National Consortium on Refugee Affairs
Draft Refugee Bill, 1998 -- Version Reviewed by the State Law Advisors

Summary of Concerns of the National Consortium on Refugee Affairs (NCRA)1

The NCRA expresses its support for the passage of legislation relating to refugees in South Africa and status determination procedures relating to refugee applicants. The NCRA recognises the pressing need for legislation to give clarity and certainty to refugee determination proceedings, and to outline the rights and duties of refugees and refugee claimants in South Africa.

Notwithstanding this, we have substantial concerns on certain aspects of the current draft of the Refugee Bill. In particular, we believe that certain aspects of the Bill fall short of generally accepted international norms relating to refugee protection. We hope that the Portfolio Committee will exercise its oversight functions by amending the Bill to bring it into closer conformity with South Africa's obligations under the 1951 UN Convention Relating to Status of Refugees (and the 1967 UN Protocol) and the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa.

Accordingly, we make the following select recommendations which represent a consensus outline our most pressing concerns relating to sections of the most recent draft of the Refugee Bill.

Definitions
(1) It is important that Section 1, sub-section (i)(a) be amended so that it does not amount to an overly broad definition. For increased clarity, and to more accurately capture the this sub-section is intended to address we recommend the addition of the word "sole", before "purpose," so the sub-section reads:

"with the sole purpose of defeating or evading criminal or civil proceedings or the consequences thereof."

This addition would, for example, recognise the fact that prosecution in some countries may in fact amount to persecution, such as in the case of apostasy laws which mandate the death sentence for religious conversion.

(2) It is important that Section 1, sub-section (x) be amended so that it does not amount to an overly broad definition. It is important that this sub-section not capture persons with a valid claim for refugee status who have nevertheless supplied some false information or document for reasons of fear, shock or trauma arising from the circumstances under which they left their country of origin. We recommend this sub-section read:

"fraudulent application for asylum" means an application for asylum based on facts, information, documents or representations which
(a) are material to the outcome of the application,
(b) the applicant knows to be false, and
(c) have been supplied or made without reasonable cause.

Refugee Status (Inclusion)
(3) It is very important that Section 3, sub-section (a) be amended so that it is consistent with the 1951 Convention from which it is drawn. We strongly recommend that the Bill adopt the definition mandated by the Convention in its entirety, and read:

"owing to a well-founded fear of being persecuted by reason of his or her race, tribe, religion, nationality, political opinion, or membership of a particular social group, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or, not having a nationality and being outside the country of his or her former habitual residence is unable or, owing to such fear, unwilling to return to it; or"

We believe it is particularly important that the wording "membership of a particular social or political group" (contained in the current draft of the Bill) be changed to "political opinion, or membership of a particular social group" to reflect the wording and intention of the Convention.

Refugee Status (Exclusions)
Section 4, as it stands in the Draft Bill, contains several serious changes to the scope of the exclusion clauses contemplated in the 1951 UN and 1969 OAU Conventions. We believe that these changes constitute serious breaches of international refugee law. Accordingly, we strongly recommend the following amendments:

(4) Section 4, sub-section (1) currently allows for a standard of proof which is below that required by the 1951 UN and 1969 OAU Conventions. As the consequences of the application of the exclusion clauses may amount to extreme punishment (including death), we strongly recommend that the Bill adopt at least the minimum standard of proof contemplated under the Conventions, and accordingly be amended to include the word "serious", such that it reads:

"A person does not qualify for refugee status if there are serious reasons to believe that"

(5) Section 4, sub-section (1)(b) dramatically broadens the scope for application of the exclusion clause to include any crime of a non-political nature which would be punishable by imprisonment in South Africa. We consider that this would constitute a serious breach of the minimum requirements for exclusion anticipated under international refugee law, and strongly recommend this sub-section adopt the language of the Conventions, such that it reads:

"he or she has committed a serious non-political crime outside the Republic prior to his or her admission into the Republic as a refugee"

(6) Section 4, sub-section (1)(d) is not a ground for exclusion contemplated under international refugee law and, as worded, raises the serious risk of returning an asylum-seeker to a country where there may be inadequate refugee status determination procedures, inadequate protection against refoulement, or in which they would not be safe. Accordingly we recommend

the deletion of Section 4, sub-section(1)(d).

