TEASA Submission on the Citizenship, Immigration and Refugee Protection White Paper

TEASA continues to place the South African evangelical voice within the national policy debate. Our most recent contribution to this debate is our comments to the Department of Home Affairs, in submission to their Citizenship, Immigration and Refugee Protection White Paper.

In preparation for this submission, TEASA hosted a webinar on 25 January, where we were in conversation Dr Gabriela La Foy, a legal consultant, legislation and policy expert, lecturer, researcher, and public speaker; and Mr Chris Pullenayegem a refugee policy analyst, a lawyer specializing in refugee and immigration law and policy, and co-director of the Migration and Refugee Network of the World Evangelical Alliance. A recording of the webinar can be viewed using this link.

TEASA invites our members to find ways to make their engagement with public policy formulation, a prophetic imperiative.


TEASA Submission on the Citizenship, Immigration and Refugee Protection White Paper

1. Introduction

1.1 TEASA is a Christian organisation with a particular interest in the white paper due to the core values we embrace for human solidarity, both in the country and in the global community.

1.2 Additionally, as a Christian organisation, TEASA is concerned with the rule of law being adhered to for social cohesion and the benefit of all in society.

1.3 As an organisation with brothers and sister across the continent, TEASA has experienced many challenges with the issuance of visas, backlog in spousal permits that place families at risk, and asylum seeker applications that take years to resolve.

1.4 TEASA welcomes the white paper on Citizenship, Immigration and refugee protection, and applauds it for striking an important balance between the national interest and what it means to belong to a global community of nations. It gives due respect to international law and the obligation of states to protect their territorial sovereignty, their nation and borders and the obligation to provide refuge and humane treatment to persons who may be fleeing from their home countries for a range of valid reasons.

2. The Purpose of the White Paper

For the purposes of our submission TEASA will highlight some of the key areas of concern to us.

2.1.The white paper aims to deal with the influx of refugees coming in the country, seeing that South Africa is in the top ten receiving country in the world for asylum seekers.

2.2.The crisis of migration has led to violent clashes between foreign nationals and citizens which threaten the security of the state.

2.3. The current legislative framework is fragmented, weak, ineffective, outdated and is difficult to implement.
1.1. The gaps in the law are being exploited by asylum seekers, refugees and foreign nationals to acquire citizenship irregularly and prematurely.
1.2. The asylum system and economic migrants are sometimes conflated, resulting in overburdening of the asylum system. New legislation must provide for economic migrants and asylum seekers separately.
1.3. South Africa signed up to a number of international refugee conventions in the early democratic period. Unlike other countries, SA did not enter any reservations. These conventions require South Africa to provide socio-economic rights to refugees which the country cannot afford.
1.4. Excessive amounts of litigation on immigration issues are clogging the court rolls, draining the fiscus and paralysing the working of the Department of Home Affairs.

3. Policy Proposals

In an order to deal with the challenges highlighted, the white paper makes a number of policy proposals. This submission will not deal with all them but only highlight a few of the key ones that TEASA believes will affect the overall immigration situation in the country.

3.1.The Government must review and withdraw from the 1951 Convention and 1961 Protocol (the UN Refugee Conventions) with a view to acceding to them with reservations as other countries have done. The new Refugee protection and Immigration legislation must provide for reservations and exceptions as contained in the 1951 Convention and the 1969 OAU Convention because South Africa does not have the resources to grant the socio-economic rights envisaged in the Constitution to refugees.

3.2.The policy framework must provide for the establishment of an Advisory Board which comprises representatives of the Department of Trade, Industry and Competition, Labour and Employment, Tourism, Education, South Africa Police Service, South African Revenue Service, Education, International Relations and Cooperation, Defence & Military Veterans and Director-General of the Department of Home Affairs. This board will tackle cross-cutting issues related to immigration.

3.3.The Refugee Act, the Immigration Act and Citizenship Act must be repealed, and replaced with single legislation covering citizenship, immigration and refugee protection in order to comprehensively address institutional and structural challenges.

3.4.The White Paper proposes changes regarding citizenship by tightening the criteria for granting citizenship.

3.5.The Minister’s powers to grant exemptions (special permits) such as those given to Lesotho and Zimbabwean nationals must be reviewed because the current economic realities do not justify retention of the powers.

3.6.The Minister should be empowered to reject the asylum claim of an asylum seeker who has a connection to a first safe country.

4. Policy Discussion

Policy proposal: Withdraw from the 1951 and 1961 UN Conventions and accede to them again, but with reservations.

TEASA’s concern is that, firstly, both domestically – in terms of our Constitution and internationally, refugee law and human rights law are inextricably intertwined. For instance, internationally – the UN Declaration on Human Rights and the CERD Convention are applicable. At the domestic level, the courts have already developed a considerable amount of jurisprudence which confers rights on refugees in South Africa. These decisions remain part
of our law and will certainly be relied upon in any potential court challenges brought against the new policy and legislation.

The provisions of the Promotion of Administrative Justice Act (PAJA) are also relevant, as we are obligated to ensure that all administrative processes are in line with the Constitution, PAJA and decided cases.

Secondly, there is a concern that certain areas contained in the Convention have passed into the canon of customary international law. For instance, the principle of non-return or refoulement. Customary international law is binding irrespective of whether we are signatories to the Convention or not. This means that policy provisions which are in conflict with international customary law will likely be struck down by the Constitutional Court.

Given these considerations we advise caution in the finalization of the white paper. It is crucial to ensure that resultant legislation does not infringe upon customary international law, does not conflict with South Africa’s obligations under applicable human rights instruments, and is consistent with principles established in existing case law. This approach ensures a balance between policy objectives and legal and ethical responsibilities.

5. Systemic issues

Systemic and Institutional Policy Proposals:

The majority of the policy proposals in this regard are sensible and if implemented, will undoubtedly have a positive impact on immigration control and border management. We agree with the White Paper that systems and process issues in the DHA need to be addressed.

Finally, the issue of capacity needs to be addressed. For years there has been a lack of capacity in this area. Drafting new policy and legislation will not solve this problem. But aligning the mandate with the budgetary allocation will. Too often the real issues of under -resourcing, institutional inefficiency and poor systems are swept under the carpet. Hopefully the policy has been costed and the funds will be allocated prior to adoption of the legislation. The team working on this important area needs to be capacitated to ensure that it can deliver the reforms promised in the policy.

6. Conclusion

The White Paper is a commendable effort to address the very real issues in our immigration and refugee protection systems. The extensive consultation process is likewise commendable. TEASA thanks the Minister for his engagement with all sectors or South Africa. We trust that our inputs will be well received

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