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M&G Online reporter
24 Jun 2015 11:14
Laywers for Human Rights has seen an alarming number of police operations aimed at closing down migrant-owned businesses. (M&G, Paul Botes)
Stereotypes and myths have largely informed South Africans’ views on issues of migration and foreign nationals. These myths perpetuate xenophobia in South Africa and are used seemingly as a basis for policy decisions around migration.
Extensive research by institutions such as the Gauteng City-Region Observatory (GCRO) and African Centre for Migration and Society has gone a long way in dispelling these myths.
Yet, despite the coherent and unbiased statistics that have emerged from this research, the government is using incorrect assumptions and stereotypes as justification for migration-related policies and actions.
This is manifest in arbitrary policing operations such as Operation Fiela-Reclaim, which focuses mainly on the arrest of thousands of foreign nationals under the guise of crime prevention.
Nongovernmental, non-profit organisation Laywers for Human Rights (LHR) has been challenging these warrantless searches in court.
Since the renewed eruption of xenophobic violence in January this year, many of these myths have re-emerged, among them the notions that undocumented migrants are stealing South African jobs and are a drain on our social assistance, education and healthcare services.
We take a look at the three most prominent myths about foreign migrants in South Africa.
Myth 1: Foreigners want to live in South Africa “illegally”David Cote and Jacob van Garderen
Operation Fiela-Reclaim has listed undocumented migrants as a priority area of the crime-fighting mandate issued by the inter-ministerial committee on migration. This has translated into police, army and immigration officials busting into people’s homes looking for “illegal immigrants” in the same way that they arrest and detain drug dealers and people in possession of illegal firearms.
This sends the wrong message that undocumented foreigners are just as much a social evil as drug dealers and thugs, and perpetuates the view that foreigners commit the majority of crimes in South Africa.
But what happens when the same people busting down doors to prevent crime are guilty of breaking the law? So far, the department of home affairs has been unable to effectively implement the Refugees Act or the Immigration Act and the new regulations, with many people who would otherwise be documented and captured in the system left with expired documents or denied access to home affairs offices altogether.
The myth that this group is made up of “common criminals” is not only inaccurate but dangerously misleading. It places the blame for government’s inefficiencies squarely at the feet of those desperate for its protection and powerless to access it.
First, corruption at refugee reception offices is rife. It permeates all areas of the process, from security guards to officials making decisions on refugee status. It is common knowledge that it can cost thousands to renew an asylum seeker permit, and even tens of thousands for refugee status.
Attempts to address these allegations of corruption with the department’s counter-corruption unit have been less than satisfactory. Their attempts at catching officials who ask for bribes often leave criminal syndicates with free rein, although some offices are better than others.
Second, the enforcement of fines for expired permits, or so-called “overstay”, is clearly unlawful and no attempts have been made by the department to rectify it. At present, if your asylum seeker or refugee permit has expired, you may be subject to a R1 000 admission-of-guilt fine under the Refugees Act. What has transpired, however, is that, unlike a traffic fine (which is governed mostly by the same rules), you are not allowed your day in court.
Rather, the immigration officer gives you a statement and tells you to go to the police station to charge yourself. Once there, the police often refuse to issue the proper form to allow you to contest the fine. That means if you don’t have R1 000 in cash, you will be turned away. Home affairs refuses to renew permits until the fine has been paid. This violates the right to approach a court, to be presumed innocent under the Constitution, and the rights under international law to document refugees within the country. If you are new to a country and aren’t aware of your legal rights – as is the case in many instances – this becomes a harrowing process.
This is an illegal way of conducting fines and will likely result in yet another court application to have it declared unlawful.
Third, home affairs has closed half of the refugee reception offices in the country to new applicants, despite several court orders declaring this unlawful. This means that no matter where you live, you must attend one of the offices in Pretoria, Durban or Musina, which leaves the lower two-thirds of the country with no asylum services.
If your community and/or support structure is in Cape Town, you must pay hundreds of rands (thousands, if you have a family) to travel to a refugee reception office to have your permit renewed every three to six months.
You have to renew your permit at the same reception office that you first applied for it. Then you face the corruption or fines or general violence that often greets newcomers in strange cities. Not to mention the amount of time you need to spend waiting to enter the office to apply. Each of the office closures (in Cape Town, Port Elizabeth and Johannesburg) were found to be unlawful by various court orders. Yet they remain closed and are the subject of protracted litigation, which has now reached the Constitutional Court.
The only remedy for these failures of the system (other than a complete change in position by our political leaders) is to approach the courts and seek orders declaring such conduct unlawful.
