Dear President Ramaphosa
We, Lawyers for Human Rights, are addressing this open letter to you, as a youth of 1976 and as a trade union leader at a time when the only agenda was the liberation of our people and when the word refugee applied to many thousands of South Africans who fled the oppression of the apartheid regime and sought and found protection in other countries.
Now that you are president, we wonder whether you are aware of how poorly asylum seekers and refugees are treated in South Africa, and how the department of home affairs disregards not only the laws of South Africa and the values of the Constitution but also fails to comply with the United Nations and African Union refugee conventions, which South Africa signed after the fall of apartheid.
To mark World Refugee Day in South Africa, we want to detail for you the very many harmful, unlawful and cruel practices and policies perpetrated by the department against some of the most vulnerable people in our country.
Unlawful refusal to renew permits
Are you aware, for example, that there are hundreds of thousands of asylum seekers whose applications for refugee status have not been finalised, and that we are reported to have the largest backlog in the world? Many refugees have been in South Africa for more than five, 10, 15 years and longer. How is it possible that so many people are left in limbo for years on end?
Are you aware that these asylum seekers are required to return regularly to the refugee reception office, which is often many kilometres away from their homes, to have their permits extended while waiting year after year for a final decision? Files are not transferred from one province to another on request so, for example, some refugees have to travel from Cape Town to Musina each time.
More recently, since Minister Malusi Gigaba’s return to home affairs, the refugee reception office has increased a practice (already declared unlawful by the courts) of turning asylum seekers away on the extension date, giving them “appointment slips” or putting date stamps on the back of their permits for a week or month later, only for them to receive nothing but another appointment slip or stamp when they return, which often goes on repeatedly. Many are now walking around with torn and tatty outdated permits, a symbol of disregard, wilful disrespect and legal noncompliance.
As a result, law-abiding asylum seekers become undocumented, at risk of arrest and deportation and extremely vulnerable to widespread corruption and extortion of bribes by officials. Some have lost their jobs as a result, and others have been denied access to hospitals.
If you fail to return on the due date, which some who have become frustrated by the many unsuccessful attempts to renew their permits do, you will be required to pay an “overstay” fine at some point when you try to renew your permit. The fine is R1 000. Often you pay it but still you are not assisted.
The financial impact of this highly inefficient and irregular process is extreme. The emotional toll and impact on mental health is severely damaging, affecting the entire family.
We can send you a recording of an interview with an asylum seeker with a genuine refugee claim who has been in South Africa for 11 years. Since June 2017, she has been to the refugee reception office 15 recorded times in seven months to renew her permit, without being assisted. We can only weep with shame at how our constitutional values and the right to dignity are wilfully eroded daily.
Unlawful denial of the right to apply for asylum
Are you also aware, Mr President, that, since 2017, new asylum seekers, who arrive, as many do, without passports, are unlawfully denied the right to apply for asylum and are left undocumented and unrecorded in the country?
A passport is in practice a document of privilege for those who have the means to travel far. In circumstances of flight and war, there is no time or will to apply for a passport from the state you are fleeing from when your life is at risk. To turn away, for example, even asylum seekers from Syria, whose passports have been stolen outside the refugee office, where gangsterism is rife, and who have copies of their passports, reflects a dereliction of duty and an abuse of power.
The best interests of the child are ignored
Do you know that there are thousands of children who, as dependents of their parents, are automatically entitled to be documented as refugees or asylum seekers but they are repeatedly, sometimes for years, not assisted.
There is also a new trend, despite alternative verification processes in terms of the Act, of the department insisting on expensive DNA testing to prove parenthood, which leaves children undocumented as parents do not have the funds to pay for the tests. Many schools, pressured by home affairs, insist on children being documented and this causes great stress for the children concerned.
There are also children who have fled war zones, or lost their parents en route or in South Africa, who are unaccompanied, separated or orphaned, and who are turned away at the refugee office because they are unaccompanied minors. No effort is made to assist, to enlist social workers or to find solutions.
A high court ruling in 2013, which held that children must first and foremost be documented by the department has never been implemented and the matter remains on appeal. Why would the department not want to take any responsibility for these extremely vulnerable children?
Disregard of court orders
Many of the department’s practices have been declared unlawful and unconstitutional by the high court, which is in itself a cause for concern. But it is worse when these decisions are taken on appeal, while the unlawful practices continue.
Court orders are also ignored, as in the cases of the high court ordering the reopening of the refugee reception offices in Cape Town and Port Elizabeth.
Denial of the constitutional right to dignity and family life
Do you remember the apartheid laws that denied free choice in marriage? Do you know that home affairs refuses to allow asylum seekers their constitutional right to marry and has taken a court ruling that this policy is unconstitutional on appeal?
Are you aware that banks do not allow asylum seekers the right to open accounts because it appears that they are advised that, despite an asylum permit being lawful and valid, a section 22 permit means that the application has been rejected? Are you aware of how vulnerable this makes asylum seekers, and the vast number of personal and business thefts perpetrated against asylum seekers as a result of it being widely known that they keep cash?
Since Gigaba’s return, an inhumane policy has been reimplemented when asylum seekers receive their final decisions. We have an example of an asylum seeker who arrived in South Africa in 2003 and has been renewing his permit repeatedly since then.
