2.1.1 Instruments that the state has currently acceded to/ratified:

• The 1951 United Nations Convention Relating to the Status of Refugees (ratified on 12 January 1996, without reservations)
• The 1967 United Nations Protocol Relating to the Status of Refugees(acceded on 12 January 1996, without reservations)
• The 1969 Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (ratified on 15 December 1995, without reservations)

2.1.2 Current reservations made:

All instruments that South Africa is party to were ratified without reservations.

2.2.1 List of legislations and regulations related to asylum and refugee protection as well as migration:

• Refugees Act 130 of 1998 latest amendment: Refugees Amendment Act 11 of 2017 – commencement date 1 January 2020
• Refugees Act 130 of 1998, Refugees Regulations
• Children’s Act 38 of 2005
• The Prevention and Combating of Trafficking in Persons Act No 7 of 2013
• Immigration Act 13 of 2002
• South African Citizenship Act 88 of 1995
• Births & Deaths Registrations Act 51 of 1992

2.2.2 List of major judicial decisions related to asylum and refugee protection:

• Arse v Minister of Home Affairs and Others (25/2010) [2010] ZASCA 9; 2010 (7) BCLR 640 (SCA) ; [2010] 3 All SA 261 (SCA); 2012 (4) SA 544 (SCA) (12 March 2010)
• Ashebo v Minister of Home Affairs and Others (CCT 250/22) [2023] ZACC 16; 2023 (5) SA 382 (CC); 2024 (2) BCLR 217 (CC) (12 June 2023)
• Bula and Others v Minister of Home Affairs and Others (589/11) [2011] ZASCA 209; [2012] 2 All SA 1 (SCA); 2012 (4) SA 560 (SCA) (29 November 2011)
• Ersumo v Minister of Home Affairs and Others (69/2012) [2012] ZASCA 31; 2012 (4) SA 581 (SCA); [2012] 3 All SA 119 (SCA) (28 March 2012)
• Ruta v Minister of Home Affairs [2018] ZACC 52 (20 December 2018)
• Scalabrini Centre, Cape Town v The Minister of Home Affairs (1107/2016) [2017] ZASCA 126 (29 September 2017)
• Tantoush v Refugee Appeal Board and Others (13182/06) [2007] ZAGPHC 191; 2008 (1) SA 232 (T)
• Irankunda and Another v Director of Asylum Seeker Management: Department of Home Affairs and Others (821/2022) [2024] ZASCA 87; [2024] 3 All SA 384 (SCA); 2024 (10) BCLR 1302 (SCA)

2.2.3 List of strategies and action plans related to asylum, refugee protection, and migration:

• National Plans of Action for the Promotion and Protection of Human Rights 
• National Action Plan on Women, Peace and Security 2020-2025
• National Action Plan (NAP) to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance
• National Strategic Plan on Gender-Based Violence & Femicide: Human Dignity and Healing, Safety, Freedom & Equality in our Lifetime
• White Paper on International Migration for South Africa
• Draft National Labour Migration Policy for South Africa

Refugee

Section 3 of the Refugees Act 130 of 1998 provides a definition of a refugee and stipulates that a person qualifies for refugee status if that person:

Asylum seeker

A person who is seeking recognition as a refugee in the Republic.

Child

Any person under the age of 18 years. This is the same definition as provided in the Children’s Act of 2005.

Unaccompanied and/or separated child

An unaccompanied foreign child is a child who is not a South African national, who has been separated from both parents and other relatives and who is not being cared for by an adult who, by law or custom, is responsible for doing so – for example, a child who entered the country on his own and has no parents or any family members in the country.

Separated child

A separated foreign child is a child who is not a South African national and who is separated from both parents or from the previous legal/customary guardian, but not necessarily from other relatives – for example, a child being cared for by an aunt or uncle, sibling or distant relative.

Family

1. husband and wife (including the parties to a civil union); (ii) parents, guardians (and other holders of parental rights and responsibilities) and children; and (iii) relatives related through blood and affinity.

Victim of trafficking

This is in terms of the https://lawlibrary.org.za/akn/za/act/2013/7/eng@2017-08-02:

1. a child who is found to be a victim of trafficking after an assessment in terms of section 18(6); or

2. an adult person who has been issued with a letter of recognition as provided for in section 19(10).

Common refugee elements defined in national law

The international legal definition of a stateless person is “a person who is not considered as a national by any State under the operation of its law”.

Returnee

“Returnee” is the term used by the international community to identify a person who was a refugee, but who has recently returned to his/her country of origin. Labelling someone a returnee is thus dependent on the person’s prior refugee status.

3.1.1 The principle of non-refoulment in the national context

The Principle of non-refoulement is incorporated in section 2 of the Refugees Act 130 of 1998, and provides as follows:

The Refugees Act 130 of 1998 allows for the removal of recognised refugees and asylum seekers through section 28, and provides as follows:

1. Subject to section 2, a refugee, asylum seeker or categories of refugee or asylum seeker may be removed from the Republic on grounds of national security, national interest, or public order.

2. A removal under subsection (1) may only be ordered by the Minister.

3. Any visa or status granted to a refugee or asylum seeker who is removed from the Republic in terms of this section is revoked.

4. If an order is made under this section for the removal from the Republic of a refugee or asylum seeker, any dependent of such refugee or asylum seeker who has not been granted asylum may be included in such an order and removed from the Republic.

5. Any refugee or asylum seeker ordered to be removed under this section may be detained pending his or her removal from the Republic.

3.2.1 National Laws and regulations regarding entry of asylum seekers

A person who enters the Republic of South Africa through a port of entry (a land border post, airport or harbour) and claims to be an asylum seeker is issued with a section 23 Permit, which is a non-renewable “asylum transit visa” in terms of the Immigration Act.

When entering the Republic of South Africa, one is supposed to declare one’s intention to apply for asylum at an official port of entry. Here, one would be required to provide “biometrics” (fingerprints, a photograph, etc) as well as other information to an immigration officer. This information would include details such as one’s name and surname; date of birth and age; nationality of origin (home country); and “habitual place of residence” (where one has lived for a long period of time) before travelling to South Africa.

3.2.2 Limitations on access to asylum during periods of National Emergency

When the COVID-19 lockdown was implemented in 2020, the Department of Home Affairs closed their offices and put a hold on the provision of their services. Then, as lockdown measures were eased, gradually the Department resumed the provision of certain services. Since March 2020 the Refugee Reception Offices (RROs) have remained closed to new asylum seekers. The Department of Home Affairs resumed services in respect of South Africans, but these services did not extend to refugees and asylum seekers. In May 2021, a new online system became operational that allows asylum seekers and refugees to complete online applications for the renewal of their permits. During this period the Minister of Home Affairs granted a blanket extension for all asylum seekers and refugees whose permits expired on or after 15 March 2020. Affected refugees and asylum seekers struggled to have their permits accepted and recognised by employers, hospitals and authorities.

4.1.1 Access to reception facilities for asylum seekers

Asylum seekers are entitled to access to reception facilities. There are currently five Refugee Reception Offices in South Africa. Thus, access is limited geographically.

PRETORIA: Desmond Tutu Refugee Reception Centre

Situated: Corner of Es’kia Mphahlele & Johannes Ramokhoasa Streets

Marabastad

Pretoria, Gauteng

(012) 395 4175/4000

MUSINA: Musina Refugee Centre

Situated: 8 Harold Grenfell Street

Musina, Limpopo

(015) 534 5300

DURBAN: Durban Refugee Centre

Situated: 37 Che Guevara, Glenwood

Durban, KwaZulu-Natal

(031) 361 1201

GQEBERHA: Gqeberha Refugee Reception Centre

Situated: Nashua Building, corner Lavinia and Stone Street, North End

Gqeberha, Eastern Cape

(041) 404 8304/05/11

CAPE TOWN: Cape Town Refugee Reception Centre

Situated: 12 Grenville Avenue, Epping, Cape Town, Western Cape

(021) 441 9200/1973

4.1.2 Further accommodations made for reception of particularly vulnerable groups among asylum seekers

There are no such accommodations made in terms of the country’s legislative and regulatory regime.

