NGOs slam SA's immigration reform proposals

Civic and human rights organisations have slated government's mooted reforms of immigration laws, describing the proposals as "a threat to the security of refugees and migrants in SA".

Home affairs minister Aaron Motsoaledi introduced proposals to overhaul immigration system by publishing a white paper on citizenship, immigration and refugee protection last year. The white paper suggests a raft of changes to immigration laws including SA's potential withdrawal from UN Convention and Protocol on refugees and asylum seekers.

In their submissions made in response to a call for public comments, the South African Refugee Led Network (SARLN) and Lawyers for Human Rights (LHR) said SA's withdrawal raises significant concerns regarding the wellbeing of refugees and asylum seekers within its borders.

"This decision could have far-reaching implications, impacting not only the legal framework for protection but also the lives of those seeking refuge in the country," said SARLIN chairperson Abdikadir Mohammed. 

LHR's Sharon Ekambaram said that while the white paper acknowledges corruption, it neglects systemic failures, focusing on labelling migrants as "illegal." 

“Corruption in the border control systems and among officials impacts the efficient, unbiased and fair management of asylum seekers and refugees. The DHA [department of home affairs] should have a policy that considers the full range of migrant experiences. The current white paper does not do this. It does not adequately address the crises of corruption within the DHA. Instead, through the establishment of a special tribunal, it seeks to criminalise migrants and empower a small contingent of law enforcement agents to hunt, harass, and detain migrants,” she said. 

Ekambaram said the closure of refugee reception offices and the shift to digitisation is criticised as systematic xenophobia, affecting vulnerable refugees. 

“The white paper does little to address the crises of institutional xenophobia within DHA. The offered solution of aligning the Border Management Authority with the proposed new legislative framework will only serve to deepen the perceptions of migrants as criminals.”

The white paper proposed a repeal of Citizenship Act of 1995 which has been described as colonial relic with loopholes enabling refugees and migrants to acquire citizenship. Ekambaram said the proposal tends towards exclusion than inclusion reflecting the government’s intentions to continue “shrinking the state” and to exclude those who do not “belong”. 

The Consortium for Refugees and Migrants in SA executive director Thifulufheli Sinthumule warned that the white paper's suggested review/withdrawal from international agreements could harm SA's reputation. 

Sinthumule said the principle of Pan-Africanism which the home affairs proposes to deal with unlawful migration is something African states contradict. 

“They do this by undermining freedom of movement and perpetuating colonial divisions. Stringent migration laws aimed at vilifying migration within Africa stand in stark opposition to the core principles of Pan-Africanism. They impede freedom of movement, perpetuate colonial divisions and disregard the shared heritage and challenges faced by African nations,” said Sinthumule. 

Mohammed said there were vague references to statelessness in the proposed reforms, especially concerning unaccompanied migrant children. 

“DHA neglects to address a crucial gap in the law for documenting unaccompanied migrant children in alternative care who are ineligible for citizenship or refugee status,” Mohammed said. 

“The DHA reasons that ‘South Africa does not have the resources to grant the socio-economic rights envisaged in the 1951 Convention’ to which there is no evidence set out why South Africa lacks resources to cater for refugee’s socio-economic rights in the country. The white paper also fails to elaborate on how economic migrants would be accommodated in the country.”

The Helen Suzman Foundation acting director Naseema Fakir criticised the intention to strictly apply the "first country principle" for people seeking asylum saying it won't relieve SA of its obligation to asylum seekers. 

“While there is nothing in international refugee law that prevents countries from adopting some form of the first safe country principle, international law does not require states to do so. Moreover, it is unlikely that any state will ever be lawfully allowed to implement the first safe country principle without significant safeguards that protect individual refugees,” Fakir said. 

Fakir added that exiting the Refugee Convention and Protocol with appropriate reservations poses significant challenges, as domestic law requires parliamentary approval and the repeal of implementing legislation. 

The civic organisations agreed that the lack of capacity and staff would make it very difficult for the proposals containted in the white paper to be implemented properly. 

“The white papers’ calls for institutional reform, while laudable when considered on their own, distract from the DHA’s backlogs and incapacity – neither of which are addressed in any detail,” said Fakir.