For many reasons, South Africa is not an easy place to seek asylum, and new research by human rights lawyer Jacob van Garderen highlights some of the difficulties faced by asylum seekers as well as other migrants. Among the worst issues he found were ongoing problems over access to safe housing, difficulties around documentation because of a government system that doesn’t appear to be working – and the ever present threat of xenophobia.
Evidence points overwhelmingly to the conclusion that South Africa’s Department of Home Affairs (DHA) is not managing to process asylum seeker claims, according to interviews and research by South African human rights lawyer, Jacob van Garderen.
He said that one of the results of the failure by DHA to carry out this critical function was that asylum seekers could not be properly documented and this affected every aspect of their lives.
According to Van Garderen, ‘in some areas, there is evidence of people waiting to appeal their asylum seeker status for over a decade and still not having had their hearing.’
‘Offices have been closed, so asylum seeker permits have lapsed. Because of difficulties in renewal, they have become undocumented.’
Speaking just before World Refugee Day, he said that the UNHCR-funded project to clear the backlog of more than 150 000 outstanding asylum claims comes at the right time. He cautioned that the focus of this initiative should not only be to eliminate the backlog but also to improve the procedures and quality of decision-making.
Focus groups in various parts of SA, asked to comment on the role of the DHA, had a number of concerns. For example, they said that DHA should improve the processes that determined refugee status so that asylum seekers’ applications for refugee status could be adjudicated more quickly and more fairly.
There was also concern about the forms of identification issued by DHA, and a call for the department to issue ‘proper’ forms of ID to refugees so that asylum seeker visas would be recognised as a valid form of identification.
Participants in the focus groups also pointed to the major problem posed by the need to constantly renew documentation. ‘The documents that have been issued to asylum seekers need to be renewed every three months. This causes constant panic as one must keep on returning [to DHA] to renew documents, the process is prolonged and one ends up with expired documents which makes their stay in the country illegal.’
Another problem listed by Van Garderen is the lack of a clear housing policy on cross-border migrants which leads to systemic violations of migrants’ housing rights. Many migrants live in overcrowded, impermanent and volatile conditions where they experience discrimination and xenophobia. Institutions like the rental housing tribunals, which should be available to anyone with a complaint against landlords, is effectively useless for migrant communities. He said that the communities where he had been researching said they rarely used the tribunals when they experienced problems about rented accommodation.
The major reason for this was that officials working at the tribunals would not hear their complaints because they were ‘foreigners’.
There was also a strongly expressed view from a focus group in one SA province that migrants were afraid to rent houses built under the government’s Reconstruction and Development Programme (RDP) from South Africans.
Explaining this fear, the group said ‘Refugees and asylum seekers are afraid of renting RDP houses from South Africans in fear that they will be attacked by locals if they do. This will fuel widespread xenophobic attacks on migrants. As a result, people are very scared to even buy or rent RDP houses from locals. The few refugees who tried to buy RDP houses (from beneficiaries of RDP houses), either lost them or ended up dead.’
But according to Van Garderen, there is some light from the courts because, when it comes to rehousing people who have been evicted, the courts distinguish between those who are documented and those who are not. Following a landmark case at the Constitutional Court, basic emergency situations have been identified when it doesn’t matter who you are: you have the right not to be made homeless. As Van Garderen puts it, ‘No person, no matter their legal status, can be evicted unless there is alternative accommodation. Thus, all occupants have to be rehoused.’
This legal fact sometimes causes concern among people on the housing waiting list who see it as ‘queue jumping’. However, ‘it is not only migrants, but also South African occupants who benefit.’ It is one of the consequences of evictions that all those evicted now have a right to be rehoused, he explains.
But despite that legal protection, in reality, migrant people are often too afraid to complain when they are evicted without a court order, something that frequently happens.
Van Garderen mentions research by Lawyers for Human Rights (LHR) into the situation of migrant women, whether officially documented or not.
LHR found that landlords were often involved in unlawful evictions and other unlawful practices against women: ‘These landlords act in the secure knowledge that migrants will be reluctant to approach state authorities for assistance, for fear of detention and/or deportation, and are unlikely to have access to legal advice and representation to seek recourse in the Rental Housing Tribunal or a court.’
Among other recommendations, LHR suggested that SA’s national department of social development, with the national department of human settlements, should explore the ‘inclusion of women refugees and asylum seekers and their children in housing assistance programmes and emergency accommodation other than shelters.’
But the focus groups, organised in major centres of South Africa as part of Van Garderen’s research, made some chilling references to xenophobia and the difficulties this causes migrants and refugees.
As one participant put it, ‘The risk of xenophobic violence and killings across the country remains high. The violence is often fueled by opportunistic actors using falsehoods about migrants illegally occupying housing meant for nationals.’
And even where someone is able to buy property in a township, that person could still experience xenophobic attacks. The violent actions by Operation Dudula are a matter of real concern. They are terrorising migrant communities and demanding that they abandon houses, even when they prove that they are the legal owners or tenants of the house, they are told to vacate or face the consequences. The real concern is that these groups act with impunity and the police rarely intervene to protect the migrants.
So, what would Van Garderen suggest should be done to deal with the shelter issues experienced by asylum seekers and migrants generally? To start with there needs to be better government coordination and a more coherent policy on documentation, he says.
And, quoting from the focus groups comments on the same issue, he lists some of their recommendations: poor migrants facing eviction should be given access to legal aid lawyers to represent them, while the format and quality of permits given to refugees and other migrants must be improved so that they are recognised by landlords and rental agencies.