4.3.1 Social and legal assistance offered to asylum seekers

South Africa has adopted an “integration” approach, as opposed to the encampment approach more commonly found in other countries (such as Namibia and Botswana) when it comes to allowing and accommodating asylum seekers and refugees within the country.

Accommodation: given that refugees in South Africa are not based in camps, one of the most pressing initial needs for those seeking asylum in the country is accommodation. Often the need to find accommodation is surpassed by the obligation to present themselves at a Refugee Reception Office, without delay and within five days, in order to be documented. This means that South Africa is unlike most other developing countries, where refugees are accommodated at camps administered by UNHCR, and where basic assistance is provided in respect of shelter, food and healthcare. Unlike other countries, refugee reception centres do not provide accommodation on arrival; neither are there any other “official” government-backed social assistance schemes for newcomers. In line with this, refugees have no special rights with regard to accommodation. Rather, there are a few NGOs and refugee service providers – some of whom operate as implementing partners for UNHCR – who offer limited material assistance to those desperately in need of accommodation. As a result, apart from a limited number of refugees who end up living in shelters, the majority live in accommodation that is secured through the private sector.

Food and clothing: when people enter the country wanting to seek asylum, they usually rely on charities and other NGOs in order to access basics such as food and clothing. In certain somewhat more established or well-organised refugee communities, the community may have already established organisations and other support structures or networks which render assistance to newcomers from their specific communities or countries.

Medical care: asylum seekers and refugees have access to the same basic health services and primary education that South Africans do. This is in line with section 27 of the Constitution, which guarantees everyone the right to basic healthcare. In addition, in 2007 the Department of Health issued a National Revenue Directive which among other things confirms the right of refugees and asylum seekers, with or without a permit, to access basic healthcare on the same basis as South African citizens.

Legal aid: an attorney who offers free legal services is often constrained in who they may take on as a client. The UCT Refugee Rights Unit is constrained to only help those who fall within the South African legal definition of a "refugee"; and the Legal Aid Board has a "means" test that clients must satisfy. This assesses the income, assets and liabilities of a person to see whether they have the required level of financial need.

Social counselling: there are a few NGOs and refugee service providers, some of whom operate as implementing partners for UNHCR, that offer social counselling.

All services provided by UNHCR and its implementing partners in South Africa are free of charge.

4.4.1 Right to Family Unity

The Refugees Act 130 of 1998 is beneficial to refugees, particularly in relation to family unity, in that it has a more extensive definition of a refugee than to the 1951 United Nations Convention. section 3(c) of the Refugee Act 130 of 1998 stipulates that a person qualifies for refugee status if that person is a dependant of a person contemplated in paragraph (a) or (b).

4.4.2 Socio-economic rights afforded to asylum seekers: work, education healthcare and freedom of movement

The Refugees Act 130 of 1998 provides the regulatory framework that gives effect to the protection, rights and entitlements of both asylum seekers and refugees in accordance with the Constitution and applicable international instruments in South Africa.

Medical care: asylum seekers and refugees have access to the same basic health services and primary education that South Africans do. This is in line with section 27 of the Constitution, which guarantees everyone the right to basic healthcare. In 2007, the Department of Health also issued a National Revenue Directive which among other things confirms the right of refugees and asylum seekers, with or without a permit, to access basic healthcare on the same basis as South African citizens.

Education: The Constitution of the Republic of South Africa sets out education rights in Chapter 2, section 29(1) which guarantee every person in South Africa, citizens and non-citizens alike, the right to a basic education, which the State, through reasonable measures, must make progressively available and accessible.

The Schools Act 84 of 1996 states in section 5(1) that “a public school must admit learners and serve their educational requirements without unfairly discriminating in any way”. Furthermore, section 27(g) of the Refugees Act 130 of 1998 entitles refugees “to the same basic health services and basic primary education that inhabitants of the Republic receive from time to time”.

Work: Asylum seekers are entitled to work in South Africa, and all section 22 asylum-seeker permits are issued bearing the condition “Right to work and study granted”. The fact that there are delays in the asylum-seeker process is one of the main reasons the Supreme Court of Appeal upheld an asylum-seeker’s right to work in the case of Minister of Home Affairs and Others v Watchenuka and Others (010/2003) [2003] ZASCA 142; [2004] 1 All SA 21 (SCA) (28 November 2003).

Freedom of movement: Asylum seekers can settle anywhere in the country and enjoy freedom of movement. This approach contrasts with that of the majority of African states, who place asylum seekers in camps.

4.4.3 Access to UNHCR facilities for asylum seekers

In the execution of its mandate of providing international protection to refugees, UNHCR promotes access to international refugee instruments and other relevant human rights instruments. UNHCR provides technical legal support to national legal, administrative and judicial structures, including assistance in reviewing draft legislation. It also provides training to Government officials and promotes the inclusion of refugee and human rights components in the training modules of police, immigration and judicial officials.

4.5.1 Determination of ‘Child’s Best Interest’ principle among asylum seeker children

In the case of McCall v McCall, the court put forward a list of factors that can serve as a guide for determining the “best interests of the child” standard.

The factors identified by the court are:

1. [T]he love, affection and other emotional ties that exist between parent and child, and the parent’s compatibility with the child;

2. the capabilities, character and temperament of the parent and the impact thereof on the child’s needs and desires;

3. the ability of the parent to communicate with the child and the parent’s insight into, understanding of and sensitivity to the child’s feelings;

4. the capacity and disposition of the parent to give the child the guidance he or she requires;

5. the ability of the parent to provide for the basic physical needs of the child, the so-called “creature comforts”, such as food, clothing, housing and other material needs – generally speaking, the provision of economic security;

6. the ability of the parent to provide for the educational well-being and security of the child, both religious and secular;

7. the ability of the parent to provide for the child’s emotional, psychological, cultural and environmental development;

8. the mental and physical health and moral fitness of the parent;

9. the stability or otherwise of the child’s existing environment, having regard to the desirability of maintaining the status quo;

10. the desirability or otherwise of keeping siblings together;

11. the child’s preference, if the Court is satisfied that in the particular circumstances the child’s preference should be taken into consideration;

12. the desirability or otherwise of applying the doctrine of same-sex matching (particularly, in this case, whether a boy of 12 [the child concerned was a boy of nearly 12] should be placed in the custody of his father); and (m)any other factors relevant to the particular case with which the Court is concerned.

4.5.2 Current measures to address separated asylum seeker children

All foreign unaccompanied or separated children in South Africa should be presumed to be in need of care and protection. Most foreign unaccompanied or separated children lack identification documents. A Children’s Court inquiry must be conducted when dealing with separated or unaccompanied minors, as they are in need of care and protection.

4.5.3 Registration of births and documentation among asylum seeker children

A fundamental right of children in South Africa is to have their birth registered, irrespective of their nationality or the immigration status of their parents. All children born in South Africa must have their birth registered with the Department of Home Affairs (DHA). Once a birth has been registered with the DHA, a child will be given an unabridged birth certificate which has the information of the parents and their nationality on it. A birth certificate in South Africa is not equivalent to citizenship; after the child’s birth has been registered, the child must be correctly documented.

The birth can be registered by a parent, a guardian, or any other person who is legally responsible for the child.

Sometimes a parent’s lack of documentation can prevent a parent or caregiver from registering the birth of the child within the 30 days allowed.

5.1.1 Reception official at first instance

Section 21(1)(b) of the Refugees Act 130 of 1998 states that an application for asylum must be made to a Refugee Reception Officer. A Refugee Status Determination Officer, is a Department of Home Affairs official who conducts an interview with an asylum seeker in order to determine their claim for asylum. The status of their function, and thus their decisions, is administrative and is subject to various internal appeal avenues before resorting to an external appeal mechanism, being judicial review. Section s24 of the Refugees Act 130 of 1998 states that Refugee Status Determination Officers must have due regard for the provisions of the Promotion of Administrative Justice Act No. 3 of 2000, and may consult with or invite a UNHCR representative to furnish information on specific matters.

