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Living in limbo

The failure of the Department of Home Affairs to deal with the vast backlog of asylum-seeker applications is resulting in unlawful mass deportations and escalating human rights abuses at the infamous Lindela Repatriation Centre, according to activists in the refugee rights field.

”You can have your paper [asylum-seekers permit] and your file number, [but] they will still keep you in Lindela,” exclaims Junior-Panda Badibanga bitterly. The 30-year-old asylum seeker from the Democratic Republic of Congo (DRC) was one of 57 people who claim they narrowly escaped unlawful deportation from Lanseria airport by the Department of Home Affairs following a series of brutal assaults on protesting inmates by Lindela staff last month.

Patience Ekutshu (31) says the protest started as a hunger strike by a group of DRC asylum-seekers who were objecting to being detained for periods of up to eight months in contravention of Section 34 of the Immigration Act, which prohibits detention for longer than 30 days without a court warrant.

Ekutshu had been issued with an asylum-seeker’s permit when he was arrested on June 9, but had left it in another pair of trousers. He was stopped by the police, who refused to allow him to go home to fetch it and took him straight to Lindela to await deportation. He says that even after his family brought his permit to the centre, officials refused to release him. ”For a long time, I told them I’ve got my paper. They don’t want to listen, they want only to keep us there, to treat us like I don’t know what.”

On July 4 the frustrated hunger strikers broke plates and windows in the dining hall. The retaliation was swift and brutal, says Ekutshu, who claims security officers and cleaners attacked them with batons and brooms. ”The way they were beating me, I thank God I am alive,” Ekutshu said.

Ekutshu, Badibanga and a third Congolese man, Franck Ntumba Lesha, are adamant that all inmates were sent to their cells and that Lindela staff went from room to room, in groups of 15 to 20, assaulting the DRC nationals, whom they accused of instigating the protest. Ekutshu said he was beaten so badly that he had to spend a week in the Leratong hospital.

Dosso Ndessomin of the Coordinating Body for Refugee Communities visited Lindela after the incident and says he saw 14 people who had been beaten, or shot with rubber bullets.

But Jody Kollapen, chairperson of the South African Human Rights Commission (SAHRC), who visited Lindela two days after the incident, was unable to comment on whether excessive force was used and said he saw only one patient in the centre’s clinic who had sustained bruising and circular wounds. He said it was impossible for the SAHRC to have a permanent presence at the centre.

Despite the protest, the repatriation process continued. Badibanga says that two weeks later he and 56 compatriots were bundled into a truck without being told where they were going.

”When I asked the immigration [officer] where we were going, he said we are going to Lanseria airport. You are going home now.”

They arrived at Lanseria at about 8pm and after waiting for about 45 minutes, Badibanga says, an official told them there was a problem with the private plane scheduled to fly them out and they were going to be returned to Lindela.

On August 3 the Wits Law Clinic and Lawyers for Human Rights, acting on behalf of the Refugee Ministries Centre, made an urgent application in the Johannesburg High Court asking for the immediate release of the group of men and for the processing of their asylum claims to be expedited. The court ordered the release of all 57 and the Department of Home Affairs was ordered to issue them with temporary asylum-seeker permits.

”What we have here is a pattern of behaviour by the Department of Home Affairs, who are acting with impunity against the provisions of the law, ” says Abeda Bhamjee, the Wits Law Clinic attorney who dealt with the matter.

Home affairs denies that there was any attempt to deport the men. ”They were taken to the Refugee Reception Centre (Johannesburg and Pretoria) and offered the opportunity to apply for asylum as requested. They were then released,” says spokesperson Nkosana Sibuyi.

Last week the department successfully deported 16 Burundian nationals after legal efforts to obtain an urgent stay of deportation failed, despite 14 of the 16 Burundians having been unlawfully detained for more than 30 days, according to the Wits Law CLinic.

The clinic and Lawyers for Human Rights have subseqently lodged a further application, asking the court to compel the department to create lists of all detainees held beyond the prescribed 30-day period as well as to produce copies of court warrants, which are required if an individual is to be held for more than 30 days.

