Asylum seekers fear for their future in South Africa

Kopanang Africa Against Xenophobia (KAAX) has sent an open letter to President Cyril Ramaphosa and the Minister of Home Affairs, Aaron Motsoaledi, supported by over 40 civil society organisations, expressing their disagreement and fear for the implementation of the White Paper on Citizenship, Immigration, and Refugee Protection. It proposes many radical changes to migration and citizenship rights, including withdrawing from the 1951 United Nations Refugees Convention, commonly referred to as the “1951 Convention”.

The 1951 convention was adopted by the General Assembly of the United Nations in 1950 and has since been applied in international human rights law. A grounding and core principle of the 1951 Convention is that of non-refoulment, which prohibits a signatory government from returning individuals, by detention or deportation, to their countries of origin where they may face torture or other forms of harm. “Is South Africa prepared to disregard this principle?” reads KAAX’s letter.

This letter is written in response to the approval of the final White Paper on Citizenship, Immigration and Refugee Protection by cabinet and is expected to be gazetted. In his address, the minister of home affairs pointed to the lack of resources to ensure access to socio-economic rights for refugees and asylum seekers as the motivation for the intention to withdraw from the 1951 Convention. KAAX aims to build solidarity through action working with formal and informal workers, and people who are unemployed.

Kopanang Africa Against Xenophobia and the signatories of its letter believe African immigrants especially are being scapegoated for the failures and violence of the capitalist system.

A breach of international law

In an interview with Elitsha, Jason Brickhill, director of litigation from the Socio-Economic Rights Institute (SERI), described the White Paper as unconstitutional and said that it simply breaches international law. “It should never become law because it is inconsistent with the constitution and South Africa’s international law obligations. It is a form of ‘worst practice’ internationally – the most restrictive, anti-foreigner policy approaches available globally,” he said.

It is a myth that immigrants
contribute to unemployment

He also criticised the conclusion that the Department of Home Affairs has made which places refugees and asylum seekers at the top of the list of reasons why there is a lack of resources and a plague of unemployment and poverty in the country. “It is a myth that they contribute to unemployment. It is not based on any meaningful empirical data, such as the number of foreigners in South Africa and their impact on the economy and the public health and education systems,” said Brickhill.

Brickhill emphasised this by referring to research SERI conducted cited in their submission, which shows that immigrants actually create jobs and economic opportunities.

The influence of Afrophobia and Xenophobia

Xenophobia and Afrophobia are worrying prejudices that are defining the nation by exclusion. Brickhill argues that these have played a major role in influencing the White Paper. “The White Paper is based on many of the myths that are propagated in public, and not evidence, such as that migrants exacerbate unemployment and place a strain on the public health system.”

Brickhill continued: “One of the most glaring silences in the White Paper is on xenophobia. When SERI raised this and proposed that the White Paper should deal with xenophobia, the amended White Paper included the following statement in footnote 38:

“Yet SERI would like to believe that the problem [i.e., the socio-political tension between South Africans and foreign nationals] is xenophobic by South Africa. This is nothing but propaganda for SERI to acquire more funding from its international cohorts. SERI’s assessment is neither objective nor fair.”

The White Paper gaslights public comments expressing concern about xenophobia and still says nothing about the state’s plans to address xenophobia.”

Spokesperson for KAAX, Mike Ndlovu added that the government uses migrants in this way as distractions and scapegoats to detract from taking accountability for the failures to implement policies and strategies to address inequality, poverty, and systemic unemployment in SA. “The other systemic problem is that of corruption. Foreign nationals say that they are like ATMs for police and immigration officers who exploit their vulnerability by soliciting bribes because they are undocumented. But at the offices of Lawyers for Human Rights, we have testimonies of many asylum seekers and migrants who have the necessary documentation but are often kept in captivity in police holding cells until they pay a bribe to be released,” he said.

The future of asylum seekers, refugees, and migrants

If this policy is promulgated into law, South Africa will be violating the right to seek asylum and non-refoulement. “This means that people who are fleeing to South Africa as their nearest place of safety from circumstances of war or extreme violence or hunger, as is the case in Somalia and the DRC, or people fleeing Uganda, Ghana, and other countries on the African continent with increased repressive laws against the LGBTQI+ community will be placed in jeopardy” explained Brickhill.

SERI says that those fleeing repression based on their sexual orientation will be denied their right to seek asylum.

He implied that the White Paper will do nothing to adequately address the problems in the running of the DHA or the problems of poverty and unemployment and access to health care and education.

The letter also notes that the White Paper remains silent on how the systemic crisis of corruption and bribery within immigration and law enforcement agencies will be addressed, “as this perpetuates the cycle of mismanagement and distrust. The ills of apartheid cannot be blamed on migrants. Poverty in South Africa is a consequence of social engineering of apartheid and in order to address this the government has to have a clear plan with allocated resources to realise the rights for all who live in South Africa as enshrined in in the Bill of Rights. We should be uniting as the workers and poor in this country to hold our government to account,” pleads the letter