Currently claims for asylum are not submitted at the border. At the border, the person must express their intent to apply for asylum (as per section 23 of the Immigration Act); and after their biometrics and fingerprints are taken, they are issued a transit visa which allows them the five days within which they are must report to a Refugee Reception Office.

5.1.2 Procedural and legal guidance and assistance offered to asylum seekers ?

Section 24(2) of the Refugees Act 130 of 1998 requires Refugee Status Determination Officers to ensure that the asylum applicant fully understands the procedures, as well as their rights and responsibilities and the evidence presented. Furthermore, section 21(7) of the Act maintains that it is presumed that a person who indicates a language of preference in an application for asylum understands and is proficient in the language in question. In the Refugees Act Regulations, Regulation 8(5) states that an applicant must indicate his or her language of proficiency on Form 2 (DHA-1590). This language will be presumed to be the language the applicant understands.

While a person seeking asylum can be provided with a competent interpreter during the interview, they may also bring their own interpreter to assist them, at their own expense.

In terms of section 24B(4) of the Refugee Act 130 of 1998, the Refugee Appeals Authority allows legal representation on the request of the asylum seeker. The asylum seeker would need to seek legal representation for review proceedings; legal advice and representation is not provided for in the initial Refugee Status Determination Officer interview phase.

Section 24 of the Refugees Act No 130 of 1998 states that the Refugee Status Determination Officer must provide a decision either granting asylum or rejecting the application. If the asylum claim is rejected, the Refugee Status determination officer must furnish the reasons for the decision. The decision may be used to inform a future appeal or review. There is no provision in the Refugees Act or Regulations enabling the asylum seeker interviewed to view the notes in order to provide further explanation or clarify contradictions that may exist in these notes.

5.1.3 Availability of Legal Aid

Legal Aid is not available at the Refugee Reception Offices. One must approach the Legal Aid Board or one of UNHCR’s legal implementing partners (e.g. UCT Refugee Rights Unit) for legal assistance and representation.

5.2.1 Confidentiality of personal information and data

In terms of section 21(5) of the Refugees Act 130 of 1998, confidentiality of asylum applications and the information contained therein must be ensured at all times. However, it does provide an exception in that on application and on conditions it deems fit, the Refugee Appeals Authority may allow any person or the media to attend or report on its hearing, subject to a number of conditions. Some of the conditions include that the asylum seeker gives consent, or the Refugee Appeals Authority concludes that it is in the public interest to allow the media or any person to attend or report on the hearing after taking a number of relevant factors into account. Among others, the factors in question include the interest of the asylum seeker in retaining confidentiality, the need to protect the integrity of the asylum process and the need to protect the identity and dignity of the asylum seeker.

Section 21(5) of the Refugees Act provides as follows: “The confidentiality of asylum applications and the information contained therein must be ensured at all times, except that the Refugee Appeals Authority may, on application and on conditions it deems fit, allow any person or the media to attend or report on its hearing if: (a) the asylum seeker gives consent; or (b) the Refugee Appeals Authority concludes that it is in the public interest to allow any person or the media to attend or report on its hearing, after taking into account all relevant factors, including: (i) the interests of the asylum seeker in retaining confidentiality; (ii) the need to protect the integrity of the asylum process; (iii) the need to protect the identity and dignity of the asylum seeker; (iv) whether the information is already in the public domain; (v) the likely impact of the disclosure on the fairness of the proceedings and the rights of the asylum seeker; and (vi) whether allowing any person or the media access to its proceedings or allowing the media to report thereon would pose a credible risk to the life or safety of the asylum seeker or of his or her family, friends or associates.”

Section 21(5) of the Refugees Act 130 of 1998 maintains that the confidentiality of asylum applications and the information contained therein must be ensured at all times. However, it does provide an exception in that the Refugee Appeals Authority may, on application and on conditions it deems fit, allow any person or the media to attend or report on its hearing subject to a number of conditions. Further than this, there is no law or regulation that provides for confidentiality from all staff mentioned above other than those specifically dealing with the asylum application. Confidentiality required in certain professions would apply as it does to any citizen.

5.3.1 Registration of family members of registered asylum seekers

Section 3(c) of the Refugees Act 130 of 1998 allows for dependents of asylum seekers and refugees to qualify for the status of the file holder. This means that dependants such as the spouse or child of an asylum seeker or refugee may take on the status of the primary applicant, known as the file holder. This process is known as family joining, and the dependents would be put under the primary applicant’s file and documented.

In terms of section 1 of the Refugees Act, a dependant, in relation to an asylum seeker or a refugee, means any unmarried minor dependent child, whether born prior to or after the application for asylum, a spouse, or any destitute, aged or infirm parent of such asylum seeker or refugee who is dependent on him or her, and who is included by the asylum seeker in the application for asylum, or in the case of a dependent child born after the application for asylum, is registered in terms of section 21B(2).

Regulation 8(12) of the Refugees Act Regulations provides that any dependent in terms of section 3(c) of the Refugees Act must appear in person for a hearing before a Refugee Reception Officer.

In accordance with section 27A, all asylum seekers have the right to written recognition as an asylum seeker, pending the finalisation of the application for asylum. Dependants of an asylum seeker can also apply for documentation in terms of section 3(c) of the Refugees Act 130 of 1998. This section allows for dependants of asylum seekers and refugees to qualify for the status of the file holder. This means that dependants such as the spouse or child of an asylum seeker or refugee may take on the status of the primary applicant, known as the file holder. This process is known as family joining, and results in the dependants being grouped under the primary applicant’s file and documented. Section 21(2)(A) of the Refugees Act states that each applicant must declare their spouses and dependants, whether they are in the Republic or not.

5.3.2 Obstacles to applying for asylum while in detention

In respect of newcomer asylum seekers, as soon one expresses to the authorities a wish to apply for asylum, then one cannot be detained for immigration purposes, as section 21(1)(b) stipulates that all asylum applications must take place in person before a Refugee Reception Officer at a Refugee Reception Office. Those individuals detained would thus be prevented from submitting an asylum claim.

5.3.3 Making a claim for asylum at the border

When entering the Republic of South Africa, an individual seeking asylum must declare their intention to apply for asylum at an official port of entry. The asylum seeker is issued with an “asylum transit visa” (sometimes known as a ’section 23 visa/permit’) and advised to attend the nearest Refugee Reception Office. The asylum transit visa is valid for five days only, and is intended to allow the person seeking asylum to travel to the nearest Refugee Reception Office in order to apply for asylum.

5.3.4 Necessity of travel or identity documents for concerned persons

No identity document or travel documentation is needed for an asylum seeker to apply for asylum. An asylum seeker may not be turned away from a Refugee Reception Office for not being in possession of a transit visa issued on entrance into the country.

5.3.5 Challenges for individual asylum seeker claims for females

Section 24(2) of the Refugees Act 130 of 1998 requires that the Refugee Status Determination Officer ensures that the asylum applicant fully understands the procedures as well as their rights and responsibilities and the evidence presented. However, the law does not provide for female asylum seekers being informed of their rights in private.

5.5.1 Standard of credibility for an asylum claim

Although the Refugee Appeal Authority of South Africa (RAASA) does use certain factors when making decisions, these are not “standard/uniform” and vary between matters depending on the context and other considerations such as the personal circumstances of the applicant. Thus, applications are decided on a case-by-case basis, taking personal experience into account.

5.5.2 Provisions and standards for decision makers

No explicit provision has been made for a general standard of proof to assess credibility; however, section 4(1) of the Refugees Act sets “reason to believe” as the standard of proof to determine whether potential exclusions apply to the asylum seeker’s claim.

There are no national laws or regulations which specify details with regard to the process. This being said, to assist officials concerned with refugee status determinations in relation to claims based on the 1951 UN Convention Relating to the Status of Refugees, the UNHCR developed the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention. Despite lacking the status of law, this UNHCR handbook is widely regarded as an authoritative statement for guiding the refugee status determination process.

