The plight of millions of displaced people isn’t always top of mind for governments globally. It is therefore fitting that World Refugee Day is observed annually on 20 June to create awareness about the challenges these people face.

In the past decade, the South African government has shown signs of fatigue when it comes to protecting individuals seeking asylum in the country. It has been acting contrary to the commitments and promises entrenched under the Refugees Act 130 of 1998 that came into operation in 2000.

For quite a long time, domestic and international organisations, including the United Nations High Commissioner for Refugees, praised this piece of legislation as the most progressive in the world. The act was lauded because it sought to integrate refugees into South African society and to offer them the same constitutional socioeconomic protection enjoyed by citizens.

In a recent academic paper, I demonstrated how the government is distancing itself from its commitments and promises to take in refugees and asylum seekers as its own people and to protect them. Such a move can be linked to the global trend of asylum fatigue, which is exacerbated by a growing concern that economic migrants use the asylum system to enter South Africa to gain access to basic services and to get jobs, thereby presenting a potential threat to the preservation of national interests, including national resources, national security and public safety. 

Nowhere is South Africa’s asylum fatigue more evident than in the amendments to the aforementioned Refugees Act. With these amendments the government wants to make it difficult, if not impossible, for individuals escaping persecution and seeking asylum to enter the country, to gain access to its national resources, and to enjoy the refugee rights that are – owing to their universal nature – entrenched in the Bill of Rights. We fool ourselves if we think they are about closing gaps and shortcomings in the protection offered by the act.

In their article “Rendering South Africa Undesirable: Critique of Refugee and Informal Sector Policy”, Jonathan Crush, Caroline Skinner and Manal Stulgatis have also demonstrated how national authorities impose limitations on the ability of refugees and asylum seekers to find safety and security in South Africa. They argue that these limitations are gradually imposed “as an effort to make the country an undesirable destination for asylum-seekers and refugees”. South Africa is being made into an undesirable destination through frustrating refugees and asylum seekers by restricting their access to refugee protection and rights flowing from their refugee status. These restrictions have gradually diminished the significance of refugee rights.

The disappearance of refugee protection in South Africa can be better interpreted through the lens of social legal theory, which according to Alan Calnan of Southwestern Law School in Los Angeles, understands the law as “a social historical growth – or more precisely, a complex variety of growths – tied to social intercourse and complexity”. The theory further notes that “certain of these legal manifestations develop and evolve, while others wither, or are absorbed or supplanted”. As a result, “law has roots planted in the history of a society, develops in social soil alongside other social and legal growth, tied to and interacting with surrounding conditions”.

The gradual disappearance of refugee protection therefore appears to have emerged and evolved within the post-1994 reconstruction and development agenda and its procedural legal and political framework, which is morally informed by South Africa’s history of discrimination, racism, repression and xenophobia. This particular agenda is reinforced by section 9(2) of the Constitution, known as “substantive, remedial or restitutionary equality”.

Based on this premise, the protection of refugees in South Africa has become infinitely complex and contested. Consequently, the government doesn’t follow an interdisciplinary approach to offer refugees and asylum seekers socioeconomic protection.

The radical need to reduce inequality in South Africa has implications of negating the protection of refugees’ rights in the pursuit of socioeconomic development of historically disadvantaged citizens. It is true that the rights and interests of refugees and asylum seekers are not given due consideration in transformative, remedial or restitutionary measures such as affirmative action or black economic empowerment.

This has culminated in the government’s reluctance to ensure full legal protection of refugees or favourable protection of asylum seekers in the social welfare system. This approach is further evident in their exclusion as beneficiaries of emergency Covid-19 relief packages. 

The government usually justifies this exclusion by saying that many illegal foreigners or economic migrants in the country could impose a major financial burden on the state if they were to be included in subsidised socioeconomic programmes. This implies that refugees and asylum seekers are viewed politically as economic migrants who are in the country to seek greener pastures and not asylum.

On top of this, foreign nationals (including refugees and asylum seekers) are blamed for making it impossible for the state to deliver services to South Africans because there are so many of them in the country.

This political view could ignite xenophobic violence or attitudes towards indigent foreign nationals, and thus could develop a national attitude of denying refugees and asylum seekers certain socioeconomic rights and benefits to preserve these rights and benefits for vulnerable South Africans.

It should be pointed out, however, that exclusion of and discrimination against indigent foreign nationals is not something new. This is part of South Africa’s history. The exclusion of others from socioeconomic protection clearly developed as a form of discrimination in the country, which now manifests as institutionalised hostility and xenophobia towards fellow African foreign nationals.

Aditi Lalbahadur of the South African Institute of International Affairs maintains that there is a history of institutionalised xenophobia in South Africa that prevents refugees and asylum seekers from accessing state resources and securing the right to live and work in the country. 

Institutionalised xenophobia is evident in political statements that describe both refugees and asylum seekers as bogus refugees who are in the country to reap the fruits of democracy. Their plight is not considered in efforts to address the socio economic problems affecting the society in which they live.

Consequently, socioeconomic laws – adopted for remedial purposes – do not speak to refugee law. Moreover, it appears that the more the refugee regime is amended, the more measures are introduced to restrict access to social welfare, resulting in institutionalised exclusion, and not in addressing the gaps and shortcomings in the initial refugee regime.

Legal indicators of a shrinking refugee protection regime in South Africa have evolved through several issues including socioeconomic transformation aspirations ingrained in historical racism, hatred, and discrimination.

One cannot ignore, however, the difficulties in differentiating the legal positions of different categories of foreign nationals. An ignorance exists to differentiate between (i) economic migrants and foreign nationals with asylum seeker status; (ii) asylum seekers and foreign nationals with refugee status; (iii) refugees and foreign nationals with permanent resident status; and (iv) permanent residents and foreign nationals naturalised as citizens.

Unsurprisingly, they are all lumped together as foreign nationals who should leave South Africa.

Such ignorance or inability to differentiate between categories of foreign nationals renders the principle of refugee protection opaque. This inability is tied to the country’s code of conduct which it has constructed for its own progress and prosperity. Brian Tamanaha of the Washington University School of Law argues that there are certain fundamental rules of social intercourse that guide a particular society, community or group to viability or survival. Said to be tied to human nature and the need for self-preservation, these fundamental rules emerge from the self-interests and also the altruism of humans and develop in such a context. 

Because members of a particular community or group understand that there are limited resources to meet their basic needs, they become unfriendly towards outsiders and do not want to compete with them for these resources. As Tamanaha succinctly puts it, these self-interested desires ignite or motivate the need to protect personal, community or national resources. It is within this context that refugee protection in South Africa gradually shrinks.

Owing to asylum fatigue, the government only strives to protect, preserve and safeguard national resources for the happiness of citizens, while it leaves refugees and asylum seekers in the lurch. DM