Blog post written by Nicholas Maple (RLI) who is currently undertaking his PhD on reception policies in southern Africa. He is currently in the middle of an affiliation at the African Centre for Migration & Society (ACMS) at the University of the Witwatersrand.[i]
Freedom of movement in South Africa
Freedom of movement as a norm within the global refugee regime has until recently largely been overlooked by academia and practitioners. This lack of attention is somewhat surprising, given the long held recognition of its fundamental nature as a gateway to other rights and its ability to grant autonomy to refugees.
“Freedom of movement is also the indispensable condition for action, and it is in action that men primarily experience freedom in the world.”[ii]
While it is true that displacement globally is becoming more and more urban in its make-up, current state practice in relation to the frequent violations of freedom of movement makes deeper analysis even more pressing. These state practises are commonly seen on the African continent, with the high quantity of closed or semi-closed refugee camps and settlements, the restrictions placed on refugee movement in times of mass influx and the number of states who have placed a reservation on Article 26 of the 1951 Convention relating to the Status of Refugees (1951 Refugee Convention). [iii] These practices suggest that, far from being a core norm within the refugee regime, freedom of movement should now be seen as an incredibly weak norm.
In contrast to much of continent however, South Africa has no explicit restrictions on freedom of movement for refugees. Instead, South Africa runs a laissez-faire refugee reception policy whereby the State officially accepts the presence of documented refugees and asylum-seekers on its territory, which includes the right to freedom of movement and work, but subsequently abstains from any real involvement in the day to day lives of these groups. While the State has produced little in the way of official integration programmes, it is often praised as a beacon in southern Africa for its non-encampment policy, a robust Constitution granting social and economic rights to all persons within South Africa and a strong independent judiciary.
Yet de jure and de facto restrictions on movement for both asylum-seekers and refugees have been evolving in policy and practice (if not in law) since the national refugee legal framework was first enacted nearly 20 years ago. As set out below, these restrictions have been developing through a variety of processes:
- The construction of refugees as temporary guests;
- The framing of foreigners as criminals or terrorists; and
- Changes in policy and practice at the local and national level, which appear to be in conflict with the State’s international and national legal obligations.
Recent renewed political pressure to introduce asylum-seeker processing centres at the specific border posts is the latest in this trend of attempting to limit movement. These centres have the potential to go even further, however, by restricting access to the interior for all forced migrants and possibly ending South Africa’s long celebrated non-encampment policy.
From the inception of the national Refugee Act in 1998, there has been enormous political pressure to sidestep the integration of refugees, with refugee status being seen as temporary at the national level.[iv] This has resulted in the construction by the State of refugees solely as temporary guests, which is synonymous with attempts to contain and restrict freedom of movement. Within the 1998 Refugee Act itself, there are clear signs that the intention was for refugees to be able to seek immediate humanitarian protection but that the overriding goal was for them to return to their home country.[v] This approach has continued since the early 2000s up to the present day, with the temporality of refugee status being reinforced in contemporary policy papers and amendments to the national legal framework. For example, in the recent White Paper on International Migration (White Paper), refugee status is defined as inherently short-term multiple times.[vi] While as Kavuro notes, many of the amendments to the 1998 Refugee Act, in the new Refugees Amendment Bill [B12-2016] have the effect of treating refugees and asylum seekers like other non-citizens with temporary status under the Immigration Act 12 of 2002.
A clear barrier to freedom of movement has been the closure of Refugee Reception Centres (RRCs) in major urban areas, such as Cape Town and Port Elizabeth since 2011. Many see the overriding motivation for these turns in policy as a move to reduce access to the interior and prevent asylum-seekers and refugees from reaching cities.[vii] This policy shift also means asylum-seekers who have settled in urban areas often must make frequent long and expensive journeys to border areas to deal with their cases, or are ultimately forced to move closer to the borders. Until now, judicial orders to reopen the centres have been ignored by the Department of Home Affairs (DHA). We will have to wait and see how the State responds to the most recent Supreme Court of Appeal decision this month.
Finally, freedom of movement for refugee and asylum-seekers is also curbed due to the increasingly toxic anti-foreigner attitudes across all branches of government. As Misago et al note, similar to the apartheid regime, unregulated human mobility is still seen as a threat to the physical and economic well being of citizens. These prejudicial attitudes to foreigners are exploited and politicized via padding of immigration statistics, unchecked assumptions and conclusions regarding the exploitation of the asylum system and blaming of crime on foreigners.[viii] This hostile environment, coupled with xenophobic attitudes among police, creates a situation where even though refugees have freedom of movement under the law, “the quest to control undocumented migrants means they can not do so without constant fear of harassment, arrest, and deportation”.
Proposed Border Processing Centres
The renewed push for processing centres at the borders appear, at least in part, to be a reaction to recent court decisions which demanded the reopening of refugee reception centres in urban areas and the prominent ‘Watchenuka Case’ case that reaffirmed the right to work for asylum-seekers under the Constitution. Furthermore, the increasingly hostile environment for the majority of African foreign nationals – highly skilled migrants being clear exceptions – and the continued construction of refugees as temporary guests has helped facilitate a situation where the processing centres are edging closer to reality without a great deal of political or public pushback. As set out below, these developments have the potential to further reduce access to the interior for refugees and asylum-seekers and in doing so further weaken the regime norm of freedom of movement within the region.
Border processing centres in South Africa are not however a new concept, with centres being discussed by the State for some time. Section 35 (1) of the Refugee Act permits the creation of ‘areas, centres or places’ for the temporary reception of asylum-seekers or refugees at times of mass influx. As early as 1999, DHA sent out a ‘Discussion Document’ to civil society organizations and UNHCR, proposing the establishment of reception centres for asylum-seekers to remain until their applications for asylum were processed.[ix] Yet with the political support for proposals set out in the current White Paper, the purchasing of land at the borders by the State and an acceptance behind the scenes by UNHCR officials, it is now rather a question of when they become a reality rather than if.