5.5.3 Assessment of individual claims of family members and dependents of potential refugees

If the principal applicant, otherwise referred to as the file holder, has an asylum-seeker permit or a permit indicating the individual is a recognised refugee, then any dependents who are joined to the file would receive the same status as the principal applicant/file holder, regardless of their claim.

Regulation 8(12) of the Refugees Act Regulations provides that any dependent in terms of section 3(c) of the Refugees Act must appear in person for a hearing before a Refugee Reception Officer.

5.6.1 Interview and decision making process at first instance

The asylum application must be made as soon as possible after entering South Africa. It must be made in person at a Refugee Reception Office (RRO). This is in accordance with the Refugees Act section 21(b), which states that an application for asylum must be made in person in accordance with the prescribed procedures to a Refugee Status Determination Officer at any Refugee Reception Office, or at any other place designated by the Director-General by notice in the Gazette.

In accordance with Regulation 14 of the Refugees Act Regulations, any application must be determined after an interview before the Refugee Status Determination Officer. The interview must be done in person, and the proceedings of the interview recorded.

5.6.2 Access to ‘Country-of-Origin Information’(COI) available to decision makers

Regulation 12(1)(c) entitles the Refugee Status Determination Officer (RSDO) to consider the evidence of country of origin information from a reputable source. The term “reputable source” is not defined in the Regulations, but in Katshingu v the Standng Committtee for Refugee Affairs, it was considered that UNHCR reports are reputable and should be given due weight. The central asylum authority does not publish country of origin information; however, they do consider this information from reputable sources.

5.6.3 An asylum seekers access to a decision and possibility to appeal

The personal interview report is not made available to the asylum seeker after the conclusion of their interview. The RSDO will interview the asylum seeker and provide them with a decision on their application. Access to the interview report is possible on application to the Department of Home Affairs in the case of an appeal hearing or judicial review, in terms of Rule 53 of the Uniform Rules of Court or in terms of section 18(1) of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000) [Regulation 6].

5.8.1 Asylum seekers right to appeal decisions

In terms of section 24(B) of the Refugees Act 130 of 1998, any asylum seeker whose claim has been rejected as unfounded may lodge an appeal with the Refugees Appeal Authority of South Africa. The appeal must be submitted within ten days of receiving the letter of rejection from the Refugee Status Determination Officer. However, an application for condonation may be made if there is a cause for delayed submission of an appeal.

For a manifestly unfounded rejection, or an application rejected as abusive or fraudulent, the applicant is automatically referred to the Standing Committee for Refugee Affairs (SCRA) for review. The asylum seeker may write a letter to the SCRA within 14 days of the rejection, giving reasons for leaving their home country and why they believe it is unsafe to return to their home country at that time.

The asylum seeker has the right to have their final rejections by the RAASA and the SCRA reviewed in terms of the Promotion of Administrative Justice Act (PAJA). A court may review and set aside the decision to reject the application if it can be proved that the decision was made unlawfully, unreasonably or without fairness in procedure. The review application must be launched at the High Court no later than 180 days (6 months) from the date the asylum seeker became aware of the final rejection notice.

5.8.2 Administrative assessment of appeals

The Refugee Appeals Authority of South Africa is a quasi-judicial body and is responsible for hearing and determining any appeal lodged against a decision taken by a Refugee Status Determination Officer to reject their claim for asylum as unfounded in terms of section 24(3)(c). Section 12(3) of the Refugees Act 130 of 1998 provides that the RAASA must function without bias and must be independent. The appeal board’s independence is supported by the legislative provision that the appeal board may determine its own practice and make its own rules – this is in terms of section 14(2) of the Refugees Act 130 of 1998.

Section 26(1) of the Act provides that “any asylum seeker may lodge an appeal with the RAASA in the manner and within the period provided for in the rules, if the RSDO has rejected the application in terms of s24(3)(c)”.

5.8.3 Outcome of an appeal decision: what is available to the asylum seeker

If an application is rejected in terms of section 24(3) of the Refugees Act 130 of 1998, the Refugee Status Determination Officer must furnish the applicant with written reasons within five working days after the date of the rejection, and inform the applicant of his or her right to appeal in terms of section 24B of the Act. Section 26(1) provides that any asylum seeker may lodge an appeal.

Regulation 14(1)(a) provides that “[a]n appeal in terms of section 26 of the Act must be lodged in person within 30 days of receipt by the asylum applicant of the letter of rejection from the Refugee Status Determination Officer” and s14(1)(b) provides that an appeal “must be lodged in person directly at a designated Refugee Reception Office”.

Rule 4.1 of the Refugee Appeal Board Rules, 2013, largely duplicates the Regulation in providing that:

“An appeal in terms of section 26 of the Act shall be lodged in person with the Refugee Reception Office within 30 days of receipt by the asylum seeker of the letter of rejection by the Refugee Status Determination Officer. Such appeal shall be lodged at the Refugee Reception Office where the letter of rejection was handed to the asylum seeker.”

The reasons for the decision are in writing and are only provided in English.

5.8.4 Procedures and standards of appeal hearings or interviews

With regard to decisions related to appeals processes, such decisions are supposed to be taken with reference to updated and accurate information.

The issue of whether the applicant is entitled to be present at and make representations to the Appeal Board was considered in the matter of AOL v Minister of Home Affairs. The Refugees Act empowers the Appeal Board to make its own rules and determine its own practice. However, such practice should not defeat the purposes of the Refugees Act. The court in AOL noted that “although section 26(3)(e) gives the Appeal Board the power to require the applicant to appear before it and provide information, this does not in itself provide a right to the applicant to do so”. According to the court, the fact that s26(4) provides that the Appeal Board must allow legal representation on the request of the applicant of necessity implies that (a) the applicant is entitled to be present at the hearing and (b) must be given notice of the hearing to be able to request and arrange legal representation.

5.8.5 Period between appeal hearing and final decision

Section 21(4) the Refugees Act provides as follows:

5.9.1. Children

5.9.2. Persons with disabilities

5.9.3. Women

5.9.4. LGBTQI

5.10.1 Average processing time, from the asylum claim registration to the decision on refugee status

The Refugees Act stipulates that asylum applications will generally be adjudicated by the South African Department of Home Affairs (DHA) within 180 days of filing a completed asylum application. Despite this, it is important to note that South Africa has one of the highest totals of pending asylum cases, amounting to over 184 200 cases, as – contrary to the applicable regulations – asylum seekers often remain in the asylum process for many years. It is not uncommon for people to wait up to a decade or longer.

5.10.2 Types of residence offered to refugees by legislation

South Africa’s Immigration Act 13 of 2022 sets out a procedure by which a foreign national may apply for permanent residence, and specifically includes refugees within the category of eligible foreign nationals. Indeed, the process appears to operate at the intersection of the Immigration Act and two other pieces of legislation, the Refugees Act and the Citizenship Act (particularly the Citizenship Amendment Act 17 of 2010), and the subordinate legislation of the Immigration Act itself, the Immigration Regulations.

However, section 27(c) of the Refugees Act requires a refugee to first apply for certification from the Standing Committee for Refugee Affairs that he or she will remain a refugee indefinitely. There exists no precise definition of the time period for this requirement of “indefinitely”, and the applicant must have been resident in the Republic of South Africa continuously for a period of ten years after the granting of refugee status in terms of section 24 of the Refugees Act 130 of 1998. Once a refugee has attained status as a permanent resident in terms of the Immigration Act, there remains a further minimum five-year period before such a person would be eligible to apply for citizenship.

5.10.3 Duration of refugee status

Refugee status is granted for as long as the situation and conditions continue that rendered the individual a refugee in the first place. Both asylum-seeker documents and refugee permits are required to be renewed at certain intervals, and are therefore subject to analysis of whether the individual still has a claim for refugee protection, considering the prevailing conditions in their country of origin.

5.10.4 Issuance of individual identity documents certifying refugee status

A Refugee Status Document – which is a written formal recognition of refugee status [Form 10 (DHA-1693)] from Home Affairs – is valid for four years.

