Tighter immigration rules could increase tensions with SA’s neighbours

South Africa’s current immigration laws generally allow for free movement and are in line with international standards, but experts say the government’s plans to tighten controls at  borders with neighbouring countries will entrench perceptions that it is taking a more inward-looking, nationalist route.

South African scholars say the government has been steadily introducing restrictive immigration policies, which it argues are necessary to thwart security threats. But, according to Jo Vearey, director at the African Centre for Migration and Society at the University of the Witwatersrand, this is not supported by facts on the ground.

“There is a language around gangs [and] trafficking but we don’t see evidence to support that,”  Vearey said, adding that the government was also making it “difficult for people with lower skills to find ways to regularise their stay” in the country.

“For people who have critical skills, it’s also becoming difficult to gain work permits,” she noted, saying South Africa’s treatment of foreign nationals was an increasing source of concern for other countries.

In November, Minister in the Presidency Mondli Gungubele said the government had decided not to extend Zimbabwean exemption permits, which expired in December. He said holders of the permits would be given a 12-month grace period to apply for other permits, after which those who were not successful would have to leave or be deported.

The Covid-19 pandemic also highlighted South Africa’s tougher stance on  border control compared with other African countries, Vearey said. South Africa chose to close its land borders at the start of its Covid-19 lockdown, whereas in West Africa, for example, there was a much more fluid response to how people were able to move, which, in many ways, reflected the status quo in border management.

Generally, South Africa and Botswana have tended to lag behind countries in East and West Africa in terms of implementing immigration policies that promote much-touted regional integration, experts told the Mail & Guardian.

According to Dr Steven Gordon, a senior research specialist at the Human Sciences Research Council, the process of regional integration, which began in earnest in the 1970s accelerated in the early 2000s, making it easier for people in those regions to cross borders and earning them a reputation for having better immigration policies than Southern Africa.

“As part of SADC [Southern African Development Community] South Africa and Botswana [in particular] have always been very reluctant to deepen regional integration processes due to concern about population flow,” Gordon said.

“ [This is] because some of our regional neighbours are very dysfunctional states; usually for proper regional integration, states have to be more or less at similar levels. Zimbabwe and Mozambique are, unfortunately, very badly managed states with poor economies and their systems don’t work very well, which makes regional integration harder than it would be in … East Africa.” 

What is seen as South Africa’s weak response to xenophobia in its borders has led to a somewhat tense relationship, particularly with West Africa.

For instance, despite President Cyril Ramaphosa spearheading the African Continental Free Trade Area (AfCFTA) agreement alongside Kenyan President Uhuru Kenyatta and Nigeria’s Muhammadu Buhari, South Africa’s ultimately successful bid to have Wamkele Mene installed as the new secretary general of the AfCFTA Secretariat met with resistance from Abuja.

On a recent visit to West Africa, Ramaphosa spent time in meetings with his peers trying to soothe ruffled feathers over the treatment of foreign nationals in South Africa.

“In terms of a political will to commit to the regional-integration process, this has been shown a lot more in places like East Africa and West Africa, even though those countries have dealt with regional conflict which led to the huge refugee crisis. The South African government has sometimes bowed to anti-immigrant sentiment at home and lagged on regional immigration fearing the backlash from the public. Progress has been much slower,” Gordon said. 

“When South Africa became a democracy and embraced a majoritarian society, we entered into African politics in a way we had never done before, being an active member of the continent. Because of the size of our economy, we took a leadership role and made other African countries nervous about our potential to dominate politics and the economy of Africa. By tightening immigration laws and not punishing people for xenophobic violence, we deepened suspicion, particularly with our necessary rivals, such as Nigeria, and we were made to look less virtuous.”

Human rights lawyer Jacob van Garderen said that, despite all the rhetoric from those keen to keep foreigners out to “protect local jobs”, among other reasons, South Africa does not have an immigration crisis, but rather “an immigration management crisis”.

“We have not seen resources or seriousness by the government and, in particular, the home affairs department, to manage movement in a caring and precise manner,” Van Garderen said.

“We also have a crisis in policy — we have not integrated migrants into our broader policy framework. Housing policy is completely silent on migrants and so, as a result, our programmes don’t speak to realities in certain settings. Until now, the laws around the eviction of informal settlers has been interpreted to only provide shelter to South Africans. Because these policies and laws have not incorporated those immigrants affected, people tend to approach the courts, [which] play an important role in recognising the gaps in legislation.”

Experts agree that South Africa’s laws on refugees and asylum seekers are not “terrible”, per se, but there is systemic rot in its legislative framework that needs urgent attention.

In fact, compared with neighbouring Botswana — where refugees are detained for extended periods of time with very little assistance from the state — South Africa’s treatment of refugees is considered far more humane. Its refugee laws promote and protect human rights by making allowances for people to self settle, acquire refugee status and recognise the broader right to freedom of movement and access to socioeconomic rights. 

But Gordon said there were pitfalls in legislative practice, including corruption, institutional prejudice and limited resources to accommodate applicants. 

“Even though refugee law is in keeping with international standards, there is institutional prejudice from many home affairs agents, who view refugees in a derogatory way and display reluctance to help them,” he said.

“The implementation of refugee law is problematic. There are sometimes rules in government to try and make it harder for refugees to earn a living, which is not a good look if we want to present ourselves as a progressive, forward-thinking nation. Asylum seekers have to wait long periods to be approved for refugee status and sometimes they are denied refugee status for very arbitrary reasons.” 

Vearey added that South Africa tends to position itself as exceptional by claiming to have a high number of people seeking asylum — an assertion that is not supported by data. This fuels an anti-foreign narrative that feeds into the way policies are produced, she says.

To counter xenophobic tendencies, Kenya, which houses a much higher number of refugees than South Africa, invested in people who work and have expertise in xenophobia and the politics of indifference, Vearey noted.

According to Van Garderen, Uganda’s approach to its more than one million refugees and asylum seekers is also far more accommodating than that of South Africa. In Uganda, refugees are given prima facie recognition of status, with no waiting period, and have access to land. 

“Significantly, a country like Uganda, with a 10th of the size of our economy, offers a real protection to the refugee population 10 times the size of our refugee population, but there are significant differences,”  Van Garderen said.

“The profile of refugees in South Africa are refugees who fled from urban settings coming from different parts of the continent, not like in Uganda, [with] refugees who come from one pseudo country like South Sudan.”

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