In 2009, Jean-François Durieux observed that when we speak of attempting to resolve ‘the refugee ‘problem’, one has to acknowledge that the refugee regime does not contain in itself either the normative or cooperative instruments which will deliver the sought-after permanent solutions.’ The truths underlying these observations are in part why for the last few decades, academics and policy-makers have turned to alternative approaches and ideas to try and ‘solve’ displacement – particularly protracted displacement.
Some have suggested migration as a 4th durable solution (the three classic durable solutions promoted by the global refugee regime being local integration, resettlement and repatriation). In policy circles, watered down forms of the classic durable solutions have been encouraged, such as the use of ‘local solutions’ in the Global Compact on Refugees, while forms of temporary protection are being offered by the European Union to Ukrainians rather than more permanent solutions. You would be hard pressed to argue these alternative approaches are ideal – indeed the watering down of permanent rights should be of grave concern to us all – yet from a pragmatic perspective, there are merits to at least some of these approaches, particularly if the alternative involves forms of encampment and extreme restrictions on freedom of movement.
For many refugees and other forced migrants on the ground, especially in the Majority World, the failure of the global community to find long term solutions to displacement, means they are forced to hustle to find their own form of protection and generate personalised economic strategies. Through human mobility and agency, many are able to find belonging within communities and enclaves of cities and towns, with minimal or no contact with state bodies or the global regime. Yet, their status and presence in their ‘new’ homes often remains precarious long-term.
Thus, the need to continue to engage with global, regional and national governance systems in search of better solutions remains. For example, there is surely value in continuing to investigate the role other human mobility regimes could play in ending displacement, even if the idea of migration being a solution in of itself, may ultimately prove to be unhelpful. Equally, there are multiple lessons the refugee regime could learn from these more de facto approaches to protection and long-term settlement by migrants on the ground.
The Zimbabwean Dispensation Permits in South Africa
With all this in mind, in January 2023, I attended the Asile Project’s Annual Conference in Cape Town, South Africa. Both the Asile Project and its sister EU initiative, the Protect Project, have been interested in key issues relating to the global refugee regime, including the role of international protection, temporary protection pathways, solutions, and global governance frameworks, including the Global Compacts. With the South African state continuing to restrict the ability of asylum-seekers, refugees and other migrants from the African continent to settle long-term in the country, and international actors and global initiatives seemingly being unable to halt these patterns, Cape Town was an apt setting to discuss these issues.
The theme of the first day of the conference, and the focus of the remainder of this article, was the Zimbabwean Dispensation Permits (ZDPs) in South Africa. In particular, the opening session involved interventions from Zimbabweans who had used the permits to regularise their stay in South Africa for the last decade or so, academics, civil society, human rights lawyers, and UNHCR officials.
As way of a brief background, during the 2000s, South Africa witnessed one of the ‘largest migration events in the region’s history’, when hundreds of thousands of Zimbabweans crossed the border due the deterioration of Zimbabwe into a failed or fragile state. As a response, in 2009 South Africa offered around 200,000 Zimbabweans, the option of applying for a four-year exemption permit: the ZDP.
Based on the economic, political and social crisis these migrants were escaping from in Zimbabwe, many of the migrants had a strong case for seeking asylum. Yet, rather than responding to these large scale movements through RSD procedures, the state instead created the permits. One way to understand this approach is to see the state going beyond its commitments under the global refugee regime by ‘regime stretching’ the key regime norm of non-refoulement to include forced migrants from Zimbabwe who may not strictly fall under the 1951 Refugee Convention refugee definition. The permit granted a form of protection and access to key rights and certain services for a large group of migrants, many of whom potentially would not be eligible for refugee protection under international law.
Immigrants or Refugees
An alternative viewpoint, however, is that this was an attempt at ‘regime shifting’ by a state. This means, the state was in effect shifting migrants from one mobility regime (the national refugee regime) to another (the national immigration regime). On one hand, through this ‘4th solution’ approach, thousands of Zimbabweans were offered a form of legal protection through the immigration regime (including the ability to regularise their stay for four years). Certainly, in many respects, Post-Apartheid South Africa can be seen as quite accommodating of migrants and refugees from Zimbabwe. Yet, on the other, if these migrants chose this option, they lost the potential human rights attached to the global refugee regime. There was also no pathway to permeant residency or citizenship through the permits scheme. Given the temporary nature of these permits, this meant a waiting game every four years to see if the permits would be renewed.
