Refugee processes require independence

Refugee minor reunited with his mother

Over the last few years, the Department of Home Affairs (DHA) has faced a handful of criticisms. From hasty closures of Refugee Reception Offices (RRO) to the damning reports of poor conditions in the Lindela Repatriation Centre, there is much fodder for this condemnation.

While many DHA practices are unforgivable, it is not surprising that the same institution charged with regulating immigration treats refugees so contemptuously.

The DHA enforces both the Immigration Act and the Refugees Act. The Immigration Act is protectionist legislation, aiming to preserve employment and educational opportunities for citizens. On the other hand, the acceptance of refugees – people who seek safety and solace – is undoubtedly a humanitarian activity.

Improving conditions for refugees will take a multi-pronged approach; however, we must acknowledge that some of the existing conditions are unavoidable when the DHA is called to implement the Refugees Act and the Immigration Act, two pieces of legislation that occasionally butt heads. The inherent conflict in the process has resulted in the poor treatment of asylum-seekers and the development of distrust among all involved parties.

If the mechanisms dealing with refugees are to be improved, the relevant institutions must be independent from the DHA. In fact, this model of institutional independence is not new and has been employed in various contexts.

Take for example the Independent Police Investigative Directorate, which investigates complaints lodged against the South African Police Service (SAPS). Institutions like the Directorate exist because there would be a complete lack of confidence in a complaints mechanism directly connected to SAPS.

The threat of deportation or the lapse of a transit permit, among other things, inject fear into asylum-seekers and refugees. Even people who have held valid refugee permits for several years retain this fear, which only compounds the anxieties arising in their everyday lives. For many, a system independent of the DHA can alleviate some of those fears and infuse a necessary sense of security in the process.

Admittedly, the South African asylum-seeking process is not completely void of independence. In fact, there is an independent six-person Refugee Appeal Board (RAB), which exists to enforce the Refugees Act, as well as relevant international conventions. However, when the system is as backlogged as it is (as of April 2012 there were 87,602 RAB reviews pending) and the RAB is only accessible during an appeal, the potential strength of the board is diminished.

Some may have apprehension at the thought of a more independent system. They envision a deluge of asylum-seekers successfully claiming refugee status under false pretenses. However, the aim of this suggested bifurcation would not be leniency, but rather an infusion of humanitarian principles into the process and a clear focus on the goals of the Refugees Act.

Many countries have asylum processes that are linked to immigration enforcement agencies, but it is important to note that these countries lack South Africa’s history. Not so long ago, many exiled anti-apartheid activists sought the support and protection of other nations; these experiences cannot be forgotten. South Africa should aim to be a source of enlightenment when it comes to refugee rights; however, as of now, it is heading rapidly down the wrong path.

By: Estelle Hebron-Jones

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.

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The Legal Resources Centre is a public interest law clinic established in South Africa in 1979

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