Aspects of South Africa's refugee status determination process

Abstract

The Refugees Act 130 of 1998 enabled South Africa to treat asylum seekers in a humanitarian and dignified manner. However, more than 20 years into democracy, the refugee status determination system, which is the responsibility of the Department of Home Affairs (DHA) is overburdened with asylum applications. The core criticism against the DHA is its failure to finalize asylum application within 180 days. The key attraction of South Africa’s asylum regime is its non-encampment policy, which bestows on an asylum seeker the right to work or study pending the outcome of the asylum application. This mini-dissertation will not focus on challenges that asylum seekers and refugees may encounter when asserting a specific entitlement. The aim is instead to highlight red flags which will assist any interested party to have a basic understanding of what refugee status determination in South Africa entails. Although refugee status determination is an administrative process, South African courts have laid down jurisprudence confirming the following: (i) At the moment a foreigner expresses an intention to apply for asylum, he or she must be afforded the opportunity to do so; (ii) Illegal entry into the state do not bar application for asylum; (iii) Equality before the law affords asylum seekers suspected of being illegal the right to appear before a competent court within 48 hours of arrest; and (iv) Asylum seekers must apply for immigration permits from abroad. Differently put, an asylum seeker may not apply for a change in status, pending adjudication of an asylum claim in South Africa. To deter illegal migration to South Africa, the DHA has done the following: (a) It unilaterally closed the Cape Town and Port Elizabeth Refugee Reception Offices (RRO’s); (b) It established a Border Management Agency to dispense with adjudication of asylum applications at a border post or point of entry; (c) It granted special dispensation work permits to asylum seekers from Southern African Development Community (SADC) countries. Refugee status determination and dissecting a persecution claim may be perceived as two different enquiries. The latter enquiry is often the subject matter of statutory tribunals and courts during judicial review proceedings. This study explains the key functions of roleplayers, their different processes and inherent functions under the umbrella of refugee status determination. It is recommended that attorneys and non-governmental organisations be allowed to actively participate, from the inception stage, in South Africa’s refugee status determination process. This will minimise the life-cycle of an asylum claim which often ends in judicial review proceedings. This forces the DHA to be accountable, transparent and to reflect on its commitment to treat asylum seekers, refugees and foreigners in good faith and dignity.