Minister Malusi Gigaba. Picture: ALON SKUY
Minister Malusi Gigaba. Picture: ALON SKUY

The abuse and poor treatment of asylum seekers and refugees by the Department of Home Affairs has worsened since Malusi Gigaba took the position earlier this year, claims Lawyers for Human Rights (LHR) in an open letter sent to President Cyril Ramaphosa to mark World Refugee Day on Wednesday.

The NGO alleges that through its "very many harmful, unlawful and cruel practices and policies", the department disregards the values of SA’s Constitution and fails to comply with the UN’s and African Union’s conventions on refugees, which SA signed after the fall of apartheid.

The alleged abuses mentioned in the letter include the unlawful refusal to renew permits; the unlawful denial of the right to apply for asylum; ignoring the best interests of the child; disregarding court orders; denial of the constitutional right to dignity and family life; and detention.

However, according to Gigaba, speaking in an address at Constitution Hill recognising World Refugee Day, large numbers of economic migrants are abusing the process of asylum in SA. "We have been clear over the years that SA does not have a refugee problem. We host a manageable number of refugees, who reside in safety here in SA. Rather, we have a problem of irregular migration," he said.

Gigaba did acknowledge that, in some instances, SA was found wanting in its processing of refugees because of lack of capacity and sometimes inadequate policy responses

"In recent years, spurious asylum applications by economic migrants overwhelmed our system, resulting in inordinately long wait times for decisions for applicants. This made it extremely difficult to identify and respond to the needs of genuine refugees."

Gigaba did acknowledge that, in some instances, SA was found wanting in its processing of refugees because of lack of capacity and sometimes inadequate policy responses. "But we do our best under the circumstances, and our efforts thus far to host and provide protection to refugees has demonstrated our sincerest political will. This has made our country, over the years, one of the largest host countries for refugees worldwide."

‘Failed monumentally’

LHR, however, says there is a crisis in the department in its management of asylum-seekers and that it has failed monumentally to comply with the Refugees Act and international conventions. It says the department is "cripplingly inefficient [and] poorly managed with reports of widespread bribery and corruption".

It alleges that ordinary asylum-seekers are treated "like dogs"; spoken to dismissively; pushed and shoved; told to "go back to your country" and "there is no war in Syria"; and subjected to endless requests for bribes before they are assisted.

The letter notes that there are hundreds of thousands of asylum-seekers whose applications for refugee status have not been finalised after many years and that SA reportedly has the largest backlog in the world.

"Many have been in SA for more than five or 10 or 15 years and longer," the letter notes. Asylum-seekers have to return regularly to refugee reception offices — often very far away — to have their permits extended while waiting year after year for the final decision.

Gigaba, though, noted developments at the department included the use of technology to manage the asylum system. The implementation of an automated booking system with self-extension capability had completely transformed the Desmond Tutu Refugee Reception Office in Pretoria and alleviated huge frustration for asylum-seekers. This office was once notorious for long wait times, client frustration and chaotic crowds, and was a breeding ground for corruption and other exploitation.

Other innovations were being rolled out to other refugee reception offices such as Musina, Cape Town and Port Elizabeth, Gigaba said. A new Port Elizabeth refugee reception office would be opened in October and would "provide adequate accommodation with which to extend better services to persons with legitimate claims. It has a streamlined process flow, as wells as open spaces, baby-changing stations and multiple ablution facilities." Until then the old office would continue to serve existing clients.

‘Appointment slips’

But since Gigaba’s return to home affairs, LHR says the refugee reception offices have expanded a practice already declared unlawful by the courts — that of repeatedly turning asylum-seekers away with an extension date, giving them "appointment slips" or date-stamps on the back of their permit for a week or two months later. The effect was that they walked around with outdated permits and became undocumented "at risk of arrest and deportation and extremely vulnerable to widespread corruption and bribes by officials".

The LHR letter also noted that since 2017 new asylum seekers, who arrived in the country without passports, were being unlawfully denied the right to apply for asylum and were left undocumented and unrecorded. Passports were often impossible to obtain in circumstances of flight and war.

Regarding children, the NGO said that there are thousands of children who, as dependents of their parents, are automatically entitled to be documented as refugees or asylum-seekers, yet were repeatedly not assisted, sometimes for years.

"There is also a new trend, despite alternative verification processes, of the Department of Home Affairs insisting on expensive DNA testing to prove parenthood, which leaves children undocumented as the parent does not have the funds to pay for the test. Many schools pressured by the department, insist on children being documented and this causes great stress for the children concerned.

"There are also children who have fled war zones, or lost their parents en route or in SA, who are unaccompanied, or separated or orphaned and who are turned away at the refugee office because they are unaccompanied and minors. A High Court ruling in 2013, which held that children must, first and foremost, be documented by the department, has never been implemented and the matter remains on appeal."

The letter also highlights that many of the department’s practices have been declared unlawful and unconstitutional by the High Court. Court orders have also been ignored, as in the cases of the High Court ordering the re-opening of the refugee reception offices in Cape Town and Port Elizabeth.

A further allegation is that the department has refused to allow asylum-seekers their constitutional right to marry and has taken a court ruling that this policy is unconstitutional on appeal.

Updating policies

Gigaba said his department was in the process of updating its policies and regulations with regard to international migration and refugees. "We intend to strengthen our capacity to speedily process asylum claims through various interventions, which are complemented by our new international migration policy, which seeks to address the challenges occasioned by the large number of economic migrants who abuse the asylum-seeker process to regularise their stay in SA.

"Our new international migration policy presents a new approach to better manage irregular and economic migration, through regularisation of existing migrants already residing in SA, and creating new visa options for citizens of neighbouring countries to reside in SA legally. It is hoped that these improvements will reduce the number of unfounded applications, particularly by economic migrants, and improve speedy adjudication of asylum claims."

‘Inhumane policy’

Since Gigaba’s return, LHR maintains an "inhumane policy" had been re-implemented when asylum seekers received their final decision. This involved the immediate arrest and detention of the individual if the application was rejected. LHR said that up until Gigaba’s return, the department issued immigration notices that the subject depart in such situations, giving a rejected asylum-seeker 14 days to find legal representation to appeal the decision at the High Court or to make plans to depart the country.

Lawyers for Human Rights alleges that ordinary asylum-seekers are treated ‘like dogs’; spoken to dismissively; pushed and shoved; told to ‘go back to your country’ and ‘there is no war in Syria’; and subjected to endless requests for bribes before they are assisted

It appeared that people were wrongfully and unlawfully detained under the current immigration legislation. A number of reports over the years had highlighted the ill-treatment of detainees.

LHR said the department was using detention and deportation as "an inhumane tool to manage migration in SA", noting that 96 out of every 100 asylum applications were rejected, many on the grounds that they were fraudulent as the applicants were deemed to be "economic migrants" and not refugees as they claimed

But the NGO said that asylum-seekers who sought refuge in SA came predominantly from countries known for human rights abuses and/or countries with serious civil disorder — the Democratic Republic of Congo, Burundi, Somalia, Eritrea, Ethiopia, Syria and South Sudan. "Many decisions also disturbingly reflect that Africa appears to have no conflicts at all," the letter to Ramaphosa said.

Gigaba confirmed that, in November, a new travel document for refugees, with improved security features was launched, which complied with International Civil Aviation Organisation (ICAO) and UN High Commissioner for Refugees standards.