Our submission on the White Paper on Citizenship, Immigration and Refugee Protection
We strive to challenge, influence, and improve law, policy and practice impacting people on the move, and to ensure their agency, belonging and integration, in order to achieve a welcoming South Africa where the rights of people on the move are realised. The SCCT works with asylum seekers, refugees and other migrants on a daily basis, addressing obstacles many face to meaningfully contribute to society. We draw on this experience, along with relevant and contemporary research on migration, to offer our input on the Department of Home Affairs’ White Paper on Citizenship, Immigration and Refugee Protection: Towards a Complete Overhaul of the Migration System in South Africa (hereafter ‘the White Paper’). We appreciate the opportunity to share our knowledge and contribute to this process.
We support the Department’s attempts to address some of the current gaps in law, policy and practice regarding international migration and human mobility in South Africa. Our experience has shown that often the developmental power of migration has been squandered due to policies and practices that do not speak to each other or are not effectively implemented.1 Developing and implementing a practical, consistent and rights-based policy on human mobility and citizenship has the potential to assist in South Africa’s development and enhance our security and economic prospects. At the same time, a more coherent policy can strengthen regional ties and integration across a number of sectors. Such a development would enhance the lives of both South Africans and non-nationals and establish South Africa as a leader in a more integrated and developed region.
Toward this end, we support the Department’s emphasis on the need to properly train officials and on the urgent need to root out the endemic corruption that has become widespread within the current framework. It is without a doubt that effective border control measures are essential for the purposes of combating serious international crime such as smuggling and trafficking, and we support the Department’s efforts to improve these critical functions. We also agree there is a need to align legislation and practices as the existing gaps have significant impacts on the lives of individuals – both citizens and non-nationals – and on governance.
However, we are gravely concerned that the current iteration of the White Paper does not establish a solid foundation for an effective legislative and policy reform process. Many of the issues with the current framework cited in the White Paper are more related to bureaucratic challenges than legislative deficiencies, and many of the major proposals – such as withdrawing from the 1951 Convention relating to the status of refugees and entering reservations – would result in a significant reduction of many fundamental constitutional rights and represent a retrogression in working towards the full realisation of those rights. Such a move would violate our obligations to work towards the ‘full realisation of rights’ as under international law, including the International Covenant on Economic, Social and Cultural Rights,3 and is hard to reconcile with our recent application to the International Court of Justice to ensure the international human rights law framework is upheld and respected for the protection of a vulnerable group. What’s worse, as explained below in our submission, is that the proposed move to reduce the rights of refugees, for whom our highest Court has confirmed as a vulnerable group, is based on an incorrect interpretation of international law and the Bill of Rights in our Constitution. Unfortunately, many of the White Paper’s proposals are put forth based on misinterpretations of law, fact and practice, lacking careful consideration and empirical evidence to justify the restrictions. In general, there is little engagement with available data and research on migration and scant reference to the regional and economic aspects of migration in our region. To say the White Paper is a negative document in tone and ideas is an understatement.
As the current legislative and policy development process unfolds, we hope that a meaningful public consultation and engagement process leads to a more constructive and positive policy framework for human mobility and citizenship. We hope that our submission assists the Department in rectifying some of the inaccuracies and miscues, and that our suggestions for a migration framework that engages our continent and region positively are taken seriously. We thank the Department for the opportunity to contribute.
