United Nations High Commissioner for Refugess (UNHCR)

DRAFT REFUGEE BILL, 1998, VERSION REVIEWED BY THE STATE LAW ADVISORS

SUMMARY OF ISSUES OF CONCERN TO UNHCR
UNHCR appreciates the editorial and substantial improvements introduced in the draft Bill by the State Law Advisors, which have taken into account some of the comments made by the Office on the previous draft.

However, there still remain a number of areas of concern where the draft continues to fall short of long-established principles of international refugee law and protection. We hope that the Parliamentary Portfolio Committee on Home Affairs will review such areas and amend them to ensure broad consistency with South Africa’s obligations under the 1951 UN Convention Relating to the Status of Refugees and the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, to which South Africa has acceded.

The remaining areas of concern to UNHCR are summarised below:

Definitions
(a) Under Section 1 (Definitions), sub-section (i) (a), it is important for an asylum application to be considered abusive that it has been made with the sole purpose of evading criminal or civil proceedings or the consequences thereof, and does not arise from genuine fear of persecution. We therefore recommend to include the word "sole" before the word "purpose".

(b) Under Section 1, sub-section (xi), it is important for an application for asylum to be considered fraudulent that the false information provided has determined a different outcome of the application, and that such false information is not due to a state of trauma or shock of the asylum seeker arising from the circumstances in which he or she left the country of origin. We therefore recommend to reword this sub-section to read as follows: "fraudulent application for asylum means an application for asylum based, without reasonable cause, on facts, information, documents or representations which the applicant knows to be false and which are material to the outcome of the application".

(c) Under Section 3 (Refugee status), sub-section (a), the refugee definition drawn from the 1951 Convention is not complete and could engender confusion. We therefore recommend to use the language of the Convention in its entirety, and to add the words "owing to such fear, " after the words " and is unable or, "at the end of the third line of the sub-section.

(d) Under Section 3, among the various categories of persons who may recognized as refugees in South Africa, the draft has left out the category of those who may be recognized on a group basis in the event of a mass influx (such category appeared in the previous draft). We therefore recommend to add a new sub-section 3 (d) reading as follows: "He or she is a member of a group or category of persons declared to be refugees in terms of Section 35 (1)".

Exclusion from refugee status
(e) Under Section 4 (Exclusion from Refugee Status), sub-section (1) falls short of the standard of proof required by the 1951 Convention to exclude a person from the benefit of refugee status. Considering the extreme sanction constituted by the application of exclusion clauses, we recommend to use the language of the Convention and to reword this sub-section to read: "A person does not qualify for refugee status for the purposes of this Act if there are serious reasons to consider that he or she".

(f) Under Section 4, sub-section (1) (b), the draft unduly broadens the scope for the application of the exclusion clause to include any crime of a non-political nature which would be punishable by imprisonment in South Africa. This sub-section, as it stands now, constitutes a serious breach of international refugee law, as the scope for application of exclusion clauses has been mandatorily defined by the 1951 Convention and cannot be expanded by states, in view of the potentially fatal consequences of exclusion. We therefore strongly recommend to use the language of the Convention and to rephrase this sub-section to read: "has committed a serious non-political crime outside the Republic prior to his or her admission into the Republic as a refugee".

Standing Committee for Refugee Affairs
(g) Under Section 10 (Composition of the Standing Committee), we believe that, considering that the Standing Committee must decide on any matter of law referred to it by the Refugee Status Determination Officer, at least one member should be legally qualified. We therefore suggest to introduce a new sub-section (3) reading as follows: "At least one of the members of the Standing Committee must be legally qualified".

(h) Under Section 11 (Powers and duties of the Standing Committee), sub-section (e) has left out from the power to review asylum applications determined to be manifestly unfounded, abusive or fraudulent the latter two categories. To avoid engendering confusion, we recommend to reword this sub-section to read: "must review decisions by Refugee Status Determination Officers that an application for asylum is manifestly unfounded abusive or fraudulent".

(i) Under Section 11, sub-section (f), one should remember that, according to the memorandum on the objectives of the Refugee Bill, 1998, the Standing Committee provides guidance to the Refugee Status Determination Officers in terms of fact-finding and credibility assessment. The scope of this sub-section should be broadened accordingly. We therefore recommend to reword it to read: "must decide any matter of law or fact referred to it by a Refugee Status Determination Officer". Similarly, under Section 25 (Review by Standing Committee), sub-section 3 (a) should be rephrased to read "decide on a question of law or fact referred to it in terms of section 24 (3) (d)".