This offer of applying for the permit, therefore left migrants at the time with an almost impossible choice: to either go for short-term protection within the migration regime or apply for asylum in a country that had shown an unwillingness to grant asylum to Zimbabweans, even though the state has ratified the OAU 1969 Refugee Convention, with its extended refugee definition.
Since 2009, the permits have broadly been extended every four years, with the original permits replaced by the Zimbabwean Special Dispensation Permit (ZSP) and then the Zimbabwean Exemption Permit (ZEP).
The reason the permits were being discussed at the Asile Project Conference was because as of November 2021, the South African government confirmed that the ZEPs would not be extended after December 2022, with the permit holders told to apply for other work visas (with permit holders given a 12-month grace period on the expiry of the current ZEP). In September 2022, a (presumably final) extension of the ZEPs until 30 June 2023 was announced.
Zimbabweans in the morning session spoke of an uncertain future, unclear what would happen at the end of June this year. Some noted that the chance of obtaining alternative work visas in South Africa was remote and so the risk of detention and forced return to Zimbabwe was high. Others spoke of their children being born in South Africa, yet now faced with the risk of being forced to halt their education and return to a country that they did not know. Civil society leaders spoke of the impact on key services in South Africa, with thousands of Zimbabweans affected by this decision working in the health service and education systems. UNHCR offered sympathy with the situation, but the agency has long been restricted in South Africa by a government unwilling to allow it too much influence. In turn, the agency unhelpfully continues to frame many of the problems within the national asylum regime as stemming from economic migrants abusing the system at the expense of ‘genuine’ refugees, rather than acknowledging the real deficiencies of the two national mobility regimes.
Finally, society and human rights lawyers spoke of current legal challenges to the state’s decision to end the permits. This follows broader patterns in the country in terms of protection mechanisms, with civil society and the national courts emerging as the key protectors of refugee and migrant rights in South Africa. Indeed, civil society continues to respond to the needs of persons of concern in the country, in many cases, replacing functions of the state.
The morning session ended with plenty of questions, including the most important: what next for the affected migrants, civil society, and advocates of long-terms solutions for these migrants and other forced migrants in South Africa?
For the migrants, it is an anxious wait on court decisions, continuing the theme of ‘frozen futures’, with them remaining in constant limbo and legal uncertainty since 2009. Indeed, there is an element of cruelty in making people live temporary lives, forced to wait for news of renewals every four years, and then after more than a decade of creating lives in South Africa, they are told they have to leave.
For civil society, they will continue to support the migrant population and the legal challenges currently going through the courts. And if they prove successfully, the monitoring of the implementation of any court decision by the Department of Home Affairs. For advocates and academics, the case study of the Zimbabwean Permits raises concerns around migration pathways being a solution to displacement. Indeed, without the guarantee or promise of a pathway to permanent residency and/or citizenship, this type of regime shifting risks turning into another form of protracted displacement and temporary belonging, but with access to less rights.
Yet, if indeed, as Jean-François Durieux notes, the global refugee regime is ill-equipped to offer long-term solutions (and observing the failure of the durable solutions today, it is becoming increasingly harder to disagree), then we need to keep interrogating alternative approaches and the possibility of alternative mobility regimes. In the context of South Africa, the development of alternative approaches to the durable solutions must involve all key stakeholders, including refugees and local actors, such as civil society. In as much as governance frameworks relating to refugees and forced migrants are global, actions have to be locally-led and rooted in specific contexts, where particular protection challenges and development opportunities exist.
Local networks should be better utilised and supported by government organs and UN agencies, as opposed to the status quo whereby national bodies appear to be content with civil society performing essential (and often life-saving) functions of the state. If states such as South Africa who are party to the Global Compacts are truly committed to new ‘whole of government’ and ‘whole of society’ approaches; then genuine engagement and open dialogue with organisations at the local level would be one positive step forward.
 Nicholas Maple is a lecturer at the Refugee Law Initiative, University of London. Previously he was a Post-Doctoral Research Fellow at the African Centre for Migration & Society (ACMS), the University of the Witwatersrand, South Africa and through that role was part of the PROTECT The Right to International Protection: A Pendulum between Globalization and Nativization? (www.protect-project.eu). Thank you to Prof. David Cantor, Dr Sarah Singer, and Dr Kudakwashe Vanyoro for comments on earlier drafts. The views expressed in the essay, and any errors that it contains, remain those of the author alone. Contact: Nicholasjmaple@gmail.com.
 Arguments set out in this article were generated through research conduct with Protect colleagues Professor Jo Vearey and Dr Kudakwashe Vanyoro.
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