Protecting, promoting and advancing the rights and freedoms of migrants and refugees
To promote and strengthen the rights and integration of migrants and refugees in South Africa, through providing individual advice, publishing research, raising awareness, and advocating for legislative and policy reform and its proper implementation.
The Advocacy Team works on two mutually informing levels. Firstly, paralegal advice and practical assistance are provided to individual clients on a walk-in basis. Pertinent issues here include:
• access to documentation and the Department of Home Affairs immigration and asylum systems;
• access to public services such as education and healthcare;
• access to justice for victims of xenophobic violence, hate crimes, and other protection-related issues;
• assistance to unaccompanied and separated foreign minors; and
• advice and assistance with cases of detention and deportation.
Secondly, the Advocacy Team works to drive deeper systemic change in the South African society and immigration and asylum systems. The work is informed by and responsive to direct engagement with individuals and the particular problems that they experience. This work includes:
• commenting on draft legislation, policies and implementation, to government and international bodies;
• raising awareness through online communications, newsprint, and documentary making, among other things;
• providing trainings to government officials, civil society, citizens, and members of refugee and migrant communities;
• conducting and publishing research;
• engaging in strategic litigation; and
• finding durable solutions to specific issues, like the cessation of refugee status.
• To strengthen legal protections, address discrimination and assist with access to rights and services afforded by law, including access to labour, education and health.
• To promote transparency, accountability and efficiency in the immigration and asylum systems.
• To advance positive systemic change in South African society and immigration and asylum systems.
Children's Project
The Advocacy Team provides services to children who enter South Africa alone (‘unaccompanied children’) or with adults who are not their parents (‘separated children’). Like adults, children require a valid visa or refugee permit to regularise their stay in South Africa.The Advocacy Team assists in explaining and advising children and their caregivers in terms of identifying pathways to documentation in South Africa and does appropriate referrals where necessary. Our Advocacy Officers offer support to social workers and caregivers by assisting them in:
• understanding the rights of foreign children as stipulated by the Constitution and the Children’s Act;
• beginning the process of family tracing as soon as possible;
• pursuing available pathways to legal stay; and
• accessing the services of the Department of Home Affairs.
The reality is that many unaccompanied and separated children are unable to access legal pathways to regularise their stay. In response, the Advocacy Team conducts research and high-level advocacy with the aim of broadening access to documentation options for unaccompanied and separated children.
Detention and Deportation
The detention of foreign nationals for deportation remains the pre-eminent tool of immigration enforcement in South Africa. This process has severe consequences for the individual and therefore must adhere to procedural and substantive legal protections as established by the Constitution, Refugees Act and the Immigration Act. The Advocacy Team provides assistance to individuals unlawfully detained, by communicating with the authorities and referring cases to legal partners. The Advocacy Team also facilitates workshops to inform migrants and refugees of their rights and responsibilities in relation to detention and deportation procedures. These workshops are designed to empower individuals with knowledge about the legal process to better realise their rights.
Angolan Cessation
During the 1990s, thousands of Angolans sought refuge in the new democracy of South Africa, escaping a devastating civil war that continued for decades. This group of Angolans were granted temporary refugee status by the South African government. In 2012, the UNHCR recommended that, due to changes in Angola, States could cease refugee status for Angolans. Pursuant to this UNHCR recommendation, the South African government, the UNHCR and the government of Angola agreed that Angolan refugees living in South Africa no longer needed the protection of the South African government since the Angolan civil war had concluded and political stability had returned to Angola. In 2013, the South African government announced cessation and between May and August 2013, withdrew the refugee status of Angolan refugees.
The Angolan refugee community – which has integrated into South African society over the last twenty years – was deeply impacted by the possibility of forced return. A 2014 research report by the Scalabrini Centre identified the community’s deep levels of socioeconomic integration and The Cessation, a short documentary, traced the impact of the cessation process on three Angolan refugees living in Cape Town. Aside from the socioeconomic integration of the Angolan community, an entire generation of children born to Angolan parents have never set foot in Angola and know South Africa as their home.
The legal process for cessation involved the withdrawal of refugee status through the issuance of notification to the individual by the Standing Committee for Refugee Affairs, to which he or she may respond. Angolan refugees who had their status withdrawn were provided with three options: voluntary repatriation to Angola, apply for continued refugee status, or apply for a temporary residency visa to remain in South Africa. The large majority of affected Angolans applied for the temporary residency visa. This came to be known as the ACP permit: a two-year work, study or business permit which was issued under relaxed immigration rules valid from 2013 to 2015. According to the Department of Home Affairs, 2,049 ACP permits were issued in total.
As the expiry dates of the ACP permits neared, it became apparent that ACP permit holders could not extend their permits, due the strict Regulations of the Immigration Act. In May 2014, the Scalabrini Centre began discussions with Home Affairs to advocate for continued legal stay of ACP permit holders, under relaxed immigration conditions, based on their strong ties to South Africa. The Scalabrini Centre asked Home Affairs to extend these permits or provide permanent residency. However, Home Affairs declined. In October 2015, the Scalabrini Centre submitted an application for permanent residency made on behalf of the entire category of ACP-permit holders. Home Affairs did not respond.
In November 2016, after a year of legal steps and negotiations, the Minister for Home Affairs agreed in an out of court settlement to consider and determine applications for permanent residence in terms of section 31(2)(b) of the Immigration Act for all ACP permit holders. The procedure for this application was set out in a Court Order by the Western Cape High Court.
The Court Order tasked the Scalabrini Centre with receiving permanent residency applications, and was bound to deliver these applications to Home Affairs on 15 February 2017. In December 2016, the Scalabrini Centre opened a receiving centre. This ran until 20 January 2017, at which point 1,776 Angolan applicants had come through its doors. In total, 1,241 permanent residency applications were received at the Scalabrini Centre. Angolans in other South African cities sent their applications to the Scalabrini Centre via the Legal Resources Centre, Lawyers for Human Rights and the Refugee Rights Centre at Nelson Mandela University. This brought the total number of applications to 1,737.
Angolan ACP permit holders were asked to provide a variety of documents, including police clearance certificates, proof of work, bank statements and proof of integration into South African life. Some applicants submitted applications that were hundreds of pages long, documenting two decades of lives and the Angolan community's contribution to democratic South Africa. These applications – bound in 160 files comprising of an estimated 80,000 pages – were delivered to Home Affairs on 15, 16 and 17 February 2017. It took three days to process receipts for the lodgment of these applications.
The Court Order stipulated that the Minister of Home Affairs must issue individual decisions for each applicant by 15 May 2017. An extension was agreed upon and in July 2017, the Minister of Home Affairs decided to grant conditional rights of permanent residency to the entire class, for a period of four years. Conditions included that applicants must submit photos, biometrics, police clearance certificates and supporting documents via VFS. Applicants had until 15 December 2017 to provide the necessary documentation to VFS. At the time of writing, ASP permits are being issued to applicants.
Somali Outreach
This project began in 2014 and involves weekly trips by the Advocacy Team to the Bellville office of the Somali Association of South Africa to assist individuals on a walk-in basis. This project was launched in response to the many challenges facing the refugee community in Bellville, as brought to our attention by the Somali Association of South Africa. The Bellville suburb, located roughly 25 kilometres east of the city centre, hosts a large community of Somali nationals as well as refugees from other countries such as Ethiopia and the Democratic Republic of Congo. The Advocacy Team and the Somali Association of South Africa have assisted over 700 individual clients. Besides individual case management, the Advocacy Team have held meetings with police and healthcare providers to discuss and address issues affecting refugees in the area.