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:
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 http://www.refugeerights.uct.ac.za/usr/refugee/Working_papers/Working_Papers_4_of_2011.pdf
International Organisation for Migration (2013) Children on The Move – http://reliefweb.int/report/world/children-move
Save The Children (2009) - Children Who Cross Borders in Southern Africa – http://www.savethechildren.org.uk/resources/online-library/children-who-cross-borders-southern-africa-regional-seminar
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 cessation?
Refugee status is a form of international protection granted to persons who are compelled to leave their country of origin due to acts of persecution perpetrated against them, or a situation of conflict or war. When the circumstances that caused the refugee to flee have ceased, states that host refugees may decide to end the extension of international protection to the individuals. The civil war in Angola was concluded by the Luena Memorandum of Understanding in 2002. According to the office of United Nations High Commissioner for Refugees (UNHCR), this had led to durable and lasting changes in the political and security climate of the country. A recommendation to invoke the cessation clause as provided for under the 1951 Refugee Convention was issued. Prompted hereby, the government of South Africa announced its intention to cease the refugee status of Angolans in 2013. For more information on the legal aspect of cessation processes and a review of the international legal framework, see Ceased Circumstances and the end of Refugee Status by Corey Johnson.
What is the legal process for cessation?
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.
Between May and August 2013, Angolan refugees were provided with three options upon the cessation of their refugee status:
1. Voluntary repatriation to Angola
Angolan refugees who wished to return to Angola were assisted by UNHCR. Flights were covered and a stipend was provided.
2. Continued refugee status
As per Section 5(2) of the Refugees Act, a refugee who ‘is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself or herself of the protection of the country of nationality’ may apply to the Standing Committee for Refugee Affairs for exemption from cessation, on the grounds that continued international protection is needed.
3. Alternative immigration status
Angolan refugees were offered an alternative immigration status in the form of a Temporary Residence Permit, granted under relaxed requirements of the Immigration Act and Regulations. Applicants required an Angolan passport, a police clearance certificate, and proof of employment or enrollment in studies. The permit categories issued were: work, study, business, retired person and dependent permits. The special permits were granted for two years. Refugee status of Angolans, who opted for the alternative documentation, was cancelled. According to Home Affairs’ 2013/4 annual report 2,049 permits were issued to former-Angolan refugees as a result of the cessation.
Media coverage on the cessation of refugee status of Angolan nationals
• On 3 May 2013, Niren Tolsi of the Mail & Guardian published an article discussing the effect of the cessation process on Angolan refugees in South Africa entitled ‘Angolan refugees fear repatriation’.
• On 16 May 2013, Haru Mutasa of Al Jazeera broadcasted a segment discussing the cessation process and focused on an Angolan family in Cape Town.
• In March 2015, The Cessation was released by the Scalabrini Centre of Cape Town. This short documentary mapped the impact of the Angolan Cessation on three of Cape Town’s Angolan refugees.
Latest news on the position of former Angolan refugees
Extension of the two-year temporary residence permit will be subject to the regular requirements of the Immigration Act and Regulations. The shift from one legal framework to another is highly problematic for former refugees, who are unable to fulfill the onerous criteria imposed by the Immigration Act. A report, ‘Angola is just a picture in my mind’ was compiled by the Scalabrini Centre of Cape Town in April 2015. The report outlines the socio-economic integration of Angolans affected by cessation of their refugee status in South Africa. Some of the findings included that Angolan refugees had been resident in South Africa for an average of 18 years, and that 89% of participants were employed. It recommends that immigration regulations are relaxed, so that affected Angolans could apply for an extension of their permit. Whilst Scalabrini engaged in discussion with Home Affairs regarding the extension of these permits, the Department was not moved to offer further special dispensation to affected Angolans.
Latest media coverage on the extension of stay
• On 24 August 2015, Jan Cronje published an article in the Weekend Argus titled, ‘work permit axe hangs over former Angolan refugees’.
• On 4 September 2015, Farren Collins published an article in The Times newspaper titled ‘SA to send refugees home’.
• On 4 September 2015, the Department of Home Affairs issued a press release regarding the Angolan Cessation process.
• On 8 September 2015, SABC news channel on DSTV touched on the Angolan topic, interviewing a representative of the Angolan community and the director of the Scalabrini Institute for Human Migration in Africa.
• On 4 September 2015, The Times newspaper published an article titled, ‘SA to send refugees home’ by Farren Collins.
• In reaction to The Times newspaper piece, the Department of Home Affairs released a media statement regarding the Angolan Cessation on 4 September 2015.
• On 17 September 2015, Lawyer for Human Rights released a press statement on the matter.
Download and Print the Court Order:
Scalabrini Centre of Cape Town & Others v The Minister of Home Affairs & Others – Court Order – Updated 23 August 2016