Refugee amendment bill is a mistake

Aleck Kuhudzai and Deborah Won
Aleck Kuhudzai and Deborah Won of the Agency for Refugee Education, Skills Training and Advocacy (ARESTA). Photo by Tariro Washinyira.
Aleck Kuhudzai and Deborah Won

The phrasing of the Refugee Amendment Bill calls into question the commitment of the Department of Home Affairs to uphold its obligations under the UN Refugee Convention, write Aleck Kuhudzai and Deborah Won of the Agency for Refugee Education, Skills Training and Advocacy (ARESTA).

We have noted with dismay the proposed amendments to the Refugees Act 130 of 1998, in the Refugees Amendment Bill of 2015, gazetted on 6 August 2015.

International law states asylum seekers are not to be punished nor denied the right to apply for and be granted asylum on the basis of their illegal entry into a country that is a signatory to the Convention.

But the amendments seek to include further provisions relating to the disqualification from refugee status and the withdrawal of refugee status.

The amendments will exclude some people who are recognised as refugees, Rather than focusing on improving the efficiency of the asylum application process, this Bill aims to exclude those who are already recognized as refugees by expanding what constitutes as disqualification under the Act.

We are concerned with the narrow definition of the word ‘dependant’. Prior to this proposed amendment, there was no definition of the word, therefore meaning that the inclusion or exclusion of an applicant as a dependant was determined discretionarily.

The amendment now proposes that the words “unmarried minor, any destitute, aged parent of asylum seeker, and who is included by the asylum seeker in the application for asylum” be inserted to define a qualified dependant.

We agree it is both logical and acceptable that this definition excludes a minor who is married. However, we oppose that this definition only allows an adopted child or spouse to be recognised as a dependant if the adoption/marriage took place in the country of origin. This is a discriminatory and unreasonable proposal. Will dependants be denied a right to documentation merely because the adoption or marriage occurred outside their country of origin? These cases will certainly arise, and we believe such dependants should not be denied protection solely due to the location where the adoption or marriage occurred.

The criminal offences clause seeks to disqualify a person from refugee status if the person has committed a crime in the Republic that is listed in Schedule 2 of the Criminal Law Amendment Act, or that is punishable by imprisonment without the option of a fine.

While disqualification based on criminal activity, particularly terrorist activities or acts against the security of the government rendering protection, is acceptable and in line with the objectives of the Convention, the right to life supersedes other concerns and must be given heavy consideration. The right not to be sent home is premised on the notion that an asylum seeker and or a refugee will face either persecution and or death if returned against his will to a country of origin or of nationality.

Therefore, refusing protection to an asylum seeker based on the commission of an offence that does not amount to treason is a breach of international law and the Constitution.

Section 7 of the Constitution of the Republic reads: “This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.” ARESTA thus believes that disqualifying refugees from protection on the basis of the commission of an offence that is not against the protecting government is a gross violation of the right to life.

Disqualifying asylum seekers who have committed any offence against the Immigration Act, the Identification Act, or the South African Passports and Travel Documents Act is unfair. Numerous asylum seekers and refugees have committed such “offences” without choice, because of the inefficient asylum system that continues to be overwhelmed by backlogs. And again, this clause violates the foundational right not to be sent home that underpins the country’s refugee law.

ARESTA believes this clause is but another example of attempts by the Department of Home Affairs to frustrate and hinder refugees and asylum seekers from extending their permits. Other examples include the closing down of refugee reception offices, leaving only three functional offices in the country, as well as the arbitrary practice of requiring applicants to return to the original offices of application for obtaining extensions.

These practices have imposed enormous financial burdens on asylum seekers, and those without financial means cannot meet their extension deadlines and thus have expired permits.

In the case of Abdi v the Minister of Home Affairs, the judge lambasted the Department for failing to recognise and promote the rights of refugees and asylum seekers. The court held that “section 7 imposes the duty on organs of state- and thus on officials of the Department-to respect, promote and fulfil the rights in the Bill of Rights…it is obvious from the manner in which they dealt with the appellants that they had little regard to their fears for their safety should they be compelled to return to Somalia.”

The concept of designated ports of entry is a concern. To the best of ARESTA’s knowledge, the country signed and assented to the international Convention without reservations, which means that article 31 of the Convention is binding upon the state. It is inadvisable for the state to disqualify an applicant based on port of entry without considering the merits of the application.

ARESTA recommends that the department focuses on whether the asylum seeker is a bona fide applicant with a valid claim, rather than dismissing cases solely according to whether the applicant entered the country legally or not.

Aleck Kuhudzai is advocacy manager and Deborah Won is advocacy intern at Agency for Refugee Education, Skills Training and Advocacy (ARESTA) in Athlone. This is an edited version of submissions to the Department of Home Affairs on the amendments to the Refugees Act. Views expressed are not necessarily those of GroundUp.

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TOPICS:  Human Rights Immigration National

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