/ 27 May 2021

South Africa’s policy on migrants is inadequate and at odds with the Freedom Charter

Our government’s foreign and immigration policies are qualified by its constitutional commitment to human rights.
The human rights of migrants are not protected by the country’s legislation. (Frederik Lerneryd)

When the Freedom Charter was adopted in 1955, it was a declaration for a free and peaceful society. The charter proclaimed, ‘South Africa belongs to all who live in it’ and was rooted in the spirit of fostering cooperation, peace and a respect for equal and basic human rights for all people living in the country. But is there a place for the respect of African migrants’ human rights, 27 years into independence?

One of the major problems South Africa has is “inadequate migration management policies and border management processes”, according to the International Organisation for Migration.

The migration policy framework is influenced by three factors. First, the country inherited a reclusive policy framework from the apartheid era that did not accommodate migrants. According to Jonathan Crush, of the Migration Policy Institute, during apartheid, Africans who came to South Africa were not considered immigrants but rather temporary contract workers. The concept of immigrants was formally acknowledged in 1991 and migrants were only recognised formally in 1993, which opened up a way for them to be integrated in the country.

Second, the belief in South African exceptionalism —  that the country was different to the rest of Africa, having gone through apartheid and transitioned to a stable democracy in 1994 without support from other African countries — encouraged anti-foreigner sentiments, particularly of African migrants. The African Centre for the Constructive Resolution of Disputes (Accord) published survey results on xenophobia in 2011 and said post-independence, South Africans considered immigration to be unwanted. This was reflected in national policy — for instance, the Refugee Act to replace the Aliens Control Act of 1991 “took four years to draft and eight years to negotiate”.

Third, a 2019 migration policy study by Tove van Lennep, a researcher at the Helen Suzman Foundation, said it was believed that there was “not enough work and welfare for South African citizens” after 1994. This begged the questions, should migrants be permitted into the country and should their rights be protected when the country is failing to provide for its own citizens? 

As a result, migration policy has been restrictive since 1994, positioning migrants as one of the sources of crime in the country and therefore undesirable. Similar sentiments are echoed by Aimee Noel Mbiyozo, of the Institute of Security Studies, who notes that, “Home affairs is prioritising restrictive measures that disproportionately and negatively affect African migrants from the country’s immediate and regional neighbours”.

The Refugee Act of 1998 granted asylum seekers and refugees the right to work and to get an education. In 2002, the Immigration Act was passed and although it refined migration policy to ensure continued immigration of skilled labour, it introduced stricter border controls and placed responsibility on South African citizens to report foreigners in the country’s establishments such as workplaces and schools.

The amendments to the Refugee Act and the Immigration Act became more restrictive over the past two decades. For instance, in 2004, the amended Immigration Act allowed immigration officers to detain a person without documents without a warrant; in 2008, the Refugee Act amendment was expanded to protect children and spouses of migrants on one hand but removed their right to have the same basic education and healthcare provision as South African citizens. A fuller analysis of these policies is found in a 2019 publication by Van Lennep, Migration II: The South African Migration Policy Landscape.

In 2017, the amended Refugee Act limited the time migrants can apply for permanent residency from five to 10 years and introduced imprisonment as a punishment for expired asylum seeker visas. In the same year, the White Paper on International Migration was published, which withdrew the rights of asylum seekers to be employed, get an education and move freely in the country. 

Accord said migrants’ conditions have degenerated over the past 27 years with the increasingly restrictive migration policy coupled with poor social welfare characterised by rising unemployment, inequalities and poverty creating a seedbed for xenophobia.

But the 2017 White Paper on International Migration also took a pro-African stance to consider ways of integrating migrants under a national policy framework demonstrating political will to reform and enhance the rights of migrants. The first steps of this national policy were realised in March 2021 with the United Nations Refugee Agency and South African home affairs department signing an agreement to eliminate delays in processing and clearing the backlog of asylum seeker applications.

The South African government can bolster this policy move by delivering tangible results on the agreement — publishing the number of asylum seeker applications processed and dates of when they expect to clear the backlog, especially in preparation for the 27 October 2021 municipal elections.

Integration of migrants in South Africa is a large-scale endeavour that requires the government’s policy to be responsive to the changing times. The government must collaborate with civil society organisations and social partners, as well as the local and national media, to inform South Africans and migrants about policy provisions. Migrants can also air their concerns, which civil society organisations and journalists can bring to the attention of the government to inform policy reform.