Without doubt, South Africa carries a fair share of the burden of displaced persons. Since 2010, we have afforded work and study permits through sequential special permit regimes to 280 000 Zimbabweans seeking jobs here.
International law does not require refugees to seek asylum in any particular country. There is, however, the principle of “first country of asylum”, which directs countries to welcome refugees fleeing from persecution in a neighbouring state. This principle has developed so that, in practice, an asylum seeker who had the opportunity to claim asylum in another country is liable to be returned to the neighbouring country to have his or her claim determined there.
The UK unsuccessfully tried to invoke this principle during the exodus of Syrian refugees, returning them to first safe countries like Greece while shutting their borders to the newcomers who resorted to camping in the French city of Calais. Despite resource and capacity challenges related to managing migration, SA has not closed its ports of entry to asylum seekers. Consequently, much of our resources have been diverted to dealing with challenges arising from so-called “mixed-migration”.
This refers to migration motivated by a variety of reasons, including insecurity, persecution and better economic prospects. It also includes irregular (or illegal) migration, as well as the heinous practice of trafficking. Irregular migration is not benign to a mixed economy such as ours and the strain on the Health Department’s resources is evident in Gauteng, where most undocumented migrants are concentrated.
South Africa’s post-apartheid human rights orientation does not sit comfortably with the notion that poor people looking for a better life should be dealt with as criminals to be arrested and deported. South Africans understand and can relate to the plight of poverty and human aspiration to seek new pastures. However, our constitution itself is a law and an essential principle of any constitutional state is respect for the law.
Our Bill of Rights reserves the right to enter and reside in the country only to citizens. Everyone else is required to enter the country in accordance with immigration laws. If you enter illegally, you should surely not have an automatic right to remain in and have equal access to state resources. As a country we must strike a balance between our humanitarian values and our responsibility to ensure safety and security for all citizens, as well as migrants and refugees who comply with our laws.
This emphasis is increasingly being overlooked in subsequent court-made policy decisions. Notwithstanding the fact that a correct interpretation of the Bill of Rights would be to ensure no room for contradictions of its provisions, the state is increasingly being directed by the courts to afford rights to persons who have entered and remain in the country illegally. In this regard, it has previously been understood that the separation of powers doctrine retains the executive’s remit in relation to the deployment of state resources. Increasingly, the executive is made to give effect to court-made policies that have serious implications for the deployment of scarce resources and entail the reprioritisation of budgets determined by cabinet. In some instances, these court determinations result in the direct displacement of government policy.
Placing the refugee reception centres at the land borders in the north, is one such policy. The UNHCR Report on Protection delivered in Geneva on October 5 states: “UNHCR recognises the legitimate security concerns of states in managing their borders. Protecting refugees and ensuring security are compatible and even complementary goals. Protecting sensitive border management systems and effective screening and referral mechanisms allow for those persons in mixed flows who need international protection to be detected and referred to the appropriate services, while simultaneously advancing national security. The orderly processing of asylum claims enables states to be confident about who is on their territory and safeguards the rights of refugees and asylum seekers.”
Similar considerations prompted the governing party’s policy conferences since 2012 to affirm government’s intention to relocate the refugee reception centres to our northernmost land borders. Statistics and strategic analysis indicate that a new refugee centre at the border with Mozambique, together with the Musina Refugee Reception centre will be able to process most newcomers.
Given the blatant corruption experienced in the Port Elizabeth Reception Refugee centre in 2011, the director-general announced its closure to all newcomers. Likewise, a later decision was taken to close the Cape Town Refugee Reception centre to new asylum seekers. Resident refugees in both those cities would continue to be serviced by those centres operating leaner bureaucracies.
Due to court challenges by NGOs, our courts have ordered the Department of Home Affairs to re-open both centres to first-time applicants. Meanwhile, the department’s resources have come under strain, due to budget cuts. This means any further resources acquired by the DHA will have to be prioritised towards the re-opening of these centres, far from where most new arrivals enter the country. This deals a blow to the protection of asylum seekers and constrains the state’s attempts to contain illegal movement, undermining our collective security. This benefits neither our humanitarian values nor our aspiration for greater safety.
lChohan is the Deputy Minister of Home Affairs