In June 2018, when he went to renew his permit, he received a final written decision, purportedly determined eight years earlier, rejecting his application. He was immediately arrested and is currently detained, despite legal representation for his release. He has a wife and two sick children lawfully residing in South Africa.
Until Gigaba’s return, when an application was rejected, home affairs issued an immigration notice to depart, giving the asylum seeker 14 days to find legal representation to appeal the decision in the high court, or to make plans to leave the country — in this case, where he has resided for 15 years.
Since 1997, more than 12 reports have been published after visits and inspections by, among others, judges Edwin Cameron and Dikgang Moseneke from the Constitutional Court and by the South African Human Rights Commission, Doctors without Borders (MSF), People Against Suffering, Oppression and Poverty, and others. The 1999 South African Human Rights Commission Report into the Arrest and Detention of Suspected Undocumented Migrants noted inter alia the following:
1. If a society’s respect for the basic humanity of its people can best be measured by its treatment of the most vulnerable in its midst, then the treatment of suspected illegal immigrants, detailed in this report, offers a disturbing testament to the great distance South Africa must still travel to build a national culture of human rights;
2. South Africa is a sovereign state based upon a Constitution. Its democratic principles embody universal standards of human rights, and the rule of law in South Africa, therefore, must be upheld. That means that the government of South Africa must govern guided by the Constitution and the law. And the government must provide for law and order, including an immigration policy;
3. This report deals with the chronic pathology in the system … it appears that the immigration system does not now operate as it should. It has come to the attention of the public that people are wrongfully and unlawfully detained under the current immigration legislation; that the process of arrest and detention of would-be immigrants is arbitrary and, therefore, violates the rights of citizens and other residents; that corruption and bribery are rife; that those detained in cells in South Africa’s main awaiting-repatriation detention facility are often subjected to inhumane treatment and indignity;
4. If the composition of the population at the Lindela repatriation facility is anything to go by, it would suggest that only people of African origin are arrested and deported as illegal aliens;
5. This investigation established that problems relating to lack of due process do not stand in isolation from the perhaps more serious and often closely tied problem of police corruption;
6. It should also be pointed out that we found no white persons detained at Lindela. There is strong evidence that many citizens and legally resident non-citizens were more vulnerable to apprehension and detention under the current enforcement practices of the Aliens Control Act because they were black and darker- skinned. The current legislation and practices relating to its enforcement has thus created a situation under which the basic human dignity of all persons is potentially at risk, and is more particularly compromised for certain categories of persons;
7. In general, the reports of ill-treatment point towards a pattern of routine, if not systemic, physical abuse perpetrated against the detainee population; and
8. Although questions relating to the adequacy of minimum standards were specifically excluded from the survey, a number of those interviewed nonetheless indicated that they had found significant problems relating to the conditions at the Lindela facility. The three most common complaints were: lack of adequate nutrition, irregular or inadequate medical care, and systematic, forced interruption of sleep.
Are you aware, Mr President, that despite clear recommendations being made in report after report over the past 20 years, there is little if any improvement in the conditions of detention? It is clear that the home affairs department uses detention and deportation as an inhumane tool to manage migration in South Africa.
According to the department, there are almost no material conflicts in Africa.
Are you aware, Mr President, that 96 out of every 100 asylum applications are rejected and that many, if not most, of the decisions taken by refugee status determination officers reject the application for asylum as “fraudulent”. According to asylum- seeker management, the vast majority of rejected applicants are “economic migrants” and not refugees.
Asylum seekers who seek refuge in South Africa come predominantly from countries known for human rights abuses and/or countries with serious civil disorder — the Democratic Republic of Congo (DRC), Burundi, Somalia, Eritrea, Ethiopia, Syria and South Sudan.
We implore you to read some of the decisions made by the refugee status determination officers. Aside from the fact that many decisions are cut-and-paste exercises and extremely amateurishly prepared, often reflecting nothing of relevance to the claim, many decisions also disturbingly reflect that Africa appears to have no conflicts at all.
The DRC from which many refugees flee is reflected as having a wonderful Constitution and therefore a government that protects its people. The problem lies not with the government but only with “the rebels”.
The situation in Burundi or Syria is also just fine for people to return to, when that is clearly not the case.
Why is it that departmental officials appear to be biased in favour of leaders and regimes in Africa who are known to oppress their people instead of supporting our brothers and sisters from Africa who seek protection here? Why has home affairs no memory of our apartheid past and how badly people in government can abuse their power and oppress citizens in their own countries?
Call for action
We urge you, Mr President, to make an unannounced visit to the refugee reception offices and speak to ordinary asylum seekers about the way they are treated “like dogs” — spoken to dismissively, pushed and shoved, told to “go back to your country”, “there is no war in Syria”, kept waiting for a entire day, only to be turned away repeatedly, and subjected to endless requests for bribes before they are assisted.
The department is in crisis, operating in flagrant disregard of constitutional values, cripplingly inefficient and poorly managed, with reports of widespread bribery and corruption. There is no complaints mechanism or transparency and a total disregard of the Batho Pele principles.
Without changes at the highest levels, home affairs will continue to be a threat to our democracy and the values espoused in the Constitution.
The risks to our democracy emanate not only from theft of public funds but also from the flagrant undermining of the values of our Constitution. We urge you to use the mechanisms available to you as you have done in other cases of malpractice to ensure that, by 2019, we can celebrate South Africa’s contribution to supporting and protecting refugees.
Lawyers for Human Rights