The Green Paper has been presented as relatively benign by Home Affairs Minister Malusi Gigaba. He speaks about “efficient, secure and humane approaches”, but the Refugee Amendment Bill also suggests that our policies, rather than becoming more progressive, are going to be more draconian.
Doctors Without Borders, among other organisations, is concerned, for instance, that there will be fewer refugee reception centres and that these will be located only at the borders, giving asylum seekers a mere five days in which to apply before being deported. What are your views? Is Gigaba sugar-coating the government’s true intentions?
LL: There is a more general shift within the Green Paper which concerns me: the shift of migration management from an administrative to a security matter. This is what they term a risk-based approach.
So while we worry about narrowing access to asylum, this is but one of the many potential threats we’ll see to relatively poor migrants from the region and elsewhere.
Were the proposals to include a strong commitment to an SADC-wide work permit or integration of the labour market, I would have less trouble with the restrictions placed on accessing the asylum system.
While there is some discussion of re-engaging with SADC processes, the government is unlikely to achieve a mechanism where people can come and work safely and legally in South Africa.
In this context, what narrowing access to asylum will do is simply drive people underground and maximise the negative effects for migrants, asylum seekers, and South African workers.
JS: Some analysts have said that the Green Paper’s real target is the economic migrant, who is seeking better opportunities, rather than fleeing war. Indeed, our 17-year-old migration policies might have been somewhat ambitious, but don’t economic migrants arriving here with very little have as much right as those who can invest, to apply, without being subjected to onerous conditions while they are doing that? This feels class-based.
LL: The target in this document very much is the regional economic migrant – I have little doubt about that.
This is in line with the populist and exclusionary politics we’ve seen growing in South Africa and elsewhere in Europe and the US.
As it stands now, few people from the region have legal channels to access the South African labour or business market. The result has been an underclass of undocumented workers and people seeking papers through the asylum system.
South Africa wants to close these channels as a way to appease citizens who remain jobless or underemployed. While this is an understandable impulse, it is premised on the mistaken idea that migrants are behind the paucity of jobs.
JS: The proposed new migration regime indicates that asylum seekers would lose their right to work, trade and study here. Please explain your reading of it?
LL: South Africa is unusual in granting asylum seekers the right to work, trade and study. In most countries, people can only access those opportunities if they have been granted asylum or refugee status.
In some ways, this policy is just bringing South Africa in line with international standards.
That said, the challenge has been that asylum seekers often go years, sometimes decades without getting a decision on their claim.
If that remains the norm, people will be left with no option but to act and work illegally.
JS: It seems Gigaba is expressing the broader fears of some South African communities when he refers to refugees and asylum seekers being confined to “processing centres” near the border, in future, where “their basic needs will be catered for” while they are kept from “integrating into communities”. What’s the political imperative for Home Affairs? It sounds threatening, rather than in keeping with the treaties we have signed around protecting the rights of refugees. Is this a deterrence method?
LL: As far as I know, the state is well within its rights to detain asylum seekers at the border as long as it does so in a dignified manner. There may be legal challenges to be made about what constitutes dignity – conditions, duration, legal representation, and so on, but I don’t see the move as illegal, per se.
However, what I do believe is going on is a kind of populist nationalism: an effort to assure a disaffected population that the government is on their side; doing something to protect them.
Keeping asylum seekers at the border will, of course, do little to promote employment, security or social cohesion, but facts rarely hinder populist appeals.
JS: What are your views on the “third-country” rule, which, it seems, Home Affairs may now begin to properly enforce.
LL: There is little legal basis for South Africa’s efforts to "share the burden" with neighbouring states. That said, European deals with Turkey and American deals with Mexico clearly point to international precedents for using third countries as de facto buffers.
What is perhaps most worrying about this proposal – and many others in the Green Paper – is the degree to which it is based on fantasies and a fundamental misreading of regional dynamics.
Even within their own framing, most people are moving for economic reasons. As such, creating systems to detain or hold asylum seekers elsewhere won’t work. People will continue coming to South Africa but under other guises.
JS: Gigaba is proposing a quota system for the poorest of the poor migrants, those who’re arriving in South Africa with nothing to offer but their physical labour. What’s your reading of this? It appears their new legal status would be precarious; certainly, they would not have permanent residence rights. You’ve said you’re sceptical of quotas, but have suggested a different form of new legal status is required for a mobile workforce.
LL: South Africans and the South African government is clearly concerned – perhaps rightfully – about labour competition in manual labour and hospitality. To that end, they have proposed limitations on undocumented or low skilled workers.
The truth is, these prohibitions are already there and unenforced. So the question for me is what they plan to do. Will there be employer sanctions or are they planning to rely solely on policing and border control?
If the latter, we are only likely to see a cheapening of foreign labour and more human rights abuses.
JS: Should we be encouraging refugees with skills or potential immigrants who can invest capital, rather than the lumpen proletariat? That feels in keeping with the US and, now increasingly, many parts of Europe and certainly Australia and New Zealand.
LL: I believe South Africa is in a position where it should be encouraging all immigrants with skills and capital – material, social, and human – to invest. This will require a shift in how we see the economy – as a static body with a fixed number of jobs – to one that can grow domestically and regionally in ways that generate more opportunities.
This may be a political hard sell after demonising immigrant ownership and labour, but it would undoubtedly offer aggregate benefits.
JS: Is the Green Paper legally compliant? Doctors Without Borders has said it will not be renewing its contracts with EU member states due to the EU’s essentially anti-humanitarian stance where countries may actually be paid to take their refugees back. Also, the shutting down of the Dadaab camp in Kenya could set a dangerous precedent.
LL: I don’t know that the Green Paper is a legal document in any sense of the word, so I don’t believe it needs to be compliant. The question is whether the rules and regulations that come from it are in line with domestic and international obligations.
If it were translated directly into law, as is, there would be multiple grounds for legal challenge.
JS: Is it likely a quota-based regime could be accompanied by more mass amnesties? What’s your view on the latter?
LL: I believe we should look at regularisation programmes, if only for pragmatic and economic purposes: people have invested and are contributing so why deport them?
However, such programmes may bring about a strong political backlash if not managed with great finesse.