Standing Committee for Refugee Affairs
(7) The Bill recognises the importance that the refugee determination procedure function independently and free of bias. We believe it is important that the Bill also explicitly state that the determination procedures be free from political interference and foreign policy considerations. Accordingly we recommend Section 9, sub-section (2) be amended to read:

"The Standing Committee must function without any bias, must be independent, and must be free from political interference."

(8) As the Bill stands, the appointment and removal of members of the Standing Committee lie exclusively within the powers of the Minister. These procedures contrast with those followed by other independent statutory bodies such as the CCMA, and may compromise the independence of the determination structure. Accordingly, we strongly recommend an independent appointment procedure such as that followed for the CCMA be provided for by the Bill. The process of selection should be transparent and allow for consultation with interested parties such as the South African Human Rights Commission, the office of the U.N. High Commissioner for Refugees and relevant NGO’s.

(9) Given that the Standing Committee must decide any matter of law referred to it by a Refugee Status Determination Officer [under Section 11, sub-section (f)] we believe it is important that at least one member of the Standing Committee be legally qualified. Accordingly we recommend that a new sub-section be added after 10(1)(a) which requires that the Standing Committee consist of:

"at least one member who is legally qualified"

(10) Section 11, sub-section (e) (Powers and duties of the Standing Committee), has omitted from the power to review asylum applications those which have been found to be abusive or fraudulent. For consistency, we recommend that this sub-section be amended to read:

"must review decisions by Refugee Status Determination Officers in respect of applications found to be manifestly unfounded, abusive or fraudulent".

Refugee Appeal Board
(11) Section 12 of the Draft Bill does not guarantee the independence of the Appeal Board, although there is an equivalent statement relating to the Standing Committee. An effective appeal mechanism must contains guarantees of independence and freedom from bias or political interference. We therefore strongly recommend an additional sub-section be added to section 12, which reads:

"The Appeal Board must function without any bias, must be independent, and must be free from political interference."

(12) As with our concerns relating the Standing Committee, the Bill currently allows that the appointment and removal of members of Appeal Board lies exclusively within the powers of the Minister. These procedures contrast with those followed by other independent statutory bodies such as the CCMA, and may compromise the independence of the determination structure. Accordingly, we strongly recommend an independent appointment procedure such as that followed for the CCMA be provided for by the Bill. The process of selection should be transparent and allow for consultation with interested parties such as the South African Human Rights Commission, the office of the U.N. High Commissioner for Refugees and relevant NGO’s.

(13) Under Section 13 (Composition of Appeal Board), considering the fundamentally legal nature of the functions of the Board, we suggest broadening the scope of sub-section (2) such that it reads:

"At least one of the members of the Appeal Board must be legally qualified".

Asylum Procedure
The requirements relating to the duties of the Refugee Receiving Officer will have an important impact on the quality of the initial application submitted by an asylum-seeker. By avoiding misunderstandings at this stage of the procedure, abuses and inadvertent mistakes may be avoided, and a reduction in the incidences of costly appeals effected. Accordingly we recommend the following additions/amendments to section 21.

(14) It is important that the applicant be briefed on the conditions and modalities of the asylum procedure by the Refugee Receiving Officer so that they become clear to him or her from the outset and any misunderstandings or abuses may be avoided. We therefore recommend the addition of a new sub-section (2) (d) reading as follows:

"must inform the applicant on conditions and modalities of the asylum procedure and his or her rights and responsibilities".

(15) The use of interpreters, accredited and hired by the government, is very important to avoid abuses and to ensure an accurate initial application. We recommend the addition of a new sub-section (2) (e) which reads:

"must ensure that any enquiry is conducted and any information is provided in a language that the applicant fully understands, through the provision of an accredited interpreter when requested or required".

Similarly Section 24, sub-section (2)(c) should be amended by the addition of the words,

"...through the provision of an accredited interpreter when requested or required."