Refugee Appeal Board
(j) Under Section 12 (Establishment of Refugee Appeal Board), the draft does not guarantee the independence of this body, which is an essential feature of any effective appellate authority. Moreover, with this omission the draft falls short of the parameter of independence which it has guaranteed in respect of the Standing Committee. We therefore strongly recommend to add a new sub-section 2 reading as follows: "The Appeal Board must function without any bias and must be independent".

(k) Under Section 13 (Composition of Appeal Board), considering the fundamentally legal nature of the functions of the Board, we suggest to broaden the scope of sub-section (2) to read "At least one of the members of the Appeal Board must be legally qualified".

Application for asylum
(l) Under Section 21 (Application for asylum), it is very 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".

(m) Under Section 21, considering that the use of interpreters hired by the government is very important to avoid the current abuses, we recommend the addition of a new sub-section (2) (e) stipulating as follows: "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 interpreter when requested or required".

(n) Under Section 21, new sub-section (2) (f), current sub-section (2) (d), it is important to clearly stipulate that the Refugee Receiving Officer must receive any additional documentation which the applicant may wish to submit. We therefore suggest to reword the text of this sub-section to read: "must submit any application received from him or her, together with any additional documentation which he or she may wish to submit, to a Refugee Status Determination Officer".

(o) 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 to add under Section 21 a new sub-section (5) stipulating the following: "The confidentiality of asylum applications and the information contained therein shall be ensured at all times".

Asylum seeker permit
(p) Under Section (22) (Asylum seeker permit), sub-section (6) (a) is in contradiction with sub-section (7) and at variance with international refugee law and protection principles. According to the latter a refugee who does not 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 unintentionally, goes beyond prosecution and would amount to deportation and exposure to danger. We therefore strongly recommend to delete sub-section (6) (a).

(q) Under Section (22), sub-section (6) (c) we recommend to add the word "finally" before the word "rejected", to ensure that only asylum seekers who have exhausted the remedial mechanisms offered by the asylum procedure are affected by this provision.

(r) Under Section 22, sub-section (7) would expose to very harsh consequences any asylum seeker or refugee who may, even unintentionally or for reasons beyond his or her control , contravene any of the conditions attached to any permit issued to him or her. To avoid unduly punishing such persons, we strongly recommend to reword the second line of this sub-section 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
(s) Under Section 24 (Decision regarding application for asylum), in view of the importance of using interpreters hired by the government to avoid abuses, and considering that general information on the conditions and modalities of the asylum procedure has already been provided by the Refugee Receiving Officer, we recommend to reword sub-section (2) (c) to read as follows: "ensure that the hearing is conducted in a language that the applicant fully understands, through the provision of an interpreter when requested or required".

(t) Under Section 24, the scope of sub-section (3) (d) 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 to make first instance determinations remains with the former. In order to avoid making the asylum procedure unnecessarily cumbersome, we strongly recommend to rephrase 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".

(u) Under Section 24, sub-section (4) (b) seems to confer upon the Refugee Status Determination Officer the power to seek a review of a negative decision he or she has made from the Standing Committee. We cannot comprehend the rationale for this provision, which only creates confusion where there is a need for a clear distinction of functions and responsibilities. We therefore strongly recommend to delete sub-section (4) (b) and to repharse sub-section (4) to read: "If an application is rejected in terms of sub-section (3) (b) , written reasons must be furnished to the applicant within five working days after the date of the rejection".

(w) Under Section 25 (Review by Standing Committee), sub-section (3) (c) confers upon the Standing Committee the power to make first instance decisions which belongs to the Refugee Status Determination Officer. As discussed above, the rationale for this provision is unclear, but it is obvious that it blurs the division of responsibilities between the two bodies and could make the asylum procedure unmanageable. We therefore strongly recommend to delete sub-section (3) (c).

(x) Under Section 25, for purposes of clarity in the review procedure we suggest to add a new sub-section (4), which should read as follows: "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".