A Refugee Identity Document (ID) can be applied for immediately after receiving the status document. This ID book contains an important 13-digit identification number which is linked to the reference number. The validity of the ID follows the duration of the refugee status document and requires applications for renewal in conjunction with the refugee status document. A refugee must apply for renewal of this document at the Refugee Reception Office prior to the expiry of the document. Provision for the Refugee ID is made in terms of section 30 of the Refugees Act, in conjunction with section 18 of the Refugees Act Regulations.

5.10.5 Issuing of identity documents to family members of refugees

In terms of Regulation 17(2) of the Refugees Act Regulations, upon being granted refugee status, a refugee and (where applicable) his or her dependants must be issued (in person) with a certificate of recognition as a refugee. This is then followed by section 18 in the same Regulations, which provide that any refugee who is 16 years or older must apply for an identity card or document immediately on receipt of his or her certificate of recognition of refugee status. As such, the family members in question would also be issued with ID cards.

5.10.6 The effect of familial changes on an individual’s refugee status

Section 21B of the Refugees Act 130 of 1998 provides as follows:

Given this provision, the dependant is allowed to remain in the country provided they apply for requisite recognition in terms of the Act.

5.11.1 Forms of complementary or temporary protection in legislation

In terms of section 22(1) of the Refugees Act, an asylum seeker whose application in terms of section 21(1) has not been adjudicated is entitled to be issued with an asylum seeker visa, in the prescribed form, allowing the applicant to sojourn in the Republic temporarily, subject to such conditions as may be imposed, which are not in conflict with the Constitution or international law.

Section 21(4) goes on to state that pending the decision on the application in terms of section 21, the visa referred to in subsection (1) may from time to time be extended for such period as may be required.

5.12.1. Exclusion

Grounds for exclusion under legislation

Section 4 of the Refugees Act 130 of 1998 makes provision for exclusion from refugee status, stating that:

Definition of ‘serious non-political crime’ in terms of grounds of exclusion

Section 4(1)(b) of the Refugees Act states that a person does not qualify for refugee status if there is reason to believe that he or she has committed a crime which is not of a political nature and which, if committed in the Republic, would be punishable by imprisonment.

Only a crime committed outside of South Africa, either in the refugee’s country of origin or in another country, should be considered as a ground for exclusion under this section. A refugee who has committed a serious crime in South Africa should be subject to the South African criminal justice process, and may be removed or expelled from the Republic only under section 28 of the Refugees Act on grounds of national security or public order, in the case of having committed particularly grave crimes in South Africa.

Notably, the 1951 UN Convention’s comparable exclusion clause describes the excludable crime as a “serious non-political crime”, and does not attribute a level of punishment to the crime as is done in the Refugees Act. Serious criminality in the context of article 1(F)(b) of the 1951 UN Convention is normally understood to mean acts that involve violence against persons, such as homicide, rape, child molesting, wounding, arson, drug trafficking and armed robbery. South Africa’s threshold of a crime ‘which would be punishable by imprisonment’ seems broad; it may have been more sensible to set out a specific minimum custodial sentence for guidance.

Our courts have provided some guidance on this issue. In the case of Tantoush v Refugee Appeal Board, the High Court held that the crime of theft did not fall into the category of serious crimes and that the respondents were wrong in excluding the applicant from refugee status on the basis that he was reasonably suspected of having committed theft. However, the court stated that theft in which violence or the threat of violence is used would fall into the category justifying exclusion.

The meaning of non-political

If there is no clear connection between a particular serious crime and an alleged political objective, or if the crime itself is disproportionate to the alleged political objective, it can be said that the crime is non-political. In other words, a serious crime should be considered non-political when the motives, such as personal reasons or gain, are the main feature of the specific crime that has been committed. Evaluating the political nature of a crime would entail considering the following factors pertaining to the crime: the motivation, the context, the methods and the proportionality of the crime to its objectives.

Standard of proof for exclusion

According to regulation 11(1) of the Refugees Regulations, the applicant bears the burden of proof to establish that he or she is a refugee and that he or she is not excluded from refugee status pursuant to s4 of the Act.

5.12.2. Cancellation

Substantive grounds for cancellation of refugee status under law

This is dealt with by section 36 of the Refugees Act, which deals with the withdrawal of refugee status. It provides as follows:

Redetermination of refugee status during time of cancellation

Section 36(1)(b) provides that a person who has been issued with an intention to withdraw his/her refugee status document may make written submissions to the Standing Committee for Refugee Affairs within 30 days from the date of the notice.

Access to an interpreter during cancellation proceedings

There does not appear to be a legal obligation to provide the person with the assistance of an interpreter. Usually, the notice of cancellation would be provided in English; thereafter the individual would find someone to translate the contents for them. Section 21(7) of the Act and Regulation 8(5) state that the language that the asylum seeker indicates in Form 2 (DHA-1590) will be presumed to be the language which the applicant understands.

It is useful to note that section 38(1)(f) of the Refugees Act provides that the Minister may make regulations relating to the provision of interpreters at all levels of the determination process.

Furthermore, although it may not be stated in the legislation, in practice, asylum seekers are granted some interpretation assistance for their RSDO interviews.

Access to legal counsel during time of cancellation

If the matter is taken to the Refugee Appeals Authority of South Africa, then in terms of section 24B(4) of the Refugees Act, they must allow legal representation on the request of the asylum seeker.

The right to appeal or review cancellation decision

The internal appeal mechanism would be the submission of written representations to the Standing Committee for Refugee Affairs. Once all internal remedies are exhausted, person would have the external remedy of a judicial review procedure at a High Court.

Status of a refugee prior to the finalization of cancellation

Yes, in accordance with section 21(4)(a) of the Refugees Act, a person remains documented until a decision has been made.

5.12.3. Revocation

Grounds for revocation of refugee status under law

Section 5(1)(h) of the Refugees Act provides that the Minister may issue an order to cease the recognition of the refugee status of any individual refugee or category of refugees, or to revoke such status.

Section 36 of the Refugees Act, which deals with the withdrawal of refugee status, provides as follows:

Section 36(2) of the Refugees Act provides that the Standing Committee must, in the prescribed manner, inform each affected person contemplated in subsection (1) of its intention to withdraw his or her status as a refugee, as well as the reasons for the withdrawal; and such person may, within the prescribed period, make a written submission with regard thereto: provided that no such notice is required if the withdrawal is requested by the refugee concerned.

Opportunities to appeal a decision of revocation

There are internal appeal mechanisms. If they are exhausted, the person would still have the external “avenue” of review through institution litigation through judicial review proceedings.

Provision of an interpreter during revocation process

There does not appear to be a legal obligation to provide the person with the assistance of an interpreter. Usually, the notice of cancellation would be provided in English, whereafter the individual would find someone to translate the contents for them.

It is useful to note that section 38(1)(f) of the Refugees Act provides that the Minister may make regulations relating to the provision of interpreters at all levels of the determination process.

Access to legal counsel during revocation process

Refugees and asylum seekers are allowed the assistance of legal representation. If the matter is taken to the Refugee Appeals Authority of South Africa, then in terms of section 24B(4) of the Refugees Act, legal representation must be allowed upon the request of the asylum seeker.

Status of a refugee prior to the finalization of revocation

In terms of Section 21(4)(a) the Refugees Act provides as follows:

5.12.4. Cessation

Grounds for cessation of refugee status under law

This is dealt with by section 36 of the Refugees Act, which deals with the withdrawal of refugee status. Specifically, section 36(1)(c) provides that subject to the provisions of the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000), and after consideration of all the relevant facts, the Standing Committee may withdraw a person’s refugee status if such person ceases to qualify for refugee status in terms of section 5.

Section 5, dealing with the cessation of refugee status, in turn provides as follows:

Possibility for exemptions for those being returned

Section 5(1)(e) of the Refugees Act provides that a person ceases to qualify for refugee status for the purposes of this Act if he or she can no longer continue to refuse to avail himself or herself of the protection of the country of his or her nationality, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist and no other circumstances have arisen which justify his or her continued recognition as a refugee

Then, section 5(2) provides that the abovementioned section, ie Subsection (1)(e), does not apply to 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.