(16) In view of the sensitivity of the information provided by asylum seekers and the risks for the applicant in case it fell into the wrong hands, the need to ensure confidentiality of asylum claims is critical and should be provided for in the draft. We therefore suggest the addition under section 21 a new sub-section (5) reading:

"The confidentiality of asylum applications and the information contained therein shall be ensured at all times".

Asylum seeker permit
It is not clear from the Bill whether the withdrawal of an asylum-seeker permit results in the dismissal of an asylum claim. This needs to be clarified in the Bill. If this is the case, the provisions of Section 6, sub-sections (a) and (d) would not be consistent with generally accepted principles of international refugee law.

(17) Section 22, sub-section (6)(a) is of extreme concern to the NCRA and potentially constitutes a serious breach of international refugee law and protection principles. Under these principles, failure to comply with the laws and regulations of the host country should be prosecuted accordingly. However, withdrawal of the asylum seeker permit from a person who may have contravened any conditions attached thereto, even if unintentionally, goes beyond prosecution and would amount to deportation and exposure to danger. We therefore strongly recommend

the deletion of sub-section (6)(a).

(18) The NCRA has similar concerns relating to Section 22, sub-section (6)(d) as raised above in regard to Section 22, sub-section (6)(a). We therefore recommend

the deletion of sub-section (6)(d).

(19) We recommend the addition of the word "finally" in Section 22, sub-section (6)(b) to ensure that only asylum-seekers who have exhausted the remedial mechanisms offered by the asylum procedure are affected by this provision. Accordingly, the sub-section be amended to read:

"the application for asylum has been finally found to be manifestly unfounded, abusive or fraudulent."

(20) We recommend the addition of the word "finally" in Section 22, sub-section (6)(c) to ensure that only asylum-seekers who have exhausted the remedial mechanisms offered by the asylum procedure are affected by this provision. Accordingly the sub-section be amended to read:

"the application for asylum has been finally rejected."

(21) Section 22, sub-section (7) makes the contravention of any condition on an asylum-seeker permit a serious offence and may lead to situations of overly harsh or undue punishment. Considering the potential range of conditions feasible and the possibility of an unintentional breach of these conditions, we strongly recommend this sub-section be amended to read:

"...or to comply, knowingly and with intention to defeat its purposes, with any condition set out in a permit issued in terms of this section...."

Asylum Procedure
The NCRA has a number of recommendations relating to sections 24, 25 and 26. We believe that there is substantial room for improvement in the asylum determination procedures as outlined in the current draft of the Bill. These sections currently contain overlapping and confusing line functions and responsibilities which would add unnecessary administrative burdens to the asylum determination body.

(22) We suggest amending Section 24, sub-section (1)(b) by deleting "his or her opinion" in order to clarify that the sole determination authority in South Africa is a duly appointed official of the South African government. We suggest the sub-section read:

"where necessary, may consult with and invite a UNHCR representative to furnish information on specified matters; and"

(23) Section 24, sub-section (3)(d), as drafted is unclear and may create confusion as to the division of labour between the Refugee Status Determination Officer and the Standing Committee. Whereas the latter has a power to monitor the decisions taken by the former, such power should not be stretched to the point that such decisions are taken by the Standing Committee. The monitoring functions are effectively exercised through the provision of advice on any question of law or fact which may be referred by the Refugee Status Determination Officer to the Standing Committee. However, the responsibility for first instance determinations should remain with the former. In order to avoid making the asylum procedure unnecessarily cumbersome, we strongly recommend amending Section 24, sub-section (3)(d) to read as follows:

"refer any question of law or fact arising from the application to the Standing Committee for advice".

(24) Section 25, sub-section (3)(c) confers upon the Standing Committee the power to make first instance decisions which function should rest solely with the Refugee Status Determination Officer. As discussed above, the rationale for this provision is unclear, but its effect is to blur the division of responsibilities between the two bodies and it could make the asylum procedure unmanageable. We therefore strongly recommend:

the deletion of Section 25, sub-section (3)(c).