Unfortunately, home affairs is notorious for flouting court orders, something we see on a frequent basis. In the last month alone, LHR has been forced to approach the court no less than three times on an urgent basis just to gain access to clients being detained at the Lindela Repatriation Centre under Operation Fiela. When presented with these court orders, the typical response by officials is that “they shouldn’t have agreed to that”. But, frankly, it doesn’t matter what they think. It’s a court order. Comply or face the penalty of the law.
These are just some of the problems facing foreign nationals in South Africa. The vast majority would not choose to remain undocumented, because that means being unable to access basic services such as healthcare and education. It creates vulnerability and an inability to integrate migrants into communities.
There will be those who do not wish to be documented, it’s true. But for as long as Operation Fiela continues to focus on the wrong group, resources meant for proper law enforcement are misused and, in the end, wasted. Home affairs must become a law-abiding citizen before it can claim to be “sweeping” the streets of criminals.
David Cote heads the Strategic Litigation Programme at Lawyers for Human Rights. Jacob van Garderen is the national director of LHR.
Myth 2: Foreigners are “stealing” our jobs Anjuli Maistry
As a tool used in the heyday of apartheid, die swart gevaar or the “black threat” was enormously effective. The term was borne out of a carefully constructed, false National Party ideology aiming to firmly position and militarise white minds against the larger black population. The imprint of this ideology was so successful that in many ways it continues to dominate South African life. Most recently, we have seen it manifest itself as the “threat of the African foreigner”.
The perception that there has been a massive influx of African foreigners into South Africa who are “stealing our jobs” has become the most common refrain used to justify the horrific attacks that we have seen inflicted against African foreigners.
There is no evidence to suggest that foreigners dominate either the formal or informal employment sector. The GCRO, a research institution charged with building a knowledge base for the government and others, this year released data on informal sector enterprise and employment in Gauteng. The brief revealed that “of those who operated an informal business [in Gauteng], 82% had been born in Gauteng or migrated to the province from elsewhere in South Africa”. As little as 18% of informal business owners in Gauteng are foreign-born – a number that should be considered generous, given that Gauteng has the highest proportion of foreign workers in South Africa.
Commenting on the data brief, author Dr Sally Peberdy said fewer than two out of 10 people who owned a business in the informal sector in Johannesburg were foreign nationals. Nationally, the numbers are even lower. In a 2014 study, the Migrating for Work Research Consortium found that only 4% of the working population could be classified as foreign. Whereas those migrants were more likely to be employed than South Africans, they were mostly employed in the informal sector, in precarious circumstances, without the benefits (such as access to labour protection) attached to formal employment.
Other little-known facts include how we, as South Africans, benefit from migrant-owned businesses. The GCRO brief found that of the 618 migrants interviewed who owned businesses, 31% rented property from South Africans and an even larger percentage employed South Africans – 503 in total.
Seen through a governmental policy that is slow to acknowledge the rights of refugees and asylum seekers to work and trade in South Africa, and which works to prevent these rights from being realised, there is little that gives this new incarnation of die swart gevaar and its corresponding myths any credence. Despite being entitled to live and work in South Africa under our refugee laws, refugees and asylum seekers are routinely discriminated against in their attempts to enter into and trade in the informal sector.
Refugees and asylum seekers endure the barrier of being unable to obtain business licences, and are sent from pillar to post in attempts to secure documentation, which is often later found to be unnecessary for the purposes of running a small business. The few who are able to obtain licences often find themselves the victims of unlawful shop closures by the police.
In this context, LHR has seen an alarming number of police operations aimed at closing down migrant-owned businesses. There is little regard for the rights of asylum seekers and refugees to work, to be self-employed and to trade.
LHR recently represented hundreds of refugees and asylum seekers whose businesses were closed down unlawfully in the province of Limpopo. The matter reached the Supreme Court of Appeal, which tellingly stated that “one is left with the uneasy feeling that the stance adopted by the authorities in relation to the licensing of spaza shops and tuckshops was in order to induce foreign nationals who were destitute to leave our shores”.
Despite clear legislation and the appeal court ruling that foreigners are allowed to work, foreigners still struggle to obtain business licences, while foreign-owned shops continue to be closed down unlawfully.
We have to work actively to dispel the damaging myths that breed xenophobia and the idea of the “dangerous” African foreigner. If the justification for xenophobic violence remains centred on the idea that African foreigners are “stealing our jobs”, and with the knowledge that these perceptions remain embedded in our psyche, our social discourse and our realities for generations, we need to banish these myths, for that will literally save lives.
Anjuli Maistry is an attorney with the Refugee and Migrant Rights Programme at Lawyers for Human Rights.