Notification and information for those who are undergoing cessation

Section 5 (3) of the Refugees Act provides the refugee status of a person who ceases to qualify for it in terms of subsection (1) may be withdrawn in terms of section 36. Section 36 of the Act, in turn, provides as follows:

UNHCR’s role during applications and processing of cessation

There are currently no legislative or regulatory requirements in South Africa that require the intervention or assistance of the UNHCR during the application or cessation processes.

5.13.1 Process of returning those found not to be in need of international protection

Those who have gone through the determination process and are found to not be in need of international protection are not forced to return home, but they are forced to leave the country.

People in this situation would be issued final rejection letters. This means that the Standing Committee for Refugee Affairs has reviewed the decision of the RSDO which found their application to be manifestly unfounded or fraudulent, and has decided to uphold the decision. Thereafter, they are notified of their final rejection in writing, which states that within a certain period, they are to leave the country. According to law, they have 180 days within which to file for judicial review in respect of this decision.

Once the asylum seeker has received the final rejection letter and the time allocated for them to leave the country has lapsed, then they may be detained and then deported.

5.13.2 Execution of removal orders

The orders are in writing. They also provide the legal and factual grounds upon which they are based, via the RSDO decision. The decision explains why the asylum seeker’s claim was rejected and why they would need to leave the country. When submitting representations, the asylum seeker would also be required to sign a form. This form also states the amount of time that the asylum seeker would have to submit these representations.

5.13.3 Readmission back into the country

No, the State has not signed a readmission agreement. As of October 2020, only Cape Verde has signed a formal return and readmission agreement with the European Union, while Ethiopia, The Gambia, Cote d’Ivoire and Guinea have simply concluded informal agreements in this respect.

6.1.1 Protection against non-discrimination

The principle of non-discrimination is enshrined in section 9 of the Constitution. In some instances, a decision to differentiate between individuals may infringe on equality rights that are guaranteed through section 9(1) of the South African Constitution. If this occurs, and said differentiation is egregious, then it may be classified as a form of discrimination. In this regard, it is useful to note that the Constitutional Court has drawn a distinction between mere differentiation and discrimination; the former is dealt with through the Constitution in terms of section 9(1), while the latter is covered by section 9(3). The Constitutional Court is said to view the concept of non-discrimination as providing a legal mechanism that deals with egregious forms of inequality and different treatment effectively, while preventing or avoiding a flood of litigation.

Legislation, in the form of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), exists to be relied upon where discrimination has occurred on the basis of conduct by a public official, private individual, private institution, or organ of state. The legislation was passed to fulfil section 9(4) of the Constitution, which required that national legislation be enacted to prevent or prohibit unfair discrimination. Similarly, to section 9(3) of the Constitution which has an open list of grounds upon which discrimination can take place, covering things such as racism and sexism, PEPUDA contains a list of analogous grounds in section 1 of the Act.

6.2.1 Access to refugee travel documents or passports

Chapter 5 of the Refugees Act deals with the rights and obligations of refugees and asylum seekers. Within this chapter, section 27 (which pertains to the protection and general rights of refugees) states at subsection (e) that a refugee is entitled to a travel document if he or she applies in the prescribed manner. The travel document entitles the holder to travel outside of South Africa but forbids travelling to the holder’s country of origin.

As of 7 October 2021, the fees charged in this respect amount to R400.

6.2.2 Limitations on the right to movement

According to section 21(1) of the South African Constitution, everyone has the right to freedom of movement. Section 21(2) provides that everyone has the right to leave the Republic. This forms the constitutional basis for allowing refugees to travel outside of the country. As such, preventing them from doing so would amount to a violation of their constitutional right to freedom of movement. Furthermore, considering that South Africa has adopted an integration or urban refugee policy, there are a number of refugee reception offices across the country. Asylum seekers and refugees are therefore not required to be confined to camps; rather they are allowed to move freely across the country.

There is no exit visa if refugees or asylum seekers are departing the country for resettlement or any other long-term purpose. When it comes to resettlement, they must simply cancel their permit and get proof from Home Affairs that this has taken place.

6.2.3 Recognition of family unity under national law and regulations

As opposed to an encampment policy, South Africa has adopted an integration or urban refugee policy. Asylum seekers and refugees are therefore not required to be confined to camps; rather, they are allowed to move freely across the country. Despite this approach, with the related legal tools which support integration, the degree to which this happens in the country is low. The numerous challenges faced, and the sometimes problematic approach taken by the Department of Home Affairs in implementing the Refugees Act, directly impacts the provision of documentation for asylum seekers and refugees. Given the track record of the Department of Home Affairs and their various backlogs in relation to systems and processes in this respect, the ability for refugees to successfully integrate into the country is compromised.

6.2.4 Birth registration and documentation of children of refugees

South Africa’s Refugees Act is beneficial to refugees particularly in relation to family unity, in that it has a more extensive definition of “refugee” than the 1951 United Nations Convention does. It includes the dependants of refugees as being refugees themselves, meaning that South Africa affords derivative status to the dependants, which automatically includes immediate members of the family. Respect for the family as a unit is thus very evident through this section. Furthermore, the definition of “refugee” in terms of section 3(c) of the Act does not stipulate that the family must be present in the country at the time of the status determination. Some therefore argue that the drafters of the legislation anticipated the reunification of refugee families in South Africa.

In this regard, family members in the form of dependants such as parents, children and spouses are covered. With regard to asylum applications, section 21 of the Refugees Act contains the following relevant subsections:

Section 21B, in respect of spouse and dependants of asylum seekers and refugees, goes on to provide the following applicable subsections:

With regard to providing proof of these family or dependant relations, the following provisions from the Refugees Act Regulations are applicable:

"Section 2, which concerns the authenticity and termination of marriage, includes the following applicable subsections (1) The existence of a marriage contemplated in paragraph (b) of the definition of ‘spouse’ in section 1 of the Act must be proved, to the satisfaction of the Director-General, by a party to that marriage.

2. In determining the authenticity of a marriage declared at the time of making an application for asylum, the Refugee Status Determination Officer or any other authorised official of the Department must –

1. authenticate the marriage certificate; and

2. conduct an interview with both the parties to the marriage to ascertain the existence of a genuine marriage relationship.

3. Notwithstanding sub-regulation 2(a), where a marriage was concluded outside of the Republic, and where an original marriage certificate is unavailable, the parties to such a marriage shall submit an affidavit indicating the vital details of their marriage, including the date and place of the solemnisation of the marriage, prior to being interviewed as contemplated in sub-regulation 2(b).

4. When conducting the interview contemplated in sub-regulation 2(b) both parties must be interviewed separately, on the same date, by the same Refugee Status Determination Officer or other authorised official to determine the existence of a genuine marriage relationship, and the outcome of such interviews shall, notwithstanding the production of an authentic marriage certificate or affidavit, be regarded as definitive for the purposes of the relevant application."

Section 3, which concerns the authenticity and notification of termination of a permanent homosexual or heterosexual relationship, includes the following applicable subsections:

"(1) The existence of a permanent homosexual or heterosexual relationship contemplated in paragraph (b) of the definition of ‘spouse’ in section 1 of the Act must be proved, to the satisfaction of the Director-General, by a party to that relationship.

2. The onus rests with any person claiming a permanent homosexual or heterosexual relationship to produce evidence of the existence of such permanent relationship in regard to sub-regulation (1).

3. In determining the authenticity of a permanent homosexual or heterosexual relationship declared at the time of submitting an application for asylum, the Refugee Status Determination Officer or any other authorised official of the Department must –

1. authenticate the notarial agreement signed by both parties; and

2. conduct an interview with both parties to the relationship to determine the existence of a genuine permanent relationship.

4. When conducting the interview contemplated in sub-regulation 3(b) both parties must be interviewed separately, on the same date, by the same Refugee Status Determination Officer or other authorised official and the determination made arising from such interview, notwithstanding the production of an authentic notarial agreement, shall be definitive for the purposes of the relevant application.

