| Mass
influx in South Africa?
April 1, 2005
Update:
At the time this column was posted on April 1, 2005, the “intake
days” system is apparently under review by the Department
of Home Affairs. However, most asylum seekers are as yet unaware
of the potential change in policy and have therefore still
arrived at the Johannesburg center assuming that today is,
as originally scheduled, an intake day. More than 1,000 people
were reported outside the center this morning in a chaotic
scene, and DHA has indeed called in the police forces to manage
the crowd.
Any further changes to policy
will be addressed in a subsequent column.
Mass influx in recent history
What is mass influx?
There is no official qualitative or quantitative definition,
though a general understanding has been large-scale movements
of persons fleeing situations of conflict into countries which
lack the capacity to protect and assist them effectively.(1)
Generally, the term is thought to involve some aspect of suddenness,
though commentators have argued that it could also be used
to refer to refugee populations that become large over time,
such as the millions of Afghans who fled into Iran and Pakistan
over the course of the 1980s-1990s. In Europe, the term has
been used to refer to the hundreds of thousands of refugees
from the Balkans who sought protection throughout Europe from
the wars that enveloped their homelands during the 1990s.
It was because of mass influx that Macedonia closed its borders
to Kosovars in 1998. Mass influx was also a primary concern
of Turkish authorities in the aftermath of the first Gulf
War, when Iraqi government reprisals displaced large swaths
of northern Iraq’s Kurdish population.
Sub-Saharan Africa is no stranger to mass influx, either.
The fastest exodus of refugees in modern history occurred
during the Rwandan genocide in April 1994, when more than
a quarter of a million people fled into Tanzania in 24 hours.
Over the course of the year, 1.7 million Rwandans sought refuge
in neighboring countries.
South African officials have also used the term to describe
the situation in that country in recent years. In this case,
however, it is not a mass influx of refugees, but rather the
mass influx of people seeking asylum, which sparks their concern.
The current situation in South Africa
There is no question that South Africa has experienced a
rapid increase in the number of people seeking asylum in its
territory since it began recognizing refugees in 1993. Since
1996, an average of just under 20,000 people per year have
sought asylum in South Africa, mostly from the Democratic
Republic of the Congo (DRC), Pakistan, Nigeria, Zimbabwe and
Somalia.
To many South Africans, however, the number of asylum seekers
seems much larger than 20,000 per year, for a variety of reasons.
For one, asylum seekers reside almost exclusively in urban
areas, and thus are found in larger concentrations in smaller
geographical areas rather than spread evenly throughout the
country. The tendency of asylum seekers to gravitate toward
and remain in urban areas is in part because it is relatively
easier to find work in cities, but also due to the fact that
all stages of the asylum application process must occur at
a designated refugee reception office – of which there
are only five in the country; each in a major urban center.
Thus it makes practical sense for asylum seekers to stay closest
to where they can most adequately meet their economic and
legal needs, and these relatively large concentrations in
turn make asylum seeker populations appear larger than they
may be in reality.
The key reason that the numbers appear so large, however,
is the huge backlog of applications from previous years that
have yet to be processed. So while South Africa received,
for example, 35,920 new asylum applications in 2003 (the most
recent year for which official statistics are available),
these new applications were in addition to the more than 48,000
applications still outstanding from previous years –
for a total of more than 84,000 asylum seekers.
Such a large backlog of applications combined with at best
no change and at worst an increase in the number of new applicants
has made it difficult for the South African Department of
Home Affairs to get a handle on the situation. The Backlog
Project, an initiative co-sponsored with UNHCR in 2000-2001,
did help to reduce the backlog in the year or so of its operation.
Once it was completed, however, the backlogs jumped back up
again, this time even larger than before the project was started.
| Since 1996, an
average of just under 20,000 people per year have sought
asylum in South Africa, mostly from the Democratic Republic
of the Congo (DRC), Pakistan, Nigeria, Zimbabwe, and Somlia. |
Government attempts to deal with the situation
Thus the discussion about “mass influx”: the
number of persons seeking asylum in South Africa is overwhelming
the institutions charged with dealing with them. So just as
countries like Macedonia or Turkey have cited the lack of
capacity of their refugee and asylum institutions as a reason
that they cannot fully live up to their protection obligations
under the Refugee Convention, the government of South Africa,
particularly the Department of Home Affairs, has suggested
and/or tried a multitude of different emergency mechanisms
aimed at stemming the problem – not all of which are
in keeping either with the Convention or with South Africa’s
own domestic legislation, the Refugees Act of 1998.
