When Minister of Home Affairs Aaron Motsoaledi announced the publication of the White Paper on Citizenship, Immigration and Refugee Protection for public comment on Sunday, he called for a complete overhaul of the migration system in South Africa. He further advocated for the country’s temporary withdrawal from international agreements on refugee protection.

The draft policy, which has been in the works for four years, is intended to provide a framework for the granting of residency and citizenship to foreigners, as well as for the protection of refugees and asylum seekers in South Africa. Cabinet approved the publication of the White Paper for public comment earlier this week.

Read more in Daily Maverick: Wholesale review of immigration regimen may see SA (temporarily) exit UN convention on refugees

“There have been consistent loud voices calling for effective policy measures and legislative interventions dealing with migration in South Africa. These voices grew louder as violent clashes between foreign nationals and citizens reared their ugly heads. Many groups for and many groups against migration are gaining momentum,” Motsoaledi said at a press briefing on Sunday.

The draft policy proposes that South Africa should review and withdraw from two international agreements on refugee protection: the 1951 United Nations Refugee Convention and the 1967 UN Protocol Relating to the Status of Refugees. According to Motsoaledi, when the South African government acceded to these agreements in 1996, it had not yet developed a clear policy on migration, including refugee protection.

As such, he said, South Africa did not make any of the reservations or exceptions permitted in terms of international law when it joined the agreements. These reservations would have allowed the country to limit the socioeconomic rights afforded to refugees within its borders.

“It is not surprising that South African courts developed jurisprudence regarding asylum and refugees, in the absence of reservations and exceptions, which is unfavourable to the interests of the government,” said Motsoaledi.

“The White Paper proposes that the government of the Republic of South Africa must review and/or withdraw from the 1951 Convention and the 1967 Protocol with a view to acceding to them with reservations like other countries.

“This White Paper proposal is not against the United Nations… We are saying that as a country, we need to press the reset button. It is us, not the United Nations, who in 1996… committed this error.”

Overhaul of citizenship, immigration and refugee policies

The policy framework proposed in the White Paper on Citizenship, Immigration and Refugee Protection is intended to replace three existing national policies:

• The Citizenship Act 88 of 1995;
• The Immigration Act, which is act number 13 of 2002; and
• The Refugees Act 130 of 1998.

“These pieces of legislation are not in harmony with each other. Piecemeal amendments were made without any policy framework whatsoever,” Motsoaledi said.

“The White Paper makes radical proposals regarding citizenship… The Citizenship Act and Births and Deaths Registration Act must be repealed in their entirety and be included in the single [piece of] legislation dealing with citizenship, immigration and refugee protection.”

The minister of home affairs should be empowered to declare an asylum claim made by an asylum seeker invalid if that person travelled through an alternative country that could have offered protection before reaching South Africa.

He added that the Border Management Authority Act would also need to be reviewed to align it with the new policy framework.

While Motsoaledi acknowledged that the Department of Home Affairs had “no idea” how many illegal immigrants there were in South Africa, he said that Immigration Services deported between 15,000 and 20,000 illegal foreigners each year.

Among the proposals in the White Paper were that the powers of immigration officers and the Inspectorate for Immigration Services be strengthened; and that an independent Immigration Division be established to deal with the granting of visas.

Motsoaledi said the minister of home affairs should be “empowered” to declare an asylum claim made by an asylum seeker invalid if that person travelled through an alternative country that could have offered protection before reaching South Africa.

“This policy framework would discourage asylum seekers who deliberately fail to apply for asylum at the first safe country which is a signatory to the 1951 [UN] convention, the 1967 [UN] protocol and the 1969 [Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa],” he said.

Motsoaledi further claimed that the new policy framework would “deter economic migrants who come to South Africa disguised as asylum seekers”. DM