Refugee and migrant rights experts have raised concerns about certain aspects of the recently published White Paper on Citizenship, Immigration and Refugee Protection – namely, the proposal that South Africa should temporarily withdraw from two international agreements on refugee protection.

The Department of Home Affairs gazetted the white paper on 10 November, calling for a “complete overhaul” of the migration ­system in South Africa. The public have until 19 January 2024 to provide comments.

The draft policy proposes that South Africa should review and withdraw from two international agreements on refugee protection – the 1951 UN Refugee Convention and the 1967 UN Protocol Relating to the Status of Refugees.

Read more in Daily Maverick: Motsoaledi advocates for review and temporary withdrawal from two international agreements on refugee protection

In a press briefing on the white paper held on 12 November, Home Affairs Minister Aaron Motsoaledi claimed that the South African government had not yet developed a clear policy on migration when it acceded to these UN agreements in 1996, and so did not make any of the “reservations” permitted under international law.

These reservations would have allowed the country to pursue limitations on certain socioeconomic rights for refugees, such as those linked to work, education and freedom of movement.

People are going to have absolutely no income. And if they have absolutely no income, they become the responsibility of the state.

“I think it’s a significant setback,” said Sharon Ekambaram, head of Lawyers for Human Rights’ Refugee and Migrant Rights Programme. “Our Refugees Act has been lauded as one of the most progressive in the world and it’s largely because of the fact that it… is located within urban integration as opposed to a camp-based policy.

“We’re seeing conflicts that last decades and so… the [UN Refugee Agency] talks about durable solutions.

“I think the starting point is to understand the crisis of possible displacement of people in the 21st century and what would be a humane response to that.”

Hollow threat

Professor Fatima Khan, director of the Refugee Rights Unit at the University of Cape Town, has suggested that the proposal to withdraw from the international agreements may be a “hollow threat”, as many of the potential reservations would be at odds with South Africa’s Constitution.

“[Motsoaledi] hasn’t stated which rights they are going to sign the reservations to. He knows… he cannot sign the reservations to a right that is… granted to people generally via the Constitution. If you, for example, say that we are going to… sign reservations to the right to freedom of movement, then that will be challenged because the Constitution allows for the freedom of movement of everyone present in the country,” she said.

A stairway leads to the lower levels and additional living quarters at the Central Methodist Church in Johannesburg’s CBD, where migrants have often found shelter. (Photo: J Countess / Getty Images)

Recognised refugees in South Africa are currently entitled to seek employment. Khan pointed out that limiting the right to work for refugees could end up costing the government more in terms of resources.

Read more in Daily Maverick: Hell Affairs

“If they signed the reservations to the right to work, then it means that you’re leaving people destitute. People are going to have absolutely no income. And if they have absolutely no income, they become the responsibility of the state,” she said.

“In South Africa, we don’t have the resources to provide refugees coming in with social assistance…

“If you took away the right to work [and] you couldn’t replace it with social assistance, then you have offended the dignity of these people.”

According to Ekambaram, the proposal to withdraw from the UN agreements and limit refugees’ socioeconomic rights needs to be seen in the context of “populist politics” and efforts to appease voters in the lead-up to the 2024 election.

This notion that we’re flooded with migrants is debunked by… the stats from our very own government.

“How we respond to this paper is really important… I would say that the ANC has failed in its role… as the government to transform South African society from the deep divisions and inequalities that were entrenched through the repressive laws of the racist apartheid regime…

“It can’t use empty promises of housing for all and jobs for all because it hasn’t delivered on that… And so let’s scapegoat the migrants, let’s blame the migrants for the systemic unemployment in the country,” she said.

Daily Maverick asked Motsoaledi’s spokesperson, Thabo Mokgola, about the issues raised by refugee rights experts. He said: “Minister Aaron Motsoaledi published the White Paper on Citizenship, Immigration and Refugee Protection for public comment… The so-called refugee protection ‘experts’ are welcome to make comments… Minister Motsoaledi is not prepared to entertain any questions which he inevitably will deal with when he receives the public comments.”

Systemic immigration issues

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

The 2022 Census released by Statistics South Africa indicated that there were about 2.4 million immigrants living in South Africa, about 3% of the total population.

“This notion that we’re flooded with migrants is debunked by… the stats from our very own government… Then the stats for refugees are about… 87,000 recognised refugees in our country and we have… just over 180,000 asylum seekers,” said Ekambaram.

In 2019, an Amnesty International South Africa report found that the rejection rate of asylum applications stood at 96%. The high rejection rate has contributed to creating a significant backlog of asylum seekers in the country, according to Ekambaram.

“There are a significant number of people who have been rejected who have very, very strong claims for refugee protection in our country and they have to go through the [appeals] process,” she said. “So, when people sit in this asylum system, they sit for up to 15 years with a temporary permit…

“The system is constantly blocked and people are living their lives in limbo… The real problem is with the failure of this department to implement the refugee policy.”

Even for foreigners who are not refugees there are many obstacles to entering South Africa legally, according to Khan. She observed that university students and academics often struggled to obtain permits to study in or visit the country.

“People give up… They just don’t come to conferences in South Africa any longer because the wait for a permit, the obstacles that are placed before them, are enormous. From a university perspective, I’ve felt that… it’s bad for our students and it’s bad for academia, but it’s also bad for South Africa,” she said.

Streamlining legislation

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 13 of 2002 and the Refugees Act 130 of 1998.

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

The white paper “makes radical proposals regarding citizenship… The Citizenship Act and the 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.”

Khan agreed that certain regulations within the various pieces of nationality legislation were outdated and contradictory, adding that the proposed streamlining of legislation was “not a bad idea at all”. DM

This story first appeared in our weekly Daily Maverick 168 newspaper, which is available countrywide for R29.

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