Advocacy
The Scalabrini Centre Advocacy Programme offers legal advice and practical assistance to foreign individuals with the aim to ensure that their rights are respected. In addition to assisting individuals, the programme also conducts ‘higher level’ advocacy to improve implementation of existing laws and procedures and change legislation and policies where necessary.
Outline
The Advocacy Programme offers assistance to individuals on a walk-in basis for assistance with:
  • documentation and access to the Department of Home Affairs immigration system;
  • advice and assistance with cases of detention and deportation;
  • assistance to vulnerable foreign minors;
  • cessation of refugee status and accessing durable solutions;
  • access to public services such as education and healthcare; and
  • xenophobic violence, hate crimes, and protection-related issues.
Client assistance informs higher level advocacy measures such as access to SASSA grants for refugees, litigation on the closure of the Cape Town Refugee Reception Office, and the provision of durable solutions for former refugees from Angola. Daily interaction with affected individuals then informs comment on draft legislation, policies and practices, gaps in the immigration and protection framework. These experiences are communicated to affected individuals, the general public and other stakeholders through the participation in stakeholder meetings, awareness raising measures, the publication of research, and participation in local, regional and international for a regarding migration and development issues.
Objectives
  • To strengthen legal protections, address discrimination in, and assist with access to, the South African immigration system and sectors including law and order, labour, education and health.
  • To promote transparency and accountability through interventions relating to individual clients, legislation / policy and general awareness raising.
  • To deliver services in line with the Scalabrini values.
Projects
Children's Project
The Advocacy Programme at the Scalabrini Centre provides services to foreign children who enter South Africa alone (‘unaccompanied children’) or with family members who are not their parents (‘separated children’).
Where do these children come from?
The majority of unaccompanied and separated foreign children (‘UASC’) that the Advocacy Programme works with are from the Democratic Republic of Congo (‘DRC’), Zimbabwe, Burundi, Rwanda, Tanzania and Angola. The number of foreign unaccompanied and separated children in South Africa is not known but believed to be significant.
For what reasons do these children come to South Africa?
UASC come to South Africa for many different reasons. Some children have fled conflict and persecution in their country of origin and have fled alone – such a child would be a child refugee. Other children have come to South Africa to join family members as their parents are deceased or are unable to care for them in their country of origin. Other children are sent here, even if their parents are well and living, with a hope of receiving a better education in South Africa.
What are rights and protection measures for such children?
UASC are especially vulnerable to exploitation, abuse and trafficking. It is therefore very important that the protection mechanisms around them function properly to ensure their safety. The Constitution of the Republic of South Africa extends its protection to all children within its borders. Furthermore, the South African Children’s Act applies to all children within South Africa, irrespective of nationality or documentation status. Therefore, all provisions of the Children’s Act apply to foreign children, including provisions relating to child protection, and rights to education. If an unaccompanied or separated foreign child has a refugee claim, Section 32 of the Refugees Act provides for them to be assisted to apply for asylum.
What services does the Advocacy Programme provide to such children?
Many separated and unaccompanied foreign children that the Advocacy Programme work with are not documented. There often exists little or no options in terms of documentation to legalize UASC’s stay in South Africa. Documentation is central to a child’s protection, and to accessing basic services such as education and medical care. Futhermore, foreign children are often without any form of documentation can be at risk of detention and deportation as ‘illegal foreigners’ because, although the deportation of under-18s is not permitted in law, there exists no documentation to prove their age. Undocumented UASC may be at risk of becoming stateless, also, as there exists no document stating their nationality.
The Advocacy Programme therefore assists in explaining and advising children and their caregivers in terms of their documentation options in South Africa. The Advocacy Programme also conducts interviews and appropriate referrals for UASC cases. Such referrals include referrals to relevant services, schools and social workers.
The Advocacy Programme also offers support to social workers, assisting them to navigate cases of foreign minors, including advice on documentation and translation services. As per the Department of Social Development’s protocol, attempts at family reunification must first be made once a UASC case is encountered. If it is found in the child’s best interests to return to their country of origin, return should be arranged. Scalabrini’s Advocacy Programme can assist in initiating this process and contributing to tracing family members. However, it is the International Social Services who is mandated to finalise this service.
Simultaneously, the Advocacy Programme conducts research and high-level advocacy in order to address the lack of documentation options within South Africa’s immigration law. This has seen Scalabrini joining hands with other organisations working on the topic in order to find unified advocacy positions on the matter. Secondary research is conducted to better inform our advocacy work with UASC, including comparative research on UASC provisions in other countries. Primary research is also being undertaken in order to quantify the numbers of UASC placed in Child and Youth Care Centres in the Western Cape.
Where can I read more information on similar topics?