5. Both parties to a homosexual or heterosexual relationship who have been issued with an asylum-seeker visa or granted refugee status in terms of the Act must, at the renewal of his or her asylum-seeker visa or refugee status, as the case may be, inform the Refugee Status Determination Officer whether or not the good faith relationship still exists by submitting to the Refugee Status Determination Officer an affidavit on a Form substantially corresponding to Form 1 contained in the Annexure."

Section 8, which concerns applications for asylum, includes the following applicable subsections:

"(8) If at any stage a Refugee Status Determination Officer reasonably suspects that a child, who has been declared a dependant in any application for asylum, has been trafficked or smuggled into the Republic, he or she may require proof of relationship in the form of the results of a paternity test, and must refer such child to the care of a representative of the Department of Social Development.

9. Any person who fails to declare a dependant child as contemplated in section 21(2A), and subsequently returns to the Refugee Reception Office to make a claim in terms of section 3(c) of the Act on behalf of such dependant child, shall be required to provide proof of relationship in the form of the results of a paternity test; failing which, such child shall be dealt with as an unaccompanied child as contemplated in regulation 10.

10. When required to do so by a Refugee Status Determination Officer, the principal asylum seeker or a dependant must provide proof of their relationship.

11. Each dependant included on an asylum application shall be issued an asylum seeker visa and must comply with the terms of the visa."

Finally, section 10, which concerns unaccompanied children and people with mental disabilities, includes the following applicable subsection:

“(7) Any person claiming to be an adoptive parent or legal guardian of a child must provide proof of relationship to the satisfaction of the Director-General.”

A fundamental right of children in South Africa is to have their birth registered, irrespective of their nationality or the immigration status of their parents. All children born in South Africa must have their birth registered with the Department of Home Affairs (DHA).

The Births and Deaths Registration Act is the applicable legislation that provides the processes for the birth registration of all children born within South Africa – whether they are born to South African or foreign parents. Coupled with this, the Regulations of the Births and Deaths Registration Act sets out the rules, forms and procedures around applying for a birth certificate in South Africa.

Once a birth has been registered with the DHA, a child will be given an unabridged birth certificate which has the information of the parents and their nationality on it. A birth certificate in South Africa is not equivalent to citizenship, and after the child’s birth has been registered the child must be correctly documented.

As for the birth registration rate among the refugee child population, no such information was readily available.

6.2.5 Freedom of religion

In order to accommodate South Africa’s diversity in the realm of belief, in the Bill of Rights Section 15(1) of the Constitution guarantees everyone the right to “freedom of conscience, religion, thought, belief and opinion”, while section 15(2) covers the circumstances in which religious observances may be conducted in state or state-aided institutions. It is useful to note that here, there is a distinction between religious observance and religious education. The former refers to acts or rituals of a religious character usually conducted at public events such as the opening of Parliament, or sporting events. The latter refers to education that occurs inside the classroom about the beliefs and teachings of various religions. Only religious observances must comply with the conditions listed in section 15(2), in the event that the observances are to be held at a state or state-aided institution.

However, there is no specific legislation in this regard which pertains specifically to asylum seekers or refugees.

6.2.6 Rights of the Refugee Child

The Constitution of the Republic of South Africa sets out education rights in Chapter 2, section 29(1) which guarantees every person in South Africa, citizens and non-citizens alike, the right to a basic education, which the State, through reasonable measures, must make progressively available and accessible.

The Schools Act 84 of 1996 states in section 5(1) that “a public school must admit learners and serve their educational requirements without unfairly discriminating in any way.” Furthermore, section 27(g) of the Refugee’s Act 130 of 1998 entitles refugees “to the same basic health services and basic primary education which the inhabitants of the Republic receive from time to time”.

The Children’s Act 38 of 2005, the foundation of South Africa’s legislative framework in respect of children’s rights, applies equally to asylum-seeker and refugee children in the same way that it applies to South African children.

6.2.7 Refugee rights to higher and tertiary education

The right to basic education, including adult basic education, is guaranteed through section 29(1)(a) of the Constitution. This right is immediately realisable, meaning there is an obligation imposed on the state to ensure that everyone has access to the right. In contrast, other aspects of the right to education in terms of section 29, such as the right to further education, are qualified. Essentially the section 29 right can be viewed as a form of hybrid, in that some aspects of the right are immediately realisable while others only require progressive implementation.

In contrast to section 29(1)(a), it should be noted that section 29(1)(b) imposes a programmatic right which is not immediately enforceable in the same manner as the former. Section 29(1)(b) provides that the everyone has the right to further education, which the state, through reasonable measures, must make progressively available and accessible. The Constitutional Court has not yet decided on a case concerning the meaning and the content of the right to further education.

6.2.8 Refugee right to state social assistance

Unlike the right to basic health care and education, the Refugees Act does not specifically mention a refugee having the right to social assistance. However, the South African government does provide social assistance to refugees under certain limited circumstances. Since October 2006, disabled refugees have been able to receive disability grants on an equal basis to South African citizens. As of March 2012, when the Minister of Social Development promulgated amendments to the Regulations to the Social Assistance Act 13 of 2004, refugees are able to access a wide range of social-assistance grants in the same manner as citizens and permanent residents do. However, this right does not extend to asylum seekers, given the temporary nature of their status.

6.2.9 Access to legal assistance afforded to refugees

Access to the Courts is secured through section 34 of the Constitution of South Africa, and the rights therein are applicable to everyone. As for legal assistance, access in this regard is limited to the same extent that it is for most South Africans, as a result of the significant cost usually entailed in securing legal services. In this regard, however, there are a number of legal-service providers across the country that provide legal services to indigent people. Some of these providers also provide their services specifically to the asylum/refugee community, while others have dedicated departments in this respect.

6.2.10 Refugee rights to property

There are no specific limitations in terms of the Patents Act 57 of 1978 with respect to related rights for asylum seekers or refugees.

There are no limitations in terms of the acquisition and transfer of immovable property, in terms of the Deeds Registries Act No 47 of 1937, with respect to foreigners such as asylum seekers and refugees. Thus it is reasonable to assume that the same principle applies in respect of movable property, unless there is specific legislation that deals with the transfer of such property. Given the wide scope of the term “moveable property”, though, this will not be considered here.

6.2.11 Refugee rights to work and conduct business

The Refugees Act makes a distinction between a refugee and an asylum seeker in that the latter is not automatically granted the right to work. Rather, in terms of section 11(h) of the Refugees Act, the Standing Committee of Refugee Affairs determines the conditions relating to study or work in the Republic under which an asylum seeker permit may be issued.

However, subsequent to the Supreme Court of Appeal ruling in the Watchenuka case, all asylum-seeker permits have been issued reflecting the condition “right to work and study granted”. Asylum seekers are allowed to legitimately engage in employment while awaiting the outcome of their asylum application.

In terms of the Refugees Act, recognised refugees who have been issued the section 24 permit are entitled to seek employment in terms of section 27(f). It is noteworthy though that the issued permit document does not contain any visible indication regarding this right to work, which to a certain extent serves as a barrier to accessing employment opportunities, especially where the law is not readily accepted or understood by potential employers. There are no specific restrictions on the right to own a business.

6.2.12 Refugee rights to financial institutions

If asylum seekers and refugees are able to gain employment, by virtue of section 27(b) of the Refugees Act refugees enjoy the rights set out in Chapter 2 of the Constitution. This in turn means that they are entitled to fair labour practices; although even when refugees are able to secure employment, there are often issues in terms of access to services such as banking and unemployment insurance.

