Thursday, November 13, 2014

Paloma van Groll, 3L, was an International Human Rights Program intern a the UN High Commissioner for Refugees in South Africa during the summer of 2014. Paloma’s internship was generously funded through the support of Goodmans LLP

Paloma van Groll (right) at the UN High Commissioner for Refugees in South Africa

Paloma van Groll (right) at the UN High Commissioner
for Refugees in South Africa

South Africa is a party to the 1951 Convention Relating to the Status of Refugees (“the 1951 Convention”), as well as the 1967 Protocol relating to the Status of Refugees. The country is also a party to the 1969 Organization of African Unity Convention Relating to the Rights of Refugees in Africa, which adopts an expanded definition of a “refugee.” However, earlier this year, the government of South Africa published its draft Immigration Regulations (“the Regulations”), which came into effect in May 2014. The Regulations introduced changes to the South African immigration regime and will have a significant impact on access to asylum procedures. In particular, the Regulations raise issues regarding the domestic implementation of South Africa’s international human rights commitments.

First, Regulation 22(1)(b) introduces the implementation of the “first safe country of asylum” principle. Under this principle, officials may deny issuance of an asylum transit visa to a person with refugee status in another country. Without an asylum transit visa, the person is denied entry into South Africa and therefore denied access to asylum procedures. The position of the United Nations High Commissioner for Refugees (UNHCR) remains that asylum seekers should still have the right to seek asylum in the country even if they have refugee status in another safe country.

As an intern with the UNHCR in Pretoria, South Africa this summer, I interviewed many refugees and asylum-seekers who travelled to South Africa from countries as far as Somalia and Ethiopia. This journey usually takes months, and those persons might travel through Kenya, Tanzania, Malawi, Mozambique, and Zimbabwe and may have passed through refugee camps in these countries. The “first safe country of asylum” principle will therefore affect those who travel far distances, often risking life and limb, to seek asylum in South Africa. Furthermore, while an asylum-seeker may have applied and received status in a different country, they may have faced serious security risks in that country which motivated them to continue on to another country. Denying this person would put the asylum-seeker at risk and potentially deny them of the protection to which they are legally entitled.

Second, the Regulations also have an impact on the legal framework relating to detention in South Africa. South Africa has protective legislation with regards to detention, giving legal certainty to rules and procedures for detention. For example, South Africa’s 2002 Immigration Act provides procedural safeguards against indefinite detention. However, the Regulations now allow immigration officers to refuse entry to a person who presents a fraudulent passport. This grant of power is inconsistent with Article 31 of the 1951 Convention which exempts refugees coming directly from a country of persecution from being punished on account of their illegal entry or presence in the country. From my interviews with detainees at the Lindela Holding Facility in South Africa, it was clear to me that these persons are fleeing persecution in their own country, are often traumatized, have very little money, and are not always in complete control of their own situation. As a result of these circumstances, it is not surprising that certain asylum seekers enter the country illegally based on misguided advice received from people they encounter along their journey. Provided these individuals present themselves without delay to the authorities and show good cause for their illegal entry or presence, they should not be punished in this manner.  

While South Africa currently hosts over 80% of the refugees and asylum-seekers in Southern Africa, the recent Immigration Regulations may tarnish the country’s reputation as having strong legal protection for refugees and asylum-seekers.

Read other 2014 IHRP intern reports in the IHRP's Rights Review magazine (PDF).