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.
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:
- Changes towards migrants from Africa (especially from the SADC region);
- Permanent residency and citizenship;
- The South African asylum system; and
- 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
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.