For example, as recently as 2004, the refugee reception center
in Johannesburg was accepting no more than 25 asylum seekers
per day for initial applications (full hearings come at a
later date). This number was further limited with the introduction
of a policy to only accept initial applications from specific
regions on certain days of the week – Mondays from West
and North Africa, Tuesday from the Horn of Africa, Wednesday
from outside the African continent, and Thursday from the
Great Lakes and Southern Africa (the office is closed to the
public on Fridays for administrative work). The policy was
not posted in a clear manner to the public, however. As a
result, many hundreds of asylum seekers from the “wrong”
regions found themselves waiting in line outside the centers,
sometimes overnight, to find the next morning that their proper
day to arrive had, in fact, occurred the day before. Even
those asylum seekers who did arrive on the proper day for
their region of origin would not gain entry to the center,
however, unless they were among the first 25 individuals in
line. (2)
These policies did not succeed in reducing either the number
or backlog of applications at the center. If anything, they
merely lengthened the amount of time asylum seekers waited
for their initial hearing and the concomitant issuance of
the so-called “Section 22 permit” – the
temporary permit allowing an asylum seeker to reside legally
in South Africa pending determination of his or her claim.
Faced with this problem, officials at the center began issuing
appointment letters (for initial hearings) scheduled weeks
or months in the future. The appointment letters, however,
were not legally binding documents and thus did not afford
the asylum seeker legal status in South Africa during the
period in which he or she was waiting for the appointment.
Nor were the appointment letters necessarily honored –
rather, many were merely renewed over and over, some for more
than a year at a time. (3)
When neither the numerical and regional limits nor the appointment
letters succeeded in reducing the number of asylum seekers
approaching the Johannesburg reception center, the Department
of Home Affairs went one step further – introducing,
in late 2004, the concept of “intake days.” The
Johannesburg center will now only deal with new asylum seekers
(from anywhere) on these specified days – generally
once, or occasionally twice per month, sometimes even less
frequently. On these days, all new asylum seekers approaching
the center are issued with “tokens” requiring
them to come back to the center on a given date (anywhere
from a few days to one month in the future) to lodge their
application.
While this process could, in theory, work for those individuals
who arrive in South Africa near an intake day and are aware
of the process, it is a serious problem for the vast majority
of those who arrive in the country on any day other than the
roughly one intake day per month. These individuals approach
the reception center as required by law, only to find that
they must remain without legal status – subject to arrest,
detention, deportation and without the right to work –
for anywhere from a few days to more than one month. The next
intake day – the first one since February 4, 2005 –
is scheduled for early April 2005. The Department of Home
Affairs anticipates that so many new asylum seekers will approach
the center on that day that it has already requested police
support to deal with the crowd (4)– and, in fact, at
the time this column was posted, reports from Johannesburg
are that more than 1,000 people were waiting outside the center
in a “chaotic” scene, with the police attempting
to manage the situation.
One could argue that it should’ve been clear to the
Department of Home Affairs that any strategy aimed solely
at reducing the number of individuals allowed to approach
its offices on any given day would not in turn reduce the
overall number of asylum seekers in the country, nor the backlog
of applications from years earlier. Rather, it has succeeded
only at increasing the length of time most asylum seekers
remain in South Africa without legal status.
Unable or unwilling?
These various emergency mechanisms and the debates about
their legality and effectiveness belie another key issue,
however: whether or not what is happening in South Africa
is, in fact, mass influx. Determining the true capacity of
a country’s refugee regime is not easy – nor is
separating issues of capacity from the purely political. Just
because a country has yet to develop sufficient status determination
mechanisms to deal with its asylum seeker population does
not automatically mean that the country is experiencing a
mass influx. If that were the case, one could imagine that
it wouldn’t take long before countries of all sizes
and resource levels would shrink their refugee and asylum
bureaus to an absolute minimum and cry “mass influx”
as asylum seekers continued to arrive in the same numbers
as before – clearly not in keeping with the spirit of
the Refugee Convention.