Dr Emmanuel Ngenzi Nyarakashi, project coordinator for the Refugee Ministries Centre, says it is common practice for asylum-seekers and refugees whose papers are in order to be incarcerated at Lindela. He says no distinction is made between legitimate refugees, asylum-seekers and illegal immigrants.

”If they are deporting, they don’t see whose life is in danger, regardless of the claims of the individual’s case, they just deport them,” he says.

Papa Leshabane of Bosasa, the private company that manages Lindela on behalf of the department, acknowledged that an incident took place on July 4, but declined to comment on the alleged assaults on detainees.

”Bosasa is a sub-contractor to the department of home affairs and the protocol dictates that the department is the one to comment on issues relating to the facilities.”

Sibuyi confirmed that a report about the incident has been forwarded to the Minister of Home Affairs, but says no official investigation has been conducted into the incident. ”We want to stress it here that there are no recognised refugees detained in Lindela,” Sibuyi says.

”Some of these people were in the country on various other permits, like work or visitors’ permits, and when such permits expire they see [the] asylum system as another route to prolong their being in the country.”

But Nyarakashi says home affairs’s ineptitude in managing asylum-seeker applications leads directly to mass deportations and human rights abuses. ”The bigger part of the blame should go to home affairs, who fail to perform,” he says.

Kollapen says the situation is exacerbated by the fact that asylum applications cannot be determined by Bosasa or home affairs officials at Lindela, and people have to be taken out of the centre to have their status determined by refugee determination officers. ”This is not happening because Lindela claims it has no capacity to take claimants to offices where their status can be determined, and the department has no capacity to send refugee status determination officers to Lindela, so people are in limbo.”

Kollapen also believes that poor administration encourages fraudulent and baseless claims, which flood the system and prejudice legitimate applications for asylum.

The department is certainly bogged down by the number of applications for asylum-seeker and refugee status. A report issued by the National Consortium for Refugee Affairs (NCRA) in June this year found a backlog of 100 000 undecided applications for asylum dating back to 1998. And according to Sibuyi, the first quarter of 2006 alone saw 18 000 new applications.

According to the NCRA report an asylum seeker faces almost insurmountable odds in trying to navigate a complex and inefficient bureaucracy within strict time limits. Despite a project launched in March to tackle the backlog, financial and capacity limitations mean it is virtually impossible for asylum-seekers to adhere to the legislated time limits. Sibuyi says that, in addition to the backlog project, the department will increase the number of refugee reception offices and introduce hi-tech IT and queue management systems.

In the meantime, for the many asylum-seekers who face police harassment and a hostile bureaucracy, these plans are cold comfort. ”We are at a crossroads,” says Nyarakashi. ”Are we going to have to go to court for every case? It is expensive. Or are we going to fold our arms and let people get deported?”

Rights and recourse

Section 23 of the Immigration Act provides that anyone who enters the country and indicates a wish to apply for asylum has 14 days to travel to a Refugee Reception Office (RRO) in Durban, Cape Town, Port Elizabeth, Pretoria or Johannesburg to lodge his or her claim.

Section 22 of the Refugees Act allows the applicant to be granted a temporary asylum-seeker permit pending the outcome of the application. The Section 22 permit must be renewed every one to three months at an RRO, until refugee status is granted.

Section 34 of the Immigration Act provides that ”illegal foreigners” may not be held for a period exceeding 30 days without a court warrant, which may extend the detention for a maximum of 90 days on ”good and reasonable grounds”.

The section also provides that such persons shall be notified in writing of a decision to deport and of their right to appeal this decision.

Section 33 of the Bill of Rights in the Constitution gives all persons the right to just administrative action: ”Everyone has the right to administrative action that is lawful, reasonable and procedurally fair and everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.”

 

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Lynley Donnelly
Lynley Donnelly
Lynley is a senior business reporter at the Mail & Guardian. But she has covered everything from social justice to general news to parliament - with the occasional segue into fashion and arts. She keeps coming to work because she loves stories, especially the kind that help people make sense of their world.

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