Living in limbo: Rights of asylum seekers denied
South Africa: Failing asylum system is exacerbating xenophobia
Despite its strong legal and human rights framework on refugees and asylum seekers’ rights, South Africa’s asylum management system is failing, leaving hundreds of thousands of applicants without proper documentation and exacerbating xenophobia in the country, according to a report – Living in Limbo: Rights of Asylum Seekers Denied – released by Amnesty International South Africa today.
“The current asylum management process system is failing everyone. In persisting with a broken system that leaves those trying to claim asylum undocumented and in limbo, the government is causing a divide and inflaming tensions between South African citizens and fellow Africans living in the country,” said Shenilla Mohamed, Executive Director of Amnesty International South Africa.
“Instead of acknowledging its failures, the government is perpetuating the view that the ongoing high demand by people trying to seek asylum at refugee reception offices stems from the abuse of the system by economic migrants. This has given rise to a toxic anti-asylum seeker narrative that is pushed by those in authority."
The report found that poor decision-making, including mistakes of fact and lack of sound reasoning, has resulted in a 96% rejection rate of asylum applications and a massive backlog of appeals and reviews – around an estimated 190,000. This has kept some asylum seekers in the asylum system without a final decision of their case for as long as 19 years.
While their claim is being processed, asylum seekers are supposed to be issued with official documents saying that their application is being considered and confirming that they are officially in the system. These documents are essential for getting treatment in public hospitals, registering in schools and accessing formal employment. However, Amnesty International found that asylum seekers were frequently not issued with the required papers.
“Without formal status or proper documentation they are unable to work legally, or access healthcare and education. This can leave them destitute and vulnerable to harassment, arrest and detention.
“Rights protection should be the bedrock of any asylum system, yet asylum seekers' rights are being violated as they are left in limbo, often for years on end. This flagrantly undermines the intentions of the Refugees Act as well as the South African Constitution, which protects the rights of every individual in the country," said Shenilla Mohamed.
“It’s shocking that a country such as South Africa trivialises the vulnerability of those fleeing desperate circumstances.”
Further findings in the report include:
The asylum process is not explained properly to asylum seekers when they arrive at the refugee reception offices (RROs), and translation is either lacking or of poor quality. Asylum seekers have recently fled their countries of origin and many are unable to speak and understand English, which puts them at a major disadvantage in being able to claim refugee status without prejudice.
This is compounded by the fact that most asylum seekers do not have legal representation to assist them with their claims if they are rejected – only around 10% have access to lawyers.
A major and worrying proposed change in legislation is the establishment of asylum processing centres at the northern border posts where asylum seekers will be ‘accommodated’ while their asylum claims are considered. Contrary to South Africa's current refugee law, asylum seekers held in these centres will not have the automatic right to work, conduct business and study while their status is being determined. However, there is silence around how these processing centres will be resourced. That is, how asylum seekers and their dependants will access education, housing, food and medical care. The current system is cheaper compared to the cost of the proposed camps.
Further to the immense backlog of appeals and reviews, closure of three of the urban RROs, in Johannesburg, Port Elizabeth (PE) and Cape Town (CT), has put additional strain on the asylum management process, and has had dire consequences for many asylum seekers who have to travel great distances to their nearest RRO to remain documented. The closure of the RROs in PE and CT have been challenged in court since they were closed in 2011 and 2012. Long court processes resulted in the PE RRO being reopened in October 2018, but the CT RRO remains closed despite a Supreme Court of Appeal order that it be reopened by 31 March 2018.
Amnesty International is calling on the South Africa government, in particular the Department of Home Affairs (DHA), to ensure a safe, fair and efficient asylum management process and to create a united South Africa that welcomes those in search of safety. It should also comply with court orders to reopen the Cape Town RRO, and effectively resource all of the RROs and ensure that the refugee status determination process is administratively and procedurally just and fair.
“The words and actions of our leaders matter. And we are further calling on them to stop promoting divisive political narratives and start uniting people around shared values that build a more inclusive society. Political and cultural leaders must be held accountable for irresponsible and divisive political narratives that fuel xenophobic violence,” said Shenilla Mohamed.
Amnesty International South Africa embarked on research in 2018 to gather its own data on the experiences of asylum seekers attempting to exercise their rights to seek asylum and remain regularized in South Africa during the determination of their asylum applications. Amnesty spoke to 88 people through focus group discussions and one-on-one interviews in four locations: Cape Town, Port Elizabeth, Johannesburg and Durban.