(25) For purposes of clarity in the review procedure we suggest amending Section 25, sub-section (4) to read:

"When a decision made in terms of Section 24(3)(b) is set aside, the Standing Committee must refer the application back to a Refugee Status Determination Officer for consideration".

(26) Section 26, sub-section (1)(b) presupposes that the Standing Committee has the power to make first instance determinations. As discussed above, this provision not only blurs the distinct functions of the Refugee Status Determination Officer and the Standing Committee, but it also creates a new layer of decision-making which would make the asylum procedure unmanageable. According to the memorandum on the objectives of the Refugee Bill, 1998, the Standing Committee and the Appeal Board are two parallel bodies in charge of reviewing first instance determinations, within the framework of the accelerated procedure and the ordinary procedure respectively. If the Standing Committee were to make first instance decisions and the Appeal Board to review such decisions, the asylum procedure would become unmanageable. We therefore strongly recommend:

the deletion of Section 26, sub-section (1)(b).

Similarly, under Section 26, sub-section (3) the reference to the decision taken by the Standing Committee should be deleted, and this sub-section amended to read:

"The Appeal Board may, after hearing an appeal, confirm, set aside or substitute any decision taken by a Refugee Status Determination Officer in terms of Section 24(3)(b) or (c)".

(27) Section 26, sub-section (2) grants the Minister the power to appeal against a positive decision to recognize a refugee. It is not clear what problem this provision addresses. It may be intended to address cases where a decision to recognize a refugee raises serious concerns of national security or public order, or where that person has been wrongfully recognised. However, these concerns are already addressed under sections 28 and 36 respectively. Accordingly, this section seriously undermines the independence and impartiality of the status determination procedure and we very strongly recommend:

the deletion of Section 26, sub-section (2).

Rights and obligations of Refugees
(28) Section 27, sub-section (c), addresses the issue of conditions under which naturalization proceedings may be undertaken. This sub-section speaks to one important aspect of a refugee protection regime which is concerned with creating durable solutions for refugees. Unfortunately the current wording represents a significant departure from the wording of the Draft Bill published along with the White Paper. Further, the NCRA is of the opinion that this sub-section falls far short of the minimum requirements of Article 34 of the 1951 Convention which commits state parties to "as far as possible facilitate the assimilation and naturalization of refugees." The current wording requires that the Standing Committee certify that a refugee will remain stateless indefinitely before they may gain access to be immigration proceedings. This introduces the requirement of the arbitrary criteria of "statelessness" (which is not directly related to the loss by a person of the protection of his or her state). Additionally, we suggest that, given the long delays currently existing in the determination procedure, the period should commence from the date the asylum-seeker makes their initial application for asylum. Accordingly, we recommend that Section 27, sub-section (c) be amended to read:

" is entitled to apply for naturalisation in terms of the South African Citizenship Act, 1995, after 5 years residence from the date on which he or she made their initial application for asylum"

(29) The NCRA appreciates the recognition in various sections of the Bill of the special needs and circumstances that may be applicable to refugee children. However, bearing in mind the provisions of section 28, sub-section (1)(a) of the Bill of Rights, (which guarantees every child the right to ‘a name and nationality from birth’) and the lack of such an effective guarantee for South African born children of refugees, we suggest an additional sub-section be added to recognise a right of citizenship accruing to a South African born child of refugee parents. Such a provision be accompanied by a relevant amendment to the South African Citizenship Act (1995).

(30) Section 28, sub-section (1) raises serious concerns for the NCRA. The current drafting represents a serious departure from the language and intent of the 1951 UN Convention, which specifically circumscribes the scope for expulsion to grounds including "national security or public order". The current drafting also introduces ambiguous terms such as "public interest" and "undesirable inhabitant" which could lead to arbitrary or abusive expulsions. Accordingly, we strongly recommend a reversion to the language of the previous draft, which reads:

"No refugee shall be removed from the Republic save on grounds of national security or public order".

