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.
- 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.
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
University of Cape Town Refugee Rights Unit (2011): Critical Challenges to Protecting Unaccompanied and Separated Foreign Children in the Western Cape: Lessons Learned at the UCT Refugee Rights Unit
Save The Children (2009): Children Who Cross Borders in Southern Africa
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:
- South African Human Rights Commission (2000) Lindela: At the Crossroads for Detention and Repatriation
- UN Working Group on Arbitrary Detention (2005) Civil and Political Rights, Including the Question of Torture and Detention: Report of the Working Group on Arbitrary Detention, Addendum: Visit to South Africa
- Roni Amit (2009) Lost in the Vortex: Irregularities in the Detention and Deportation of Non-Nationals in South Africa
- Lawyers for Human Rights (2010) Monitoring Immigration Detention in South Africa
- Nickolaus Bauer (2012) State silent as riot, illegal detention claims rock Lindela
- Roni Amit and Raul Zelada-Aprili (2012) Breaking the Law, Breaking the Bank: The Cost of Home Affairs’ Illegal Detention Practices
- South African Human Rights Commission (2014) Investigative Baseline Report into allegations of human rights violations at Lindela
- Gregory Mthembu-Salter et al. (2014) Counting the Cost of Securitising South Africa’s Immigration Regime
- Tariro Washinyira (2015) Wrongly detained and treated like dirt by Home Affairs
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. Over 150 individuals attended the workshops in 2015.
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 email@example.com.
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.