Rather, the capacity issue can been seen through the same
lens as that often used by the international community to
label individual governments as either “unwilling”
or “unable” to protect (or sometimes both). A
state might have plenty of capacity to develop and maintain
refugee status determination mechanisms but may, for any of
a variety of reasons, choose not to do so. Similarly, a state
might very much desire a strong and effective refugee regime,
but is unable to actually create it due to lack of resources.
It is the latter that can most legitimately claim to experience
a mass influx when faced with large scale inflows of those
in need of protection. States that are party to the Refugee
Convention but have chosen not to create or support an effective
refugee determination and protection regime should face international
scrutiny if they cite mass influx – due to the lack
of institutional capacity – as a reason to deny protection
to those in need.
South Africa likely falls somewhere in the middle of these
two extremes. On the one hand, a relatively steady figure
of 20,000 asylum seekers per year into an overall population
of 45 million is quite small; a much lower per capita percentage
than many European countries, for example. And while South
Africa is certainly not as well-resourced as most European
states, it is by far the wealthiest country and largest economy
in sub-Saharan Africa, and positions itself as a both an economic
and “cultural” leader in Africa. It has a strong
government and judicial system. On the other hand, however,
it is still a country in transition, and its refugee laws,
policies and procedures are less than a decade old. Comparing
South Africa’s ability to effectively manage its asylum
seeker population with that of, say, Spain (a country with
roughly the same population but which receives about one-fourth
the number of asylum seekers) or Sweden (which receives a
similar number of asylum seekers but has one-fifth the population
of South Africa) is unfair – both countries have much
higher per capita GDPs and a much longer history of dealing
with asylum seekers than does South Africa.
At the same time, though, the government of South Africa
has also not done everything that is within its power and
capacity to manage asylum seekers within its territory in
an effective manner. For example, it did not retain the more
than three dozen lawyers specially trained by UNHCR through
the Backlog Project to manage the mounting applications. It
does not post signs or any other information regarding the
asylum process in or around the reception centers to assist
asylum seekers in helping themselves (nor is information readily
available from the DHA website), and it does not adequately
train other government entities, including the police forces,
in recognizing the documents of refugees and asylum seekers.
Nor does the government always live up to the obligations
it set for itself through domestic refugee law – for
instance, providing interpreters at refugee reception centers
or issuing temporary asylum seeker permits that allow (as
required by law) the bearers to work or go to school while
their applications are pending.
Is South Africa really experiencing mass influx?
So is South Africa really experiencing a mass influx of asylum
seekers? In this commentator’s opinion, no. Even if
it were, however, it would still be obliged to “ensure
that asylum seekers are fully protected [and] to reaffirm
the basic minimum standards for their treatment.”(5)
Asylum seekers who are not allowed to approach reception centers
for one month or more, and therefore forced to remain illegal,
are not “fully protected.” Rather than devising
ways to solve the problem and protect as many people as possible,
the South African government has called on its police force
for crowd control. •
Author's Note:
(1) See, for example, UNHCR Executive Committee Conclusion
No. 22, “Protection of Asylum-Seekers in Situations
of Large-Scale Influx.” 21 October 1981; UNHCR Standing
Committee on International Protection, “The scope of
international protection in situations of mass influx,”
UN Doc EC/1995/SCP/CRP.3, 2 June 1995; European Committee
on Refugees and Exiles (ECRE), “Observations of the
European Council on Refugees and Exiles on the European Commission’s
draft directive on temporary protection and responsibility
sharing,” January 2001 (available at http://www.ecre.org/statements/tpcomments.shtml).
(2) Concerns about corruption and the taking of bribes by
those in and outside the refugee reception centers –
including as a means of gaining entry – are rife, but
outside the scope of this column.
(5) UNHCR Executive Committee, Conclusion No.22, “Protection
of Asylum-Seekers in Situations of Large-Scale Influx.”
21 October 1981.
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