By Khangelani Moyo and Franzisca Zanker
The COVID-19 pandemic and the different iterations of a hard lockdown by the South African government has had a devastating impact on the economy and livelihoods of many people in the country. Refugees and asylum seekers have however had to contend not only with the loss of their livelihoods but also an ever increasing bureaucratic paper wall in recent years. The pandemic responses will only increase the precarity of the already very arduous asylum process.
At the beginning of June 2020, UN Secretary-General António Gutierrez released a policy brief in which he noted the “disproportionate impact” of the coronavirus pandemic on asylum seekers and migrants. He also argued that it presented the international community with an opportunity to “reimagine human mobility for the benefit of all.” One of these tenets is that “no one is safe until everyone is safe”. Despite the health and human rights veracity of this ideal, governments all over the world are failing to cover the basic needs of some of their most vulnerable residents and are using the global pandemic as an excuse for pushing through already-aspired to policies of exclusion, scapegoating and securitization of refugee protection. One of these countries is South Africa, by now one of the hardest hit countries in Africa, with 138, 134 confirmed cases (as of 29 June 2020). We have previously argued that South Africa’s treatment of refugees and asylum seekers reflects “a business as usual” approach with little concern for the fact that the virus does not discriminate according to nationality. Instead of taking the response to the pandemic as an opportunity for a much needed unity of purpose, there have been some voices in government that advocate for a “South Africans first” approach in the post COVID-19 economic configuration.
In the following piece, we reflect on the situation of refugees in South Africa and highlight that the business as usual approach is counterproductive and worsens the plight of refugees and asylum seekers. They have had to contend not only with the loss of their livelihoods but also an ever increasing bureaucratic paper wall.
A stay on asylum seeker permits
Asylum seekers in South Africa receive a temporary permit from a Refugee Reception Office (RRO) (see below) which they have to regularly renew. When the lockdown was announced at the end of March, the Department of Home Affairs (DHA) reported that anyone whose permit will become invalid will have an additional 30 days after the lockdown is lifted to renew their permit at an RRO. Some banks followed, allowing asylum seekers to keep their accounts open, even if their permits expired in the meantime. As the lockdown measures continued beyond the 30 days, the DHA announced in a formal government notice on 10 June that all asylum seekers and refugee permits are extended until the end of July.
So far so good. Nonetheless, how and when the RROs will re-open and under what health measures is still unclear. Moreover, it comes in the light of a series of measures, which continuously dismantle the protection of asylum seekers and refugees. One of the measures is that under new regulations from January 2020 that if an asylum permit is not renewed for a period exceeding 30 days it will be deemed abandoned, leaving the asylum seeker vulnerable to deportation measures. This is subject to a court challenge by civil society organisations, which argue that the clause is unconstitutional, especially given the long documented inefficiencies of the DHA. The abandonment-clause is especially problematic given that the already dire situation at the RROs in terms of access is likely to worsen after the Corona-virus leniency ends.
An overburdened system
Often praised for its progressive asylum laws, with the Refugee Act of 1998 – allowing asylum seekers to move freely, work and study in the country – South African politicians have repeatedly politically capitalized from restricting these rights in the two decades since the implementation of the Act. Today, the asylum process can be long and arduous, and many asylum seekers face considerable risks in South Africa including crime, harassment and xenophobic attacks. With few possibilities for anyone but highly qualified immigrants getting work visas, the political and administrative response and societal understanding has long merged refugees and migrants in the system: many migrants who enter the country see no choice but to enter the asylum system in order to legalize their stay. This, together with the corruption and inefficiency in the DHA, has resulted in the development of a dysfunctional asylum system that is beset by an insurmountable backlog that could take decades to clear. The net effect of a restrictive immigration system and a dysfunctional asylum system is that it fails in its duty to protect refugees and asylum seekers who require urgent assistance and protection.
Even once they reopen, there is no indication of how the RROs are likely to catch up with those permits that have not been renewed during lockdown. As it is, RROs lack the capacity to process asylum claims. Until recently, only three out of six offices continued to fully function (Durban, Musina, and Pretoria), with others closed either fully or specifically to new claims since 2011. Court orders to reopen the closed offices were repeatedly ignored by the DHA. The burden of constantly renewing the permits, often having to travel far distances, waiting in long queues is unsustainable, and often takes years. In 2015, South Africa had a backlog of over a million asylum claims at various stages of the process. The UNHCR reports 188,296 pending asylum cases in 2019 and a 2019 audit of the immigration process shows that the Refugee Appeals Board is processing a backlog, which would take 68 years to work through.
