When dealing with instances of civil unrest and upheaval, the world is usually forced to witness the event in two tragic stages. First, we see a crisis unfolding in a neighbouring country during which a huge number of people are displaced and abused. Then, after a few days or weeks, we begin to hear stories of mass human migrations as we watch endless waves of desperate people wash up against our borders. Of course, the treatment and protection of these individuals can’t be left to chance and various laws and policies have been enacted to ensure that the situation is dealt with in an orderly and just manner. But what are these laws exactly? What kind of protocols are followed when dealing with asylum seekers and who gets accepted anyway? What is the Law on Refugees?
Regulations regarding refugees and their subsequent treatment in South Africa are chiefly governed by two pieces of legislation –
- The 1951 Refugee Convention – This UN treaty, along with many other complementary documents, provides a set of guidelines for countries around the world with regard to the definition of a refugee and the rights of such a person. South Africa is obligated to ensure that its laws are in keeping with the points brought out in this treaty.
- The Refugee Act 130 of 1998 – This act provides the relevant instructions needed when dealing with refugees and asylum seekers in South Africa including things like; their reception, how applications are to be handled, and the powers of the various committees and review boards which have been established to manage the process.
What does the Law say about Refugees?
From a strictly legal perspective, a refugee is a person who has been granted a ‘Refugee Permit’, and thus, has been given refugee status. This status recognises them as a person who has fled their home country due to a well-founded fear of being persecuted based on certain factors such as their race, religion, political opinion, etc. Additionally, refugee status may be granted to those fleeing war, occupation, mass civil unrest, and other similar events. The law also makes provisions for the dependents of these individuals.
Simply put, people are often given refugee status if it is determined that sending them back to their home country would put them, personally, at risk of death or inhumane treatment such as torture. In this sense, South Africa, like most countries, operates under a principle of ‘Non-refoulement’ which forbids a host nation from sending these individuals back into such a dangerous environment.
Individuals who show up to the South African border seeking aid are not automatically recognised as refugees, instead, there is a process that must be followed to achieve refugee status.
- Asylum Seeker – When a person shows up to a port of entry wishing to apply for a refugee permit, they will be given the title of asylum seeker while they wait for their application to be considered. In the event that their application is rejected, an asylum seeker will be asked to leave the country or they will be deported.
- Interviews and Decision – This period of consideration can take a number of months during which time various permits are issued and interviews are conducted. Broadly speaking, the process unfolds like this –
- An asylum claim is made
- A section 23 ‘asylum transport permit’ is granted (valid for 14 days)
- The individual makes an application at a Refugee Reception Office where an interview is conducted and data is collected
- A section 22 ‘asylum seeker’s permit’ is granted (valid for 6 months)
- The individual can work and study in South Africa during this time while their application is decided upon
- A second interview is conducted before the section 22 permit expires
- The individual is or is not given a section 24 refugee permit (valid for 2 years) which grants refugee status (this process may be appealed if the application is rejected)
- Refugee Status – A refugee permit may be renewed after a request is made and a review is conducted. After living in South Africa for 5 years on a refugee permit, an individual may apply for a permanent residence permit.
*It should be noted that Chapter 6 of the Refugees Act gives the Minister of Home Affairs special authority during times of mass refugee influx. During these periods, the Minister may grant unconditional refugee status to certain groups or may designate certain areas for the reception and accommodation of asylum seekers and/or refugees.
What Rights are given to Refugees?
Officially recognised refugees in South Africa are given almost all the same rights as natural-born South Africans. This includes, but is not limited to –
- The right to work.
- The right to study.
- Full legal protection.
- The right to the same basic health and primary education services that the broader population is entitled to.
A notable exception exists with regard to voting rights as refugees and asylum seekers do not have the right to vote in South Africa.
Are there Laws that Protect Refugees?
As noted, refugees are mainly protected via customary international law which prohibits their deportation to a country in which they will suffer certain forms of persecution or will have their personal safety or lives threatened based on certain factors.
Section 2 of the Refugee Act enshrines this international doctrine in South African law, and thus, ensures the continuation and practice of the non-refoulment principle.
The Act also points out the various protections that are to be provided to refugees and asylum seekers to ensure that they do not suffer mistreatment while in the country, although, certain parties have lamented the curtailing of various rights of refugees by the government.
What are the International Laws for Refugees?
As mentioned, the UN’s 1951 Refugee Convention provides many internationally upheld guidelines and rules with regard to refugees. Some of the points mentioned by the treaty include –
- The definition of a refugee.
- The rights of an individual who is granted asylum.
- The responsibilities of the nations who grant asylum.
This treaty expands upon the rights found in Article 14 of the UN’s Universal Declaration of Human Rights which, following the horrors of WW2, sought to create a charter of fundamental and universal human rights.
In Conclusion – What does the Law say about Refugees?
South Africa has a relatively progressive set of laws with regard to the reception and treatment of refugees and asylum seekers. These laws work in harmony with the international rulings set out by the United Nations which seek to safeguard the fundamental human rights of such individuals.
Potential refugees to South Africa must show up to an official port of entry and will need to fulfil a set of prerequisites before they are granted refugee status. Interviews will be conducted and data will be collected from these asylum seekers while their applications are processed. If the alleged dangers faced by the asylum seeker are viewed as genuine, they may be granted various temporary asylum permits before eventually being granted a refugee permit.
A refugee permit grants most of the rights that are enjoyed by regular South Africans with the notable exception of voting rights. A refugee permit is valid for two years but it is possible to have it renewed. After living in South Africa for a period of 5 years, a refugee may apply for permanent residency. If an asylum seeker’s application for refugee status is denied, they will be asked to leave the country or face deportation. Refugees and asylum seekers are also granted certain fundamental rights by both the South African government and by various charters of the United Nations.
Generally speaking, a principle of non-refoulment is enacted when dealing with asylum seekers. Simply put, this means that a host nation may not send people back into an area in which there is a real threat of death or inhumane treatment. This includes instances of civil unrest or occupation and/or when there is a well-founded fear of being persecuted because of certain factors such as a person’s race, culture, political views, etc. Provisions are also made for the dependents of such individuals.
Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.
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