For further reading, please refer to the following links:
Scalabrini Centre of Cape Town (2016): Foreign Children in Care of the Western Cape Province
International Organisation for Migration (2013): Children on The Move
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, the Immigration Act, and the Refugees Act. Refugees and asylum seekers are protected by the principle of non-refoulement, incorporated into the Refugees Act, which forbids the return of individuals to a country where they may face a threat to their life or freedom.
While the rights of individuals in the country are protected in legislation and the Constitution, in practice rights violations are common. Enforcement operations are often undertaken in large-scale military-style 'raids' that actively make foreign nationals 'illegal' and corruption is commonplace throughout the process. The main detention centre, the Lindela Repatriation Facility, is synonymous with rights violations and poor conditions. Numerous research and investigative reports have established systematic violations of migrant rights in the detention and deportation regime including:
While the existence of unlawful practices is widespread, the judicial system has repeatedly upheld the rights of migrants in detention. Some key cases include:
The High Court directed State authorities to bring unaccompanied migrant children before a Children’s Court and ensure removal to a place of safety. The effect hereof is that no unaccompanied foreign children should be deported without a social inquiry and hearing of the Children’s Court.
In this case the Supreme Court of Appeal confirmed the constitutional right of foreigners to not be detained arbitrarily. The Court found further that Immigration Officers are required by law to exercise their discretion in regards to detaining illegal foreigners and that this discretion must be construed in favorem libertatis – in favour of liberty – in line with section 12 of the Constitution. As such, any blanket policy implemented that does not result in officials applying their minds to individual cases would be unlawful.
The Supreme Court of Appeal found that asylum seekers apprehended as illegal foreigners before lodging their claim for asylum cannot be summarily detained and deported. Individuals in this situation must be allowed to apply for asylum and released from detention. This case provides protection to individuals who intend to lodge asylum applications but have not yet done so. This protection is increasingly important as the closure of the Johannesburg, Port Elizabeth, and Cape Town Refugee Reception Offices has made applying for asylum more difficult and has increased the number of undocumented asylum seekers.
The Court found that sections 34(1)(b) and 34(1)(d) of the Immigration Act were unconstitutional as they do not afford a detainee the automatic right to physically appear and have the lawfulness of his or her detention confirmed by a court. The Court found that an appearance by the detainee in open court bestows legitimacy on the detention and ensures effective judicial oversight over the detention and deportation process.
Advocacy Programme services regarding detention and deportation
The Advocacy Programme provides assistance to individuals unlawfully detained and also facilitates workshops to inform migrants of their rights and responsibilities in relation to detention and deportation procedures. Individual assistance involves assisting family members and individuals detained through communicating with the authorities and the referral of cases to legal partners. The detention and deportation workshops are designed to empower individuals with knowledge about the legal process to better realise their rights. In 2016 19 workshops with 164 participants took place!
Angolan Cessation
Angolan cessation
What is a cessation?
Refugee status is a form of protection granted to persons who left their country of origin due to persecution or conflict. When the circumstances that caused the refugee to flee have ceased, states that host refugees may decide to end refugee status. In 2012, the UNHCR recommended that, due to the developments in Angola, states could cease refugee status for Angolans. The government of South Africa announced its intention to cease the refugee status of Angolans in 2013. This was the first Cessation implemented by the South African government. The legal process for cessation of refugee status in South Africa is set out in the Refugees Act No. 130 of 1998. Briefly, the process involves the withdrawal of refugee status through the issuance, by the Standing Committee for Refugee Affairs, of notification to the individual, to which he or she may respond. Read more here.
What happened to Angolan refugees whose status was ceased in 2013?
Angolan refugees had their refugee statuses withdrawn between May and August 2013. They were provided with three options: Voluntary repatriation to Angola, application to continued refugee status, or a temporary residency visa to remain in South Africa. The large majority of affected Angolans applied for the temporary residency visa, which was issued in an Angolan passport. This came to be known as the ACP visa: a two-year work, study or business permit which was issued under relaxed immigration rules. According to Home Affairs, 2,049 ACP permits were issued in total. The impact of this process was covered in the media, and in a short film called The Cessation.
What happened to those holding ACP permits?
Extension of the ACP permits was subject to the regular requirements of the Immigration Act and Regulations. As former refugees ACP-permit holders were not able to fulfill the onerous criteria imposed by the Immigration Act. ACP permits were not, therefore, renewable.
This is despite a high level of socioeconomic integration as outlines in Scalabrini’s report, ‘Angola is just a picture in my mind’. The report found that 89% of respondents were employed and, on average, had been in South Africa for 18 years.
What is the latest news for ACP permit holders?