(y) Under Section 26 (Appeals to the Refugee Appeal Board), sub-section (1) (b) presupposes that the Standing Committee has the power to make first instance determinations. As discussed above, not only this provision blurs the distinction of functions between 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. One should remember that, 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. It is therefore impossible for the Standing Committee to make first instance decisions and for the Appeal Board to review such decisions, lest the asylum procedure become unmanageable. We therefore strongly recommend to delete sub-section (1) (b). Similarly, under sub-section (3) the reference to the decision taken by the Standing Committee should be deleted, and this sub-section should 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)".

(z) Section 26, sub-section (2) arouses the fear of political interference in the asylum procedure by giving to the Minister the power to appeal against a positive decision to recognize a refugee. It is really not clear what problem this provision addresses. It can be surmised that it covers cases where a decision to recognize a refugee raises concerns of national security or public order, or where that person should not have been recognized. However, these concerns are already addressed under sections 28 and 36 respectively. Accordingly, in order to preserve the independence and impartiality of the status determination procedure, we strongly recommend to delete sub-section (2).

Rights and obligations of refugees
(aa) Under Section 27 (Protection and general rights of refugees), sub-section (c), it should be noted that a refugee is not a stateless person, but a person who has lost the protection of his or her state. We therefore recommend to replace the word "stateless" with the word "refugee".

(bb) Under Section 27, sub-section (g), the wording is ambiguous whereas the constitutional right to basic health services and primary education is clear. We therefore suggest to revert to the formulation of the previous draft, reading as follows: "is entitled to basic health services and primary education".

(cc) Under Section 28 (Removal of refugees from the Republic), sub-section (1), we are seriously concerned that the stipulation of the previous draft has been altered to allow for removal from the republic on grounds of public interest. First, the notion of public interest is not defined, and this could lead to abuses and arbitrary use of power. Second, the 1951 Convention clearly circumscribes the scope for expulsion to the grounds of national security or public order. We therefore strongly recommend to delete the current text of sub-section (1) and revert to the text of the previous draft, which reads: "No refugee shall be removed from the Republic save on grounds of national security or public order".

(dd) We have noted with serious concern that the text of Section 33 (Dependants of refugee) is completely different from the provisions governing the status of dependants of refugee contained in Section 31 of the previous draft (page 20). The meaning and purpose of the new text cannot be understood under any provisions of international refugee law. We therefore strongly recommend to delete the current text of Section 33 and revert 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".

Offences and penalties
(ee) Under Section 37 (Offences and penalties) the final provision after sub-section (d) has been changed from the draft published in the Gazette, and it now provides that any offender shall be considered as a prohibited person under the Aliens Control Act, 1991. We are extremely concerned by this provision, as the fact that a refugee contravenes any of the provisions of the Act should not mean that he or she is any less in need of protection, and deportation as a prohibited person could expose him or her to danger. UNHCR advocates that refugees who have committed offences in South Africa should be prosecuted accordingly. In addition, this provision is in contradiction with Section 22, sub-section (7), whereby persons who fail to comply with any condition set out in the asylum seeker permit are liable on conviction to a fine or to imprisonment. We therefore strongly recommend to delete the current text of the final provision of Section 37, which could have far-reaching protection implications, and revert 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".

Refugee Reception Office
(l) Under Section 8 (Refugee Reception Office), sub-section (1), the system based on Refugee Receiving Officers and Refugee Status Determination Officers has been maintained despite a proposal to streamline it supported by the SAHRC and UNHCR. The rationale of such cumbersome procedure is unclear, but it is evident that it will be impossible for a procedure with so many layers to reduce the timeframe to six and three months for ordinary and accelerated procedures respectively.

(m) On the other hand, the SAHRC and UNHCR have proposed to merge the functions of Refugee Receiving Officers and Refugee Status Determination Officers into one new function of Refugee Officer. That officer would be charged with both preparing the files and conducting preliminary interviews in order to make a recommendation to one of several, proposed, Refugee Status Determination Committees, which would then take the final decision. Such Committees could be established at the regional level and sit at the Refugee Reception Office. Guarantees for a fair processing of asylum applications would be enhanced if the responsibility for first instance decisions was shifted from one official alone to a panel of at least two persons, acting on the basis of a recommendation made by the Refugee Officer. The procedure would thus be simplified and its time-frame could be realistically reduced. In addition, there could be savings in the amount of resources required for implementation. We hope that this proposal will be taken into account in the final draft of the Bill.