The Gauteng High Court’s judgment holding unlawful and setting aside the minister of home affairs’ decision to terminate the Zimbabwe exemption permit (ZEP) was delivered on the same day that the UK’s Court of Appeal determined that the UK government’s policy seeking to relocate certain asylum seekers to Rwanda was similarly unlawful.
These two cases relate to different categories of migrants. In the first to Zimbabwean nationals who have lived in SA perfectly legally for about 15 years under a special dispensation regime that grants them lawful stay; in the second to those recently arrived in the UK, typically by crossing the English channel in small boats, and seeking asylum or refugee status.
To qualify for asylum, an asylum seeker has to establish that they are someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Countries have different polices and procedures by which they make such determination.
In terms of the UK’s policy those asylum seekers who had passed through a “safe” third country, ahead of arriving in the UK, “may be treated as inadmissible and not substantively considered” for asylum status in the UK but instead removed to Rwanda for determination of their asylum status.
Worth noting is that then UK prime minister Boris Johnson said that the prospect of Ukrainian asylum seekers being sent to Rwanda was “simply not going to happen”. He later revised that sentiment to “Yes, in theory that could happen. But I think it’s very unlikely”. What is obvious is the large amount of discretion built into the policy. It isn’t hard to imagine the advent of a type of two-track system: where only those asylum seekers of African or Middle-Eastern descent are warehoused in Rwanda.
Those, however, weren’t issues before the Court of Appeal. And while the judgment is certainly animated by concern for the rights and safety of the asylum seekers — specifically that they not face risk of refoulement (being sent back to their home countries) or of torture or inhuman and degrading treatment — the decision ultimately turns on whether proper weight was given to relevant input in formulating the policy of relocating asylum seekers to Rwanda.
In particular, special regard should have been given to the views of the UN High Commissioner for Refugees (UNHCR) on account of their “special expertise”. The UNHCR had issued a rare unequivocal warning that there should be no transfers of asylum seekers to Rwanda, insisting that the arrangement was incompatible with the UK’s obligations under the 1951 Convention on the Status of Refugees.
Similarly, the Gauteng High Court — while concerned for the rights of ZEP holders — places at the centre of its judgment the quality of the decision-making of the minister of home affairs: in failing to invite or consider representations before a decision was made to terminate the permits and in failing to provide sound reason for his decision, he acted irrationally.
This concern for the quality of government decision-making — that it not be arbitrary or capricious; that it not give weight to wholly irrelevant considerations or disregard relevant, expert authority — goes to the heart of what is meant by rule of law. In reaching their decisions, both courts applied long-established principles of law, affirming a framework which looks to safeguard all our interests, not only those made most immediate beneficiaries of the judgments. There was no upending of settled precedent, no reaching for novel theories of law, no pushing the boat out on what is considered accepted legal authority in reaching these decisions.
Those who take exception to the SA judgment and what they say is its unfounded solicitude for ZEP holders’ fair process rights might pause to consider this: the UK court observed that “it is well-recognised that procedural fairness is a matter of peculiar importance in asylum cases”. How anomalous would it seem that those who have spent the past 15 years living perfectly lawfully here in SA be less entitled to make representations about a decision essentially amounting to their removal than recently arrived asylum seekers to the UK would have about decisions looking to remove them.
But these decisions aren’t worth holding together only for the particular legal questions which they seek to address but for the larger geopolitical realities to which they point. Both SA and the UK are destination countries many migrants seek to reach. Both would like to stem that flow.
In the UK’s case, it seeks essentially to outsource some of its humanitarian obligations by paying a third country, Rwanda, to assume those obligations instead. No-one is twisting Rwanda’s arm to do so. It seems to have confidently anticipated handsome remuneration for doing so through the Migration and Economic Development Partnership it has concluded with the UK, having also sought to partner with Israel on a similar scheme.
Accelerating climate crisis and its disproportionately calamitous effect on regions such as Sub-Saharan Africa is going to mean displacement of millions. The Economist magazine announced blithely in a recent editorial titled, “How misfiring environmentalism risks harming the world’s poor”, that the vast majority of displaced people will not cross national boundaries but simply move to the closest cities where “their lives are likely to become better. Urbanisation usually aids development, bringing people closer to schools, healthcare and well-paying jobs.”
It rings almost as if they’d said: “Let them eat cake.” The International Committee of the Red Cross warns that 96% of future urban growth will happen in the world’s most fragile cities, which already face a heightened risk of conflict and have authorities that are least capable of dealing with it. Some cities will be simply unable to sustain the influx, triggering additional impetus for flight.
While cross-border migration will not be the first choice of most migrants, it may inexorably be an inevitable choice for those displaced by climate crisis. These types of forecasts indicate that countries like the UK and SA are likely only to face increasing pressures as destination countries. And if the UK looks to address those pressures, in part, by dumping asylum seekers in places like Rwanda, and larger Europe intensifies a “fortress Europe”-approach, the pressures on SA and its already stretched resources will be menacing.
SA, for its own interests, and if it wishes to champion an Africa in which large swathes are not left behind, needs to take the lead in urging a new global framework to ensure equitable burden-sharing in respect of migrants, so that lives might be saved but also so that resources in developing countries aren’t completely overburdened. But for SA to be a compelling advocate of a fair global framework for the reception of migrants fleeing climate crisis, SA will have to itself model fair and just policies towards migrants.
• Nicole Fritz is the director of the Helen Suzman Foundation.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.