In 2014, when it became apparent that ACP permits could not be extended, Scalabrini began discussions with DHA to advocate for their continued legal stay based on their strong ties to South Africa. Following SCCT’s submission of an application for permanent residency made on behalf of the entire category of ACP-permit holders, in terms of section 31(2)(b) of the Immigration Act, no response was given and Scalabrini approached the High Court. However, following discussions between Scalabrini and DHA, the Western Cape High Court issued an Order which outlined a process by which all ACP permit-holders could apply to the Minister for permanent residence on special grounds. These applications, made in terms of Section 31(2)(b) of the Immigration Act, were to include police clearance certificates, bank statements, employment contracts and support letters.
On 15 February 2017, SCCT handed in 160 lever-arch files to DHA, documenting the lives of 1,757 applicants. Read more here, or read a news piece on this. Applicants are awaiting an outcome on their applications.
Who can tell me more?
If you have more questions on the Angolan Cessation project, please contact Charlotte on lotte@scalabrini.org.za.
Somali Outreach
Somali Outreach Project with the Somali Association of South Africa
South Africa's urban refugee protection framework is based on local integration where asylum seekers and refugees are able to independently reside in local communities and exercise their rights to liberty, engage in employment, and access state services. Local integration allows for self-sufficiency and the ability to contribute to the host country while also developing skills that may assist in reintegration in their country of origin if they are able to return. While the urban protection framework maximizes the refugee's ability to contribute to society in dignity, it also poses different protection risks than those found in refugee camps. These risks include possible detention and deportation, exploitation and harassment, exposure to criminality and violence, and discrimination in access to services and labour markets. These obstacles can be exacerbated by a lack of English language ability and/or local languages. Some of these issues remain unseen to service providers and state authorities due to the dispersal of the refugees throughout urban areas and are complicated by the fact that many urban refugees rely on self-reliance and remaining 'invisible' as a protection strategy.
Members of SASA raised many of the issues facing the refugee community in Bellville with the Advocacy Programme and the outreach project was jointly developed as a response to better reach those in need. The project began in late 2014 and involves weekly trips by the Advocacy Programme to SASA's Bellville office to assist individuals on a walk-in basis. 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. Since the project began, the Advocacy Programme and SASA have assisted over 500 individual clients and have held meetings with police and healthcare providers on issues affecting refugees in the area.
Frequently Asked Questions
In the past year the South African government has published some important policy documents that indicate a serious shift in the future of migration policy for the country. This includes a new Green Paper on International Migration, the Refugees Amendment Bill, and the Border Management Authority Bill. The Scalabrini Centre of Cape Town (SCCT) has been working with government and other stakeholders on these policy documents and legislation through participation in public consultations, workshops, and submissions on the proposals to the Department of Home Affairs (DHA) and to the Portfolio Committee on Home Affairs in Parliament. The Refugees Amendment Bill and Border Management Authority Bill have been progressing through Parliament and a new White Paper on International Migration is scheduled to be released sometime in 2017. Here we will have a look at these three policy documents and what they mean for South Africa.
What is the Green Paper on International Migration, and what does it say?
A Green Paper is a discussion document that begins the process of making a law and sets out the government views a certain issue and policy proposals to address it. The Green Paper on International Migration was released in June 2016 and sets out the plans for future migration policy in South Africa; it comes nearly 20 years after the first Green Paper on International Migration was published in 1997.
In short, the Green Paper recognizes migration as a complex phenomenon that can be beneficial for South Africa. The Green Paper speaks positively about certain aspects of migration including the need to focus on methods to harness migration as a tool for development and the need to address and facilitate legal avenues for labour migration from the Southern African Development Community (SADC) region. This is in line with the National Development Plan's call to harness migration to break patterns of poverty and to create more opportunities for decent work. The Green Paper also contains a strong African-focus and speaks about an ultimate goal of achieving the free movement of people, goods and capital in SADC member states which is also being advanced by the African Union in its Agenda 2063 development plan. However, the Green Paper has a different tone in relation to those seeking international protection as asylum seekers. Currently, South Africa’s policy of 'non-encampment' means that asylum seekers and refugees are free to move within the country, to settle where they are able to live meaningful lives. The plans proposed in the Green Paper would instead see asylum claims processed in a ‘processing centre’ near the country's northern borders. Furthermore, the Green Paper recommends removing the right of asylum seekers to work and to study in South Africa, relying instead on the provision of shelter and necessities by non-governmental organisations and UNHCR. Other restrictions include extending the number of years a refugee must be in the country from 5 to 10 years before applying for permanent residence. The changes to the asylum system are of grave concern to the SCCT which is outlined in our submission on the Green Paper as well as our submission made in partnership with the Centre for Child Law and Lawyers for Human Rights focusing on the needs of children and migration policy.
What is the latest news with the Green Paper?