Restriction of Detention
(31) We recommend that section 29 be amended to specifically limit the manner and conditions under which a child may be detained under any provision of the Bill. The current draft of the Bill only allows for restrictions on the detention of a child in terms of an order made under section 23. Accordingly we recommend that Section 23, sub-section (2) be deleted and an additional sub-section be added to section 29. We further recommend an additional sub-section which would allow for a monitoring mechanism relating to detentions ordered under the act. Accordingly we suggest the following amendment to the section 29:

(1) No person may be detained in terms of this Act for a longer period than is reasonable and justifiable and any detention exceeding 30 days must be reviewed immediately by a judge of the High Court of the provincial division in whose area of jurisdiction the person is detained, designated by the Judge President of that division for the purpose and such detention must be reviewed in this manner after the expiry of every subsequent period of 30 days.
(2) The detention of a child must be used only as a measure of last resort and for the shortest appropriate period of time.
(3) The Minister shall submit to Parliament a report annually in writing regarding the number of persons detained in terms of this Act and length of detention.

Dependents of Refugees
(32) We note with serious concern that the text of Section 33 is substantively different from the provisions governing the status of dependants of refugee contained in Section 31 of the previous draft (page 20). The current drafting would constitute a serious breach of accepted principles of international refugee law. We therefore strongly recommend the deletion of the current text of section 33 and reversion to the text of the previous draft, which is very clear and consistent with international refugee law and the principle of family unit. This read as follows:

"(1) Where a dependent of a recognized refugee is within the Republic in accordance with an asylum seeker permit or residential permit issued to him or her in terms of this Act, and ceases to be a dependent by reason of his or her marriage, his or her attaining the age of 18 years or the cessation of his or her dependence upon the recognized refugee, as the case may be, he or she may be permitted to continue to remain within the Republic in accordance with the provisions of this Act". (2) Upon the death of a recognized refugee or upon his or her divorce, every person who, immediately before such death or divorce was within the Republic in terms of this Act as a dependent of such recognized refugee, may be permitted to continue to remain within the Republic in accordance with the provisions of this Act. (3) Nothing contained in this Act shall prevent a dependent of a recognized refugee or a person who has, in terms of sub-section (1) or (2), been permitted to continue to remain in the Republic, from applying for recognition as a refugee in accordance with the provisions of this Act".

Situation of Mass Influx
(33) It is important that the revocation of group status under section 35(1) only be undertaken in conformity with the provisions for cessation under section 5(1). For clarity, we recommend that this section be amended accordingly.

Withdrawal of Refugee Status
(34) Section 36(a) should be amended to include the requirement that the Standing Committee must inform a person, whose refugee status it intends to withdraw, of his or he right to make a submission with regard to this decision.

Offences and Penalties
(35) We are extremely concerned that the current drafting of section 37, relating to offences and penalties, constitutes a serious breach of international refugee law. The provisions for cessation and exclusion provided under the 1951 UN Convention and the 1969 OAU Convention are exhaustive. However, this provision significantly widens the scope for exclusion/cessation by allowing for the deportation of a refugee for the contravention of any provision of the Bill. The commission of an offence under this Bill, or any other piece of South African legislation, should result in appropriate prosecutorial proceedings [such as those contemplated under section 22, sub-section (7)]. We therefore strongly recommend the deletion of the current text of the final provision of Section 37, which could have far-reaching protection implications, and reversion to the text which appeared in the draft published in the Gazette under Section 36. This provision reads as follows:

"is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding five years, or to both a fine and such imprisonment".

Regulations
(36) The NCRA has expressed a number of concerns relating to the powers of the Minister, granted under the Bill. We believe that wide discretionary powers granted to the Minister under the Bill, including the wide powers to make regulations, seriously undermine the independent status of the refugee determination authority. We suggest that it would be more appropriate for regulations to be promulgated through a process involving the independent statutory authorities created by the Bill. We therefore recommend section 38 be amended to this affect.

End Recommendations

National Consortium on Refugee Affairs
Chair: South African Human Rights Commission
Secretariat: Lawyers for Human Rights
23 October 1998

Prepared by James Schneider on behalf of, and in consultation with the member organisations of, the National Consortium on Refugee Affairs