Home affairs department fails to serve citizens and non-nationals

The services provided by the department of home affairs are of primary importance to everyone residing in South Africa, both citizens and non-nationals. It is crucial to have a functioning department that can handle the civic needs of citizens and non-nationals. The department’s failures are well-documented and well-known to any South African who has tried to apply for an identity document, passport, or register their child’s birth. 

It has become an accepted norm that one may have to take time off from everyday commitments to queue outside one of the department’s offices for hours. Even then, assistance is not guaranteed. On most days, the system is down and only a handful of people can be assisted. Repeat visits to a local department office are a norm before successful assistance can be received.

While the relationship between the department and South African citizens has proven to be a frustrating challenge for most, its relationship with asylum seekers and refugees is in a worse state of atrophy. South Africa is arguably a major destination for displaced people seeking refuge, and economic migrants as well. As such, the country needs a proactive and progressive department to address these different immigration needs. 

According to the United Nations Refugee Agency (UNHCR), South Africa currently hosts about 77 000 recognised refugees and 187 000 asylum seekers. While the exact number of undocumented persons in the country is unknown, Statistics South Africa estimates that about 3.95 million people in South Africa are foreign born. This number includes “migrants of all types and is collated regardless of legal status”. This estimation correlates with the World Bank Group’s 2018 report that 3% to 7% of persons living in South Africa may be non-nationals. Given South Africa’s estimated population of 60 million, the implication is that between 1.8 and 4.2 million individuals may be of foreign origin. 

The department has a duty to facilitate, regulate and execute South Africa’s immigration laws and policies, and must do so in a manner that complies with the international laws it is signatory to, and with human rights standards. This has not always been the case. Through its refugee reception offices and accompanying services, the department has the power to accept, process and adjudicate applications for asylum. 

The department holds the key to the future of asylum seekers, refugees, and children born to them. While the laws and policies that govern asylum seekers and refugees in South Africa have been regarded as largely progressive, refugees and asylum seekers are increasingly facing difficulties in accessing their rights as a result of policies and practices that prevent them from regularising their stays. The closure of three refugee reception offices has also been central to this.

In 2011, the Johannesburg and Gqeberha refugee reception offices were closed with the intention of moving all refugee reception offices to border areas to speed up and streamline the asylum process — or so the department said. Asylum seekers and refugees who opened their files at these offices had to travel to Durban, Musina or Pretoria to renew their permits, go for interviews, or join family members to their files.  

Long distance travel is unaffordable to most in South Africa, including asylum seekers and refugees. Some will have to make the trip multiple times or stay around the refugee reception office for extended periods because offices may decide to assist specific nationals on a particular day of the week. The Gqeberha refugee reception office reopened after prolonged litigation but the Johannesburg office remains permanently closed.

On 30 June 2012, the Cape Town refugee reception office closed to new applications for similar reasons. Although the office remains open to existing asylum seekers and refugees, those who had not applied for asylum at the Cape Town office prior to 30 June 2012 are in the same position as those who initially applied in Johannesburg and Gqeberha. After prolonged litigation launched in 2012 by the Legal Resources Centre (LRC) on behalf of the Scalabrini Centre and the Somali Association for South Africa, the supreme court of appeal in 2017 held that the decision to close the Cape Town refugee reception office was unlawful and directed the department to re-open the office to new applications. Because of the department’s failure to comply with this order, and a fresh application being launched by the LRC on behalf of its clients, the Western Cape high court in 2021 ordered that the matter should be placed under case management, requiring the department to provide the court with monthly progress reports. The Cape Town refugee reception office remains closed to new applications. 

With the declaration of the national state of disaster in 2020, all refugee reception offices were closed to mitigate the spread of Covid-19, meaning that the immigration services available to asylum seekers and refugees were further limited. Although the department granted a blanket extension to asylum seekers or refugees whose permits expired during the lockdown, no provision was made for new asylum seekers to obtain documentation. 

In April 2021, the department introduced an online system through which existing asylum seekers and refugees could apply for a permit extension. This was an attempt to ensure that asylum seekers and refugees remain documented but many reported a lack of feedback on the status of their application or any acknowledgement whatsoever that an application was received. 

Asylum seekers and refugees are not new to the bureaucratic inefficiencies, poor infrastructure, and corruption of the department. The closure of refugee reception offices arguably implies a systematic attempt to reduce the asylum population by limiting service centres, and inadvertently overburdening remaining offices with applications. Some applicants have been waiting for recognition of their status for more than 12 years. 

The department’s failure to effectively provide immigration services has dire consequences for asylum seekers and refugees who are often left undocumented for months or years. They risk losing employment and accommodation and may be deported even if they have a valid refugee claim. When an asylum seeker is finally interviewed to determine whether they may be declared as a refugee, the chances of success are poor – 96% of applications are rejected, often based on “poor decision-making and lack of sound reasoning”.

In 2021, the department announced that the Refugee Appeal Authority — the administrative tribunal that considers applications rejected by the refugee status determination officer — faces a backlog of more than 153 000 applications. The auditor general has indicated that, should the department continue to operate as it does, it will take 68 years to address the backlog without factoring in any new applications. The consequence of the backlog is that many individuals entitled to asylum or refugee status are stuck without knowing whether they should build a new life for themselves in South Africa while they remain on the fringes of legality. 

South Africa’s Constitution guarantees the basic human rights of all people. Without documentation, these rights are illusory for many.

The views expressed are those of the author and do not reflect the official policy or position of the Mail & Guardian.

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Zimkhitha Mhlahlo
Zimkhitha Mhlahlo is an attorney at the Legal Resources Centre’s Cape Town office, working in the areas of education and legacy.
Charlene Kreuser
Charlene Kreuser is a candidate attorney at the LRC’s Cape Town office, working in the areas of education and legacy.

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