international migration in Johannesburg to discuss specific issues and as of May 2016 the White Paper has been approved by Cabinet and will be released to the public in the near future.
What is the Refugees Amendment Bill, and what does it say?
The Refugees Amendment Bill (2016) seeks to amend the Refugees Act of 1998 which has been described as ‘one of the most advanced and progressive systems of protection in the world’. While the protection system is progressive on paper, it has suffered from implementation issues since its inception. As a response, the Bill proposes significant changes to the asylum system and contains many of the same proposals made in the Green Paper, but is largely silent on how these changes will be implemented in practice and in light of the existing implementation challenges. Some changes are administrative; for example, the Bill wants to make a more flexible system for the appeal process to increase efficiency within the appeal process which currently features massive backlogs. However, many of the provisions seek to add further layers of bureaucracy and duties into the application and adjudication process which will not address efficiency or implementation challenges currently plaguing the system.
Like the Green Paper, the Bill shifts the responsibility of providing shelter and support to asylum seekers to UNHCR and friends and family, as opposed to asylum seekers supporting themselves. This proposal has not been fully elaborated on, but it indicates that asylum seekers would not be able to work in South Africa if they are able to receive support from friends / family or from UNHCR and other charitable organisations. In the appeal process, the Refugee Appeals Authority will replace the current Refugees Appeal Board to make a more flexible and efficient appeal process. Other proposed changes include provisions for the abandonment of asylum seeker’s claims if an asylum seeker is over thirty days late in extending their asylum permit and increased exclusions from refugee status.
What does the SCCT think about the Refugees Amendment Bill?
The SCCT made submissions on the Draft Refugees Amendment Bill to DHA in 2015 as well as to the Portfolio Committee on the current version of the Amendment Bill before Parliament. The submission on the current version of the Bill is available here. The submissions have recognized that the high number of asylum applications made in South Africa has strained the capacity of DHA to effectively administer the asylum system but at the same time, DHA must demonstrate the political will to properly implement the Refugees Act and ensure the integrity of the asylum system and ensure that asylum seekers’ rights, under national and international law, are fulfilled. Our submission concludes that, should the current system for processing asylum applications be provided with better resources and capacity, that many of the problems encountered by DHA could be solved. For example, if Refugee Status Determination Officers and the Refugee Appeal Board had more resources and training, the current asylum system could function more effectively, especially if these targeted adjustments were complemented with a special SADC work visa for low- to mid-skilled migrants as discussed in the Green Paper. Given the challenges facing the current system including systemic challenges with access to Refugee Reception Offices, systemic challenges in refugee status determination processes, and endemic corruption, the SCCT believes that many of the restrictive proposals are unduly harsh, disproportionate to the challenges they address, and unlikely to pass Constitutional muster. The likely result will be the exclusion of many legitimate refugees through no fault of their own. The current system allows for asylum seekers’ and refugees’ freedom of movement and right to work which allow asylum seekers and refugees to live meaningful lives and these rights must be protected.
What is the current status of the Refugees Amendment Bill?
As of May 2017, the Refugees Amendment Bill is due to be presented to the National Council of Provinces in June after being passed by the National Assembly earlier this year.
What is the Border Management Authority Bill?
The Border Management Authority Bill seeks to change the way our borders are managed. At the moment, different aspects of managing our borders are managed by different arms of the state. For example, SARS manages customs at the borders, the National Defense Force defend the borders, and DHA regulate the entry and exit of people. The new Border Management Authority Bill creates new border management regime with elements of different government agencies working under one entity that would be managed by DHA.
What is the current status of this Bill?
At the time of writing the Border Management Authority Bill did not pass through the National Assembly as it did not receive enough votes. The Bill will be placed back on the roll and voted on again at a later date.
What does the SCCT think of this Bill?
The SCCT made submissions on the Draft version of the Bill to DHA in 2015 as well as on the current Bill before the Portfolio Committee on Home Affairs highlighting our concern at how the legislation would be implemented and the amount of power over border functions consolidated under one agency. Our comments on the first version highlighted the lack of reference to international human rights law and non-refoulement specifically, and we are pleased to see specific reference has been made to the need for officers performing border controls functions to exercise their powers in line with the fundamental rights of persons as under Chapter 2 of the Constitution, public international law obligations, and with proper consideration of vulnerable groups including victims of trafficking, asylum seekers, and refugees. On other issues in the current Bill, we remain concerned about the possible duplication of roles and implementation challenges that the creation of a new entity may encounter. We agree with other organisations (such as Business Leadership South Africa) that SARS should remain responsible for the management of custom revenue and that any alterations to the management of the border must be subject to appropriate checks and balances.
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Picture credit: Nicky Newham