The department of home affairs has proposed that the government review the international treaty concerning refugee protection, saying it was a “mistake” not to have curtailed socioeconomic rights extended to asylum seekers.
This is as the department has proposed the biggest overhaul of SA’s immigration in a generation, arguing the fiscus can no longer bear the cost of refugees.
“The government of the Republic of SA must review and/or withdraw from the 1951 convention and the 1967 protocol with a view to accede to them with reservations like other countries.
“The procedure involves depositing the reservations with the secretary-general of the UN,” reads the long-awaited white paper on citizenship, immigration and refugee protection, published on Friday.
The 1951 convention, colloquially referred to as the refugee convention, was initially drafted to meet the needs of refugees displaced by World War 2.
It was supplemented by the 1967 protocol relating to the status of refugees, which did away with geographical limitations of the refugee convention, making it germane to refugees across the world. Nearly 150 countries have agreed to be bound by the 1951 convention’s provisions.
Reservations
The department said the government dropped the ball by not having limitations on socioeconomic rights that would be enjoyed by refugees in the country when it signed up to the refugee convention — legally called reservations.
It gave examples of several countries that have imposed reservations that do not drain their coffers.
Angola and Uganda restrict the movement of refugees and limit their privileges.
Zambia has absolved itself of the convention’s requirement that refugees have the same access to elementary education as nationals, as have Zimbabwe and Mozambique.
Home affairs minister Aaron Motsoaledi said on Sunday that SA had acceded to the international conventions without the government having established a clear policy on migration.
“The government did not make reservations and exceptions permitted in terms of international law. This was a serious mistake on the part of the government,” he said.
He said SA did not have the resources to grant the socioeconomic rights to refugees and asylum seekers envisaged in the 1951 convention.
Repatriation
The home affairs department says in countries where the political situation has improved and the fear of persecution that refugees were running from has subsided, the department must be allowed to repatriate the refugees to their home country.
The department also recommends that refugee reception offices be located at ports of entry, in line with the resolutions from the ANC’s 55th national conference held a year ago.
The department said the immigration system is “weak and unworkable”, resulting in costly backlogs, and is open to abuse by criminal syndicates.
“There is an urgent need to completely overhaul the three pieces of legislation to meet the new challenges facing SA and introduce single legislation dealing with citizenship, immigration and refugee protection,” the white paper reads. “The decision-making process in respect of refugees and immigration should be reviewed, including bodies and officials clothed with the powers to take decisions in respect of refugee protection and immigration.”
The three pieces of legislation on the chopping block are the SA Citizenship Act 88 of 1995, the Immigration Act 13 of 2002 and the Refugees Act 130 of 1998.
The imminent repeal of the Immigration Act comes shortly after the Constitutional Court ordered in a landmark ruling that the state ensure suspected illegal immigrants appear before court within 48 hours, a right enjoyed by SA citizens.
The apex court in October gave the government a year to pass a new immigration law and ordered that Motsoaledi and his director-general, Tommy Makhode, pay out of their own pockets for a “dreadfully conducted” litigation.
Oversight
The Constitutional Court confirmed its 2017 ruling that two sections of the Immigration Act, which allow immigration officers to arrest and detain illegal foreigners without proper judicial oversight, are unconstitutional and invalid.
The department said that some of the institutional and structural impediments facing SA’s immigration regime flowed from the above-mentioned pieces of legislation, “which were enacted during the transitional period” and lack harmony among them.
“The policy and legislative gaps within the [department] have created a fertile ground for violent clashes between foreign nationals and citizens, including the emergence of belligerent groups, either siding [with] or against the current migrant system,” Motsoaledi said in the foreword of the white paper, adding that he wants to introduce the bill in parliament “without further delay”.
“Furthermore, there are organisations and individuals who are beneficiaries of the gaps in the migration system who have exploited the situation by entering the fray.”
The department is also proposing the re-establishment of immigration courts to avoid long delays in finalising matters, including deportations.
With Ernest Mabuza
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