New laws further threaten asylum rights
In January 2020, the Refugee Act from 1998 was amended through the Refugee Amendment Acts of 2008, 2011 and 2017, which came into force with the publications of the accompanying regulations. These recent changes to refugee laws, including a controversial amendment which forbids asylum seekers or refugees to take part in any “political activity or campaign in furtherance of any political party or political interests” (Article 4 (2)) with the threat of losing their refugee status, have faced widespread criticism from civil society actors. Positively, the changes do also reform the rules for the appeals board, which will hopefully speed up procedures. Nonetheless, under the new rules, asylum seekers now only have five days to register at an RRO with their transit visa, despite the fact that queues and restrictions of only allowing certain nationalities on some days make this virtually impossible. Again, there is little clarity about what will happen to all the new and pending applications of asylum seekers who may have entered the country since March 2020.
The amendments also take away the automatic right to work and study, which has been a key feature of the 1998 Refugee Act. Instead, asylum seekers would need an endorsement on their permits to work or study, and are not given the former if they are deemed to have enough savings to self-sustain themselves for four months. This adds an extra layer of bureaucracy to a system that is already known for its inefficiencies. Moreover, it highlights the fact that many asylum seekers are likely to be working in already very precarious sectors, and thus more vulnerable to the economic turndown related to the lockdown and its aftermath. Beyond the formal restrictions, asylum seekers and refugees also face xenophobic discrimination, which has continued throughout the COVID-19 era.
Exclusionary policies during a pandemic
In the midst of announcing the rules pertaining to the shutdown, the Minister of Small Business Development, Khumbudzo Ntshavheni, noted in a briefing that whilst spaza shops (i.e. small grocery shops) may operate, only South African owned and operated ones may do, claiming: “We want to make sure that the quality of food and surety of the quality of products is there.” On the first day of the lockdown, immigrant-owned spaza shops were already being shut down by police. Such communication mishaps at a time where national unity is so sorely needed, speaks volumes to the business as usual approach. On 6 April, a new directive permitted all spaza shops to remain open, but by then the damage may have already been done.
The country has faced several waves of xenophobic violence against refugees and other migrants. Often such acts of violence have taken place against foreign-owned spaza shops, that are widespread in the townships. Spaza shops are estimated to be in the region of 100,000 across South Africa’s townships, with unconfirmed estimates of approximately 70-85 percent of these owned by foreign nationals. Many of the foreign nationals are refugees, particularly from Ethiopia, Somalia, Bangladesh and Pakistan. These businesses make significant contributions to the local economies where they operate – by creating employment for both foreign migrants and South African citizens.
Equally damning is that asylum seekers cannot apply for emergency relief grants during the lockdown period – these are available only for those who are recognized refugees. Dewa Mavhinga, southern Africa director at Human Rights Watch urged that “[t]he government is ignoring the plight of refugees and asylum seekers currently confined in their homes and unable to work to provide for themselves.” A court order from the 19 June 2020 looks to overturn this rule, and make it available to asylum seekers under certain conditions.
South Africa, currently leading the African Union, is far off from rethinking mobility in terms of safety for all. An additional Corona-related policy was the announcement to build a 40-km fence on the border between South Africa and Zimbabwe. Not only does this take away critical resources at a time when infections in South Africa are higher than all the neighboring countries combined. The response speaks of an increasing securitized approach in South Africa when it comes to dealing with refugee and migration governance more broadly.
The idea of “processing centres” at the borders, which would dismantle most of the rights asylum seekers in the country currently hold, originally raised in a White Paper on International Migration from 2017, have not yet emerged, but could still be on the cards, at huge costs. In February 2020, a new Border Management Authority Bill was passed by the National Assembly, which aims to coordinate border security under a single authority. The Act has long been in the making, but faces criticism for potentially abusing basic principles of refugee protection and painting a militarized picture of ‘migrant invasion’, which is at odds with Pan-African free movement ideals. With emergency powers open to abuse all over the world, a COVID-19-justified border wall certainly plays into the hands of the increasing securitized approach in South Africa.
In a recent focus group discussion for a research project on refugee politics in South Africa, one asylum seeker respondent noted on the idea of processing centres, “When you put your monkey in a cage, a small cage, and you put your dog in a bigger cage, which one is free?”.
Asylum seekers and refugees – despite the once progressive legislation – continue to be undermined in South Africa, further threatened by the pandemic. The pandemic responses look set to increase the precarity of the already very arduous asylum process. In the long-run only a more inclusive agenda which includes listening to those stakeholders who have been advising on these issues would allow South Africa to return to the progressive asylum laws it has received so much praise for.
This blog post was also published in German and is part of the series Consequences of COVID-19 for Forced Migration and Refugees on the FluchtforschungsBlog. The post builds on an earlier blog piece in African Arguments and a report article in Africa Spectrum.