Myth 3: “They only come here to take our healthcare”Patricia Erasmus
Chronic shortages, understaffing and a lack of resources plague our public healthcare system and the causes are multiple. But what impact do migrants really have on our healthcare system? Is it fair to blame the long lines, lack of medicine and exhausted staff on a marginal group of foreign nationals who are perceived as treating South Africa as “Africa’s clinic”?
And is it true that non-nationals are using up valuable medical resources that are “meant for” South Africans? Reality shows us that both of these myths are untrue – the lack of resources cannot be attributed to a massive “tide” of migrants who have swamped South Africa to the detriment of citizens. Numbers of non-nationals are surprisingly small. Moreover, the concept of healthcare being “meant for South Africans” only is not justifiable in law.
A large part of the resentment can be traced to a misunderstanding of the law on healthcare. It may be easy to assume that non-nationals “flood” South Africa simply to take advantage of a healthcare system that, although not perfect, is superior to many on the continent.
What this perception misses is the complexity of reasons that lead migration on our continent. For example, LHR frequently assists members of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community who face persecution simply because their home country criminalises their sexual orientation, young mothers facing indiscriminate violence from Al Shabaab and child soldiers terrorised by Boko Haram. These are a few of the situations facing refugees who are desperate for South Africa’s protection through no fault of their own.
Nobody gets to choose whether they get sick. Should their status as non-nationals preclude them from life-saving treatment? Of course not. Interestingly enough, South Africa is host to a rather limited number of refugees – the United Nations High Commissioner for Refugees estimates that about 65 700 refugees were in South Africa in July 2014, with about 244 000 asylum seekers pending determination. Comparing this to the estimated 53-million South Africans accessing healthcare services, the impact of refugees and asylum seekers is minuscule.
In a 2014 report, African Centre for Migration and Society researcher Jo Vearey concluded that the foreign-born community in South Africa is about 4% to 7% of the overall population. The belief that the majority of foreign nationals live in Gauteng is also misleading. Vearey recorded that in Johannesburg, South Africa’s economic hub, only 9% of the population were foreign-born – hardly a convincing argument that migrants are “flooding South Africa”.
We have seen an increasing resistance to treat non-nationals, often with disastrous consequences. LHR has been compelled to go to court numerous times to access these very basic rights. Are frustrations with service delivery by the South African government resulting in a disproportionate desire to exclude non-nationals, even when their lives are at stake? And what exactly are the duties of the South African government when it comes to treating non-nationals?
The Gauteng health department last year released draft guidelines for treating non-nationals. These included the provision that these patients should be charged in full before they can be treated. Although the guidelines entitle everyone to emergency medical care, no mention is made of pregnant women or children under the age of six.
LHR has dealt with several cases in the past year to do with hospitals refusing to provide emergency medical care to foreign nationals. A noteworthy example includes a 12-year-old Somali girl who urgently needed heart surgery to save her life but was turned away because she could not pay the full amount. Fortunately, LHR were able to intervene and get her the help she urgently needed, though not without a severe backlash from the South African public, which echoed these xenophobic statements. Others were not so lucky. LHR was assisting a young man who collapsed outside our Pretoria office. He was suffering kidney failure and urgently needed dialysis to save his life, but he died before we could reach the court to compel the healthcare services to uphold his constitutional rights.
We have to empathise with some doctors and surgeons who have to work under this xenophobic system. Some healthcare professionals encountered by LHR have been willing and eager to assist, but bureaucratic red tape prevents them from doing so.
A few facts are essential. Legally speaking, our Constitution and accompanying legislation guarantees that a person may not be turned away from emergency healthcare, primary healthcare, maternal healthcare or medical care for a child under the age of six. This means that recent incidents of clinics and hospitals turning victims of xenophobic violence away are morally reprehensible and entirely unlawful. Similarly, incidents where mothers in labour are told to “first pay R5 000” before admission are equally unacceptable.
There is something more concerning than the brazen illegality of refusals to treat. There is an underlying xenophobic attitude reported by our clients. Women have reported confidentially to LHR that they are sometimes slapped while giving birth, told to “hurry up” and asked why they are “having their ugly babies with big heads in our country”. Victims of xenophobic violence have been told to “go away” because “this clinic does not support foreigners”.
What these stories tell us, in the harshest manner, is that although South Africa’s Constitution and legislation recognises the inherent value and dignity of every human life and does not place any lesser value on the life of a non-national, the healthcare sector appears to stray far from these principles. As we have seen, accessing healthcare in South Africa as a non-national is often a game of Russian roulette.
Patricia Erasmus is head of the Refugee and Migrant Rights Programme at LHR
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