The determination of refugee status in South Africa : a human rights perspective

Abstract

The South African Refugees Act1 makes a distinction between an asylum seeker and a refugee. The Act defines an asylum seeker as “a person who is seeking recognition as a refugee in the Republic”. A refugee on the other hand, is a person “who has been granted asylum” in the Republic.2 The legal position in South Africa is that before a person is recognized as a refugee, he or she is protected by the Bill of Rights to a certain extent. In the case of Lawyers for Human Rights v Minister of Home Affairs the Constitutional court confirmed that the protection afforded by the Bill of Rights applies to everyone, including illegal foreigners and asylum seekers.3 This means that asylum seekers and refugees are entitled to most of the rights in the Constitution except those specifically reserved for citizens. Practically though, a refugee enjoys more rights than an asylum seeker. It is therefore in the interest of asylum seekers to have their status as refugees determined. The process of applying for refugee status can be a challenge for those seeking refuge in the Republic of South Africa. For applicants coming from non-English speaking countries, language barrier can also present its own challenges. In terms of the Refugees Act, the first application is to the Refugee Reception Officer at the refugee reception office. The application must be made in person.4 When an asylum seeker is deemed fit to qualify for asylum, he or she will be issued with a permit in terms of section 22 of the Refugees Act. The permit allows the asylum seeker to temporarily reside in South Africa until the finalisation of the asylum claim. This permit does not mean that the asylum seeker is already recognised as a refugee. The permit is an indication that the asylum seeker’s application as a refugee is not yet finalised. The application is considered finalised when it has gone through the hearing before the Status Determination Officer and any review or appeal following from that decision. It is the Refugee Status Determination Officer who will grant asylum or reject the application.5 For people applying for refugee status, the determination by the Status Determination Officer may in itself mark the beginning of the process to be repatriated back to the country they were running away from in the first place. An aggrieved applicant can also apply to have the adverse decision reviewed or even lodge an appeal in accordance with the provisions of the Refugees Act.6 For as long as the application is still pending, the government cannot deport any asylum seeker. An asylum seeker who enters the Republic of South Africa, either through a port of entry or illegally faces many challenges before he or she could reach a refugee reception office. Those who come in through a port of entry face being turned away by Immigration Officers due to lack of documentation. Often, asylum seekers find it hard to reach the refugee reception offices as there is no co-operation between the Immigration Officers, the South African Police Service and the functionaries in the refugee reception offices. To make things worse, the Immigration Amendment Act has reduced the days from fourteen to five, for asylum seekers without valid documentations to reach any refugee reception office. Since refugee reception offices are located only in five cities in the country, these have conditioned asylum seekers and refugees to stay and make their living in those cities as they are required to make frequent renewal of their permit. The closure of some of the refugee reception offices like the Johannesburg refugee reception office has caused a major concern to asylum seekers and refugees. This persistent closure of refugee reception offices may be seen as a further persecution in the eyes of asylum seekers and refugees. The inability of the different functionaries to differentiate between asylum seekers and economic migrants adds to the problem concerning the process of refugee status determination. Instead of seeking to identify people in need of protection from persecution or events seriously disturbing public order, the process is used as an immigration control and this causes more people to be turned away or returned to countries where their lives may be at risk. The communication between the asylum seeker and all the functionaries of the Department of Home Affairs is very important. The lack of professional interpretation functionaries to help asylum seekers who need interpretation contributes to the problems asylum seekers face. Often, asylum seekers have to provide their own interpreters if the Department is unable to do so. The purpose of the study is to investigate the status determination process from a South African perspective and to make recommendations which will try to resolve the problem(s) identified.