Human Rights Watch
Submission to the Parliamentary Portfolio Committee on the Refugee Bill
13 October 1998

Introduction
Human Rights Watch welcomes the completion of the draft White Paper on Refugee Policy and the introduction of the Refugee Bill to parliament as an important step in bringing South Africa’s refugee protection system into line with its international obligations. The provisions of the bill represent a substantial improvement on existing refugee determination procedures, and address many of the concerