South Africa’s Deliberately Flawed Asylum System: A Mechanism for Migration Control

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Photo Credit: Dylan Thomas / UKaid, Department for International Development / Flickr

Photo Credit: Dylan Thomas / UKaid, Department for International Development / Flickr

At a recent parliamentary hearing in Cape Town, an opposition member of parliament (MP) chastised the Department of Home Affairs (DHA)—the department in charge of migration—for boasting about how few refugees and asylum seekers were admitted into South Africa. The MP commented that unjust and unfair policies should not be a source of national pride.

Unfortunately, such policies have become important migration management tools in South Africa’s overburdened asylum system. The DHA relies on these methods to circumvent progressive refugee legislation enacted in 1998 during the post-apartheid era of democratization. Despite parliamentary and public support, the judicial branch has repudiated the DHA’s practices as unlawful. However, judicial rulings have had little effect on broader practices. Instead, the country’s migration policy has developed separately from its legal framework.

This divergence between policy interests and legal obligations developed in response to new migrant flows in a country having little prior experience with migration under the closed apartheid system. According to the United Nations High Commissioner for Refugees (UNHCR), South Africa was the top global recipient of asylum seekers between 2006 and 2011, in part because of deteriorating conditions in neighboring Zimbabwe. Many asylum seekers also fled political instability and violence in the Democratic Republic of the Congo and Somalia.

Rather than increasing its capacity to deal with the arrival of new migrants, the government targeted the migrants themselves, excluding them from the asylum system by restricted access, administrative irregularities, and legal reinterpretations. The result has been an inefficient asylum system that is plagued by rampant corruption, long queues that force asylum seekers to camp out for nights on end, and a deeply flawed status determination process that aims to reject all applicants and deny them refugee protection. The government has also removed asylum seekers from the country through detentions and deportations, many of which are extra-legal and effectively constitute refoulement —forced return to a country where asylum seekers may face persecution.

Zimbabweans remain the most highly represented nationality in the asylum system, but only three of 17,784 Zimbabwean asylum applications were approved in 2015. Recognition rates are not much higher for other nationalities. The DHA shows little concern over the deficiencies in the asylum process owing to its belief that most of those in the system are there illegitimately.

The administrative irregularities previously noted are of little significance to a government that characterizes asylum seekers as economic migrants, criminals, traffickers, and terrorists. Tautologically, these characterizations are deployed to underscore the effectiveness of an asylum system that rejects most applicants, while its procedures reaffirm the narrative that a large number of asylum seekers are illegitimate. By maintaining a 96 percent rejection rate and ensuring that large numbers of asylum seekers and would-be asylum seekers either lose or never receive documentation, the DHA successfully accomplishes its migration management goals. Reversing the notion of asylum as a source of individual rights protection, one MP complained that “the asylum system was being used as a tool to abuse South Africa’s culture of human rights,” further admonishing the DHA by stating that “human rights had limitations.”

Asylum seekers struggle even to access services at the refugee reception offices. In addition, their legal rights to obtain or renew asylum documents are subject to arbitrary decisions from officials. The decision denying refugee status is not based on an individual’s protection needs. This creates a fertile ground for corruption, as suggested by a recent study. Despite high demand and complaints of arbitrary service denials, the DHA has closed three of the country’s seven refugee reception offices, exacerbating existing problems and creating more space for corruption. The DHA views increased restrictions as an effective tool in a system that values rejection and exclusion. However, the DHA’s exclusionary focus blinds it to the correlation between the lack of appropriate documentation procedures and rampant corruption.

Ironically, these exclusionary policies are undermining the very goal of the government’s migration management strategy. The delinking of refugee status from protection needs has actually provided opportunities for irregular migration. Economic migrants without asylum claims can pay for refugee status, while those with valid protection concerns must either pay or risk remaining undocumented and in danger of deportation. By shifting the blame to the perceived illegitimacy of the migrants themselves, the government ignores the systemic corruption that has provided an entry path for the same economic migrants it is so singularly focused on excluding.

The government’s misplaced focus on the culpability of migrants, rather than on the deficiencies in its asylum management system, stems in part from a localized understanding of rights linked to the South African historical context. With the end of apartheid, excluded segments of the population became active participants in the state project and were entitled to claim rights from the state and share in its wealth and governance. But the government’s promise to lift its newly enfranchised population out of poverty has yet to be realized. Basic services, including housing, water, electricity, health care, and employment, are still inaccessible for large portions of the population. Migrants have shouldered much of the blame for these shortcomings and have been excluded from the state project.

Although the number of asylum seekers has declined (from a peak of 222,000 in 2009 to current levels of around 70,000), the government fosters the myth that throngs of foreigners take advantage of a permissive asylum system, contributing to the country’s socioeconomic ills and usurping the rights of South Africans. The government’s solution lies not in fixing the administrative failures of the asylum system, but rather in preventing foreigners from accessing the rights afforded them under this system – as well as increasing border controls, detentions, and deportations. These measures target the notion that migrants are abusing South Africa’s human rights framework and violating the rights of South Africans in the process.

Such framing of the asylum problem has implications that extend beyond the human rights of asylum seekers. The emergence of an inefficient and corrupt asylum system undermines public service, governance, and the rule of law. The existence of a government department no longer bound by legal guarantees, standard procedure, or administrative fairness creates the potential for the government to violate the rights not only of asylum seekers, but also of South African citizens. Moreover, the continued scapegoating of foreigners under a localized understanding of rights allows governance failures to continue unchecked, ensuring that the promises of the post-apartheid government will remain unrealized.

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Roni Amit is a Senior Researcher who joined ACMS in 2008. With a background in international human rights law, she holds a PhD in political science from the University of Washington and a Law Degree from New York University. Her research focuses on rights protection, administrative justice, legal processes ,and developments in the areas of refugee law and immigration detention and deportation.

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