In their current iteration, as laid out in the White Paper, border processing centres will be used to “profile and accommodate asylum seekers during their status determination process in order to admit asylum-seekers in the refugee regime in a “humane, secure and effective manner”.[x] While civil society has been strongly opposed to such developments ever since they were first discussed in post-apartheid South Africa, it is also clear that the current national refugee reception system is not fit for purpose (see below). A distinction between asylum-seekers and refugees is maintained within the policy paper, with a desire to maintain the current non-encampment policy, by integrating recognised refugees “…into communities, provided adequate mechanisms are put in place and there is coordinated support by relevant departments and other actors.”[xi]
Significantly, the approach of detaining asylum-seekers at the border for the purpose of verifying identity and investigating an asylum claim, coupled with the granting of rights once the person has been deemed to be a refugee, is clearly in line with state practice for countries who receive large numbers of asylum claims but avoid using encampment policies. While potentially not fitting with UNHCR best practice, if the detaining of asylum-seekers is ‘shown to be the least intrusive means available to achieve a specific and important lawful purpose, such as documenting the refugee’s arrival, recording the fact of a claim, or determining the refugee’s identity if it is in doubt’ then the processing centres would not necessarily give way to South Africa breaching its international obligations under the refugee regime. Finally, locating the processing centres at the borders rather than in urban areas can also be perceived as more efficient for the government, with the majority of asylum-seekers entering the county via land borders, rather than sea or air.
While on paper at least, the arguments above have a certain pragmatism to them, genuine concerns come with the implementation. Importantly, the White Paper explicitly acknowledges that the current national refugee system is not functioning; yet it is unclear how processing centres will address the infamous underlying structural issues of capacity, inadequate training and corruption. Unless systemic change occurs, the current status quo of long delays in processing claims, asylum-seekers waiting for years for appeal decisions, allegations of corruptions at all levels and the lack of training for officials in decision-making positions will simply be transferred from the interior to the border. This will in turn result in a higher probability of:
- Arbitrary detention;
- Long-term restrictions on the freedom of movement of refugees;
- Greater risk of refoulement; and
- Closure of borders and even greater control and containment of all migration flows
These recent developments, namely the closure of refugee reception offices and the proposed detention of asylum seekers at the border have understandably left civil society and academia to question whether the State, in the long-term, intends to move from a reception policy of integration to ‘some form of de jure or de facto detention’ of refugees, if not eventually one of encampment.
As is customary in South Africa, any effective pushback to these changes in refugee reception (particularly if they impinge on rights) will likely not come from international pressure or persuasion but rather from national civil society bringing claims via the national courts. This is especially true in the current global climate, with Europe and the United States particularly, seen as having lost any moral credibility in lecturing the African continent on how to host refugees. Furthermore, rather than looking to international or national refugee law frameworks for a response, civil society will likely turn towards a constitutional battle on the grounds that the Constitution sets out the right to freedom of movement for all persons within South Africa. Finally, one actor that has been reasonably quiet on these developments is UNHCR, making it unclear as to its role in day-to-day running of the centres. While many would like the institution to be more vocal in its disapproval, publicly at least, UNHCR have stated that the institution does not fund reception centres. Nevertheless, it seems difficult to see how they cannot become involved in some capacity, particularly in relation to monitoring human rights standards.
As noted earlier, South Africa has often been seen as a beacon in relation to refugee rights, particularly in southern Africa for its non-encampment policy and granting freedom of movement to asylum-seekers and refugees. While it is too early to say if the processing centres will bring an end to this approach and further weaken the regime norm, there are worrying signs, particularly with underlying structural deficiencies within the national refugee system not being adequately addressed. With previous policy changes proposed by Home Affairs having a mixed record at the point of implementation, such as the three-month documentation programme targeting undocumented Zimbabweans in 2010, civil society will have to be extra vigilant in the months to come.
Footnotes:
[i] Based on preliminary PhD fieldwork in South Africa in 2016-17 via an affiliation at the African Centre for Migration & Society (ACMS) at the University of the Witwatersrand, Johannesburg. I would like to express gratitude to all the staff at ACMS who have given their time so generously.
[ii] H. Arendt, 1970. Men in dark times. Houghton Mifflin Harcourt.
[iii] N. Maple, 2016, Rights at Risk: A thematic investigation into how states restrict the freedom of movement of refugees on the African Continent. New Issues in Refugee Research, UNHCR.
[iv] J. Handmaker, 2001. No easy walk: advancing refugee protection in South Africa. Africa Today, 48(3), 91-113.
[v] J. A. Klinck, 2009. Recognizing Socio-Economic Refugees in South Africa: a Principled and Rights-Based Approach to Section 3 (b) of the Refugees Act. International Journal of Refugee Law, 21(4), pp.653-699.
[vi] For example p47 and p70 of the White Paper. Should be noted that the policy paper advances the position on the previous Green Paper on International Migration, noting the protracted nature of refugee and allowing refugees to apply for permanent residence.
[vii] J. Misago, I. Freemantle & L.B. Landau, 2015, Protection from Xenophobia, An Evaluation of UNHCR’s Regional Office for Southern Africa’s Xenophobia Related Programmes. UNHCR.
[viii] Ibid.
[ix] J. Handmaker, 2001. No easy walk: advancing refugee protection in South Africa. Africa Today, 48(3), 91-113.
[x] White Paper, p70.
[xi] Ibid, p69.
Acknowledgements:
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