Submissions on the Green Paper could be made by any stakeholder and were due in September 2016. After government considers the input of stakeholders, it will then publish a more refined document in the form of a White Paper which is a broad statement of government policy which future legislation should align with. The the Department of Home Affairs recently held a national conference on international migration in Johannesburg to discuss specific issues and as of May 2016 the White Paper has been approved by Cabinet and will be released to the public in the near future.
What is the Refugees Amendment Bill, and what does it say?
The Refugees Amendment Bill (2016) seeks to amend the Refugees Act of 1998 which has been described as 'one of the most advanced and progressive systems of protection in the world'. While the protection system is progressive on paper, it has suffered from implementation issues since its inception. As a response, the Bill proposes significant changes to the asylum system and contains many of the same proposals made in the Green Paper, but is largely silent on how these changes will be implemented in practice and in light of the existing implementation challenges. Some changes are administrative; for example, the Bill wants to make a more flexible system for the appeal process to increase efficiency within the appeal process which currently features massive backlogs. However, many of the provisions seek to add further layers of bureaucracy and duties into the application and adjudication process which will not address efficiency or implementation challenges currently plaguing the system.
Like the Green Paper, the Bill shifts the responsibility of providing shelter and support to asylum seekers to UNHCR and friends and family, as opposed to asylum seekers supporting themselves. This proposal has not been fully elaborated on, but it indicates that asylum seekers would not be able to work in South Africa if they are able to receive support from friends / family or from UNHCR and other charitable organisations. In the appeal process, the Refugee Appeals Authority will replace the current Refugees Appeal Board to make a more flexible and efficient appeal process. Other proposed changes include provisions for the abandonment of asylum seeker's claims if an asylum seeker is over thirty days late in extending their asylum permit and increased exclusions from refugee status.
What does the SCCT think about the Refugees Amendment Bill?
The SCCT made submissions on the Draft Refugees Amendment Bill to DHA in 2015 as well as to the Portfolio Committee on the current version of the Amendment Bill before Parliament. The submissions have recognized that the high number of asylum applications made in South Africa has strained the capacity of DHA to effectively administer the asylum system but at the same time, DHA must demonstrate the political will to properly implement the Refugees Act and ensure the integrity of the asylum system and ensure that asylum seekers’ rights, under national and international law, are fulfilled. Our submission concludes that, should the current system for processing asylum applications be provided with better resources and capacity, that many of the problems encountered by DHA could be solved. For example, if Refugee Status Determination Officers and the Refugee Appeal Board had more resources and training, the current asylum system could function more effectively, especially if these targeted adjustments were complemented with a special SADC work visa for low- to mid-skilled migrants as discussed in the Green Paper. Given the challenges facing the current system including systemic challenges with access to Refugee Reception Offices, systemic challenges in refugee status determination processes, and endemic corruption, the SCCT believes that many of the restrictive proposals are unduly harsh, disproportionate to the challenges they address, and unlikely to pass Constitutional muster. The likely result will be the exclusion of many legitimate refugees through no fault of their own. The current system allows for asylum seekers’ and refugees’ freedom of movement and right to work which allow asylum seekers and refugees to live meaningful lives and these rights must be protected.
What is the current status of the Refugees Amendment Bill?
As of May 2017, the Refugees Amendment Bill is due to be presented to the National Council of Provinces in June after being passed by the National Assembly earlier this year.
What is the Border Management Authority Bill?
The Border Management Authority Bill seeks to change the way our borders are managed. At the moment, different aspects of managing our borders are managed by different arms of the state. For example, SARS manages customs at the borders, the National Defense Force defend the borders, and DHA regulate the entry and exit of people. The new Border Management Authority Bill creates new border management regime with elements of different government agencies working under one entity that would be managed by DHA.
What is the current status of this Bill?
At the time of writing the Border Management Authority Bill did not pass through the National Assembly as it did not receive enough votes. The Bill will be placed back on the roll and voted on again at a later date.
What does the SCCT think of this Bill?
The SCCT made submissions on the Draft version of the Bill to DHA in 2015 as well as on the current Bill before the Portfolio Committee on Home Affairs highlighting our concern at how the legislation would be implemented and the amount of power over border functions consolidated under one agency. Our comments on the first version highlighted the lack of reference to international human rights law and non-refoulement specifically, and we are pleased to see specific reference has been made to the need for officers performing border controls functions to exercise their powers in line with the fundamental rights of persons as under Chapter 2 of the Constitution, public international law obligations, and with proper consideration of vulnerable groups including victims of trafficking, asylum seekers, and refugees. On other issues in the current Bill, we remain concerned about the possible duplication of roles and implementation challenges that the creation of a new entity may encounter. We agree with other organisations (such as Business Leadership South Africa) that SARS should remain responsible for the management of custom revenue and that any alterations to the management of the border must be subject to appropriate checks and balances.
I want to know more. Who can I ask?
Please contact Corey here: corey@scalabrini.org.za