With respect to access to banking services, especially when considering financial inclusion, it is important to note the context in which refugees and asylum seekers find themselves. Within this context, access to bank accounts allows some form of security to enable refugees to protect their money. Asylum seekers and refugees are able to access banking services such as opening up and maintaining a bank account. Previously, refugees could not own bank accounts in South Africa under the regulations of the Financial Intelligence Centre (FIC). Financial services regulations required that any applicants seeking to open a bank account produce the green bar-coded Identity Document and proof of residence. However, this changed after an agreement was finalised between the FIC, the Department of Home Affairs and the Consortium for Refugees and Asylum Seekers in South Africa (CORMSA). In line with this agreement, the Department of Home Affairs is supposed to provide banks with the ability to verify the authenticity of valid section 22 and section 24 permits that are issued in terms of the Refugees Act.

6.2.13 Labour rights and social security for refugees

Refugees are covered by numerous provisions in the Constitution in respect of labour relations – specifically in the Bill of Rights, sections 23(1), 23(2), 23(3), 23(4) and 23(5) of the Constitution, which cover labour relations in terms of various topics pertaining to fair labour practices, trade unions, employers’ organisations and collective bargaining. These rights – as is the case for all other rights contained in the Bill of Rights, except those specifically limited to South African citizens – extend to everyone including refugees. This stance was also reflected in paragraph 46 of the case Union of Refugee Women and Others v Director, Private Security Industry, where the court stated: “Under the Constitution, a foreigner who is inside this country is entitled to all the fundamental rights entrenched in the Bill of Rights except those expressly limited to South African citizens.” There is national legislation, such as the Labour Relations Act and the Basic Conditions of Employment Act, which elaborates further on these labour rights.

Since October 2006, disabled refugees have been able to receive disability grants on an equal basis to South African citizens. As of March 2012, when the Minister of Social Development promulgated amendments to the Regulations to the Social Assistance Act 13 of 2004, refugees are now able to access a wide range of social-assistance grants in the same manner as do citizens and permanent residents. However, this right does not extend to asylum seekers, given the temporary nature of their status.

6.2.14 Duties of a refugee towards host state

In respect of refugees and asylum seekers, and their obligations in South Africa, the Refugees Act contains the following two provisions:

7.1.1 Administrative and procedural standards for voluntary repatriation

Although voluntary repatriation is one of the major provisions provided for in the 1951 United Nations Convention, as well as in the 1969 OAU Convention, South Africa’s Refugees Act did not incorporate provisions which deal with voluntary repatriation specifically. This is despite the Refugees Act supposedly being in compliance with both of these conventions. Practically, it can be viewed that South Africa has overlooked the guiding principle in article 5 of the 1969 OAU Convention regarding repatriation’s voluntary nature.

UNHCR facilitates Voluntary Repatriation for asylum seekers and refugees in South Africa to return to their home country once UNHCR is satisfied as to the conditions in the home country with respect to safety. UNHCR is guided by UNHCR global positions on returns to various areas of origin, and will only facilitate returns to safe areas, so as not to place returnees at risk. It is their policy to ensure family unity; as such, they would usually not proceed with any repatriation process if it would lead to family being geographically split.

7.1.2 Voluntary repatriation in terms of especially vulnerable peoples

There is no information or statistical data regarding this topic in South Africa.

7.1.4 Voluntary repatriation in terms of unaccompanied or separated children ?

Voluntary repatriation that is facilitated by the UNHCR does not create any guarantees. However, the process of repatriating children, unaccompanied or accompanied, requires stringent tracing efforts to locate family members, verify family links and assess family reunion possibilities. The UNHCR has created a detailed guideline on the procedures to be followed before completing the voluntary repatriation of children.

7.1.4 Access to country of origin information for refugees undergoing voluntary repatriation

It is a requirement of the UNHCR Voluntary Repatriation process to keep regular and updated country of origin information on record. This is to ensure the protection of the repatriating refugee, and to keep detailed knowledge of the relevant refugee community, their culture, tradition and concerns. It is necessary for this information to be made available to the repatriating refugee so they have knowledge of any and all major events that take place which may impact their safety and security upon repatriation.

7.2.1 Progression towards self-reliance for refugees

In terms of refugees being able to sustain themselves, the following subsections of section 22 of the Refugees Act are applicable:

In terms of the Refugees Act, recognized refugees who have been issued the section 24 permit are entitled to seek employment in terms of section 27(f). However, it is noteworthy that the issued permit document does not contain any visible indication regarding this right to work, which to a certain extent serves as a barrier to accessing employment opportunities, especially where the law is not readily accepted or understood by potential employers.

7.2.2 Opportunities for naturalization under legislation

In South Africa, the Citizenship Act identifies various ways through which citizenship can be acquired. In terms of section 4 and section 5 of this Act, a major applicant with a valid permanent residence permit or exemption certificate may apply for naturalisation.

In terms of this act, section 5(1) provides as follows:

There are two exceptions to the above. One is through section 5(9), which states that under exceptional circumstances, the minister is empowered to exercise his or her discretion to grant a certificate of naturalisation to an applicant who does not comply with the residential requirements of subsection 1(c). The minister must annually table in parliament the names of any persons granted certificates of naturalisation under this subsection, with the reasons the certificates were granted.

7.2.3 Opportunities for permanent residency under legislation

In terms of section 27(c) of the Refugees Act, a refugee is entitled to apply for permanent residence in terms of section 27(d) or section 31(2)(b) of the Immigration Act after ten years of continuous residence in the Republic from the date on which he or she was granted asylum, if the Standing Committee, after considering all the relevant factors and within a reasonable period of time, including efforts made to secure peace and stability in the refugee’s country of origin, certifies that he or she would remain a refugee indefinitely.

Section 27(d) of the Immigration Act of 2002 provides that permanent residence may be issued to a foreigner of good and sound character who is a refugee referred to in section 27(c) of the Refugees Act (Act No 130 of 1998), subject to any prescribed requirements.

For this process, a BI-947 form must be submitted in addition to the following documentation:

• A full set of fingerprints
• A marriage certificate/proof of spousal relationship, if applicable
• A divorce decree/proof of legal separation, if applicable
• Proof of custody of a minor, if applicable
• A death certificate for a late spouse, if applicable
• The consent of parents in the case of minors
• Proof of judicial adoption of a minor, if applicable
• Police clearance certificates for all countries in which you resided for a period of one year or longer since your 18th birthday
• A valid temporary residency permit (if already in South Africa).

Additional documents are applicable to the different immigration categories, and these are listed in the permanent residence application Form BI-947.

7.2.4 Availability to access active migration or skilled entry schemes

Section 4(3) of the Citizenship Act provides that children born to foreign parents in South Africa and who have lived in South Africa from birth to the date of becoming a major are eligible for South African citizenship. This section was introduced into the act relatively recently, through the Citizenship Amendment Act 17 of 2010, although it only came into operation in January 2013. Section 4(3) of the Citizenship Act states that a child born in the Republic of parents who are not South African citizens, or who have not been admitted into the Republic for permanent residence, qualifies to apply for South African citizenship upon becoming a major if –

1. he or she has lived in the Republic from the date of his or her birth to the date of becoming a major; and

2. his or her birth has been registered in accordance with the provisions of the Births and Deaths Registration Act, 1992 (Act No. 51 of 1992).

There are no national laws or policies which allow or prevent refugees to access any active migration or skilled entry schemes.

7.2.5 Recognition of academic, professional, and vocational diplomas and certificates acquired by refugees in their country of origin

The South African Qualifications Authority (SAQA) and World Education Services (WES) signed a partnership agreement which allows for eligible refugees and displaced individuals to have their qualifications assessed and recognised in South Africa.

7.2.6 Inclusion of refugees in national development plans

Refugees are included, to various degrees, in the following national action development plans and policies:

• National Plans of Action for the Promotion and Protection of Human Rights 
• National Action Plan on Women, Peace and Security 2020-2025
• National Action Plan (NAP) to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance
• National Strategic Plan on Gender-Based Violence & Femicide : Human Dignity and Healing, Safety, Freedom & Equality in our Lifetime
• White Paper on International Migration for South Africa
• Draft National Labour Migration Policy for South Africa

7.2.7 Empowerment of refugee women

No, there are no such measures on a national scale from government that focus specifically on these mentioned groups. Rather, any measures in this respect are carried out on the part of certain NGOs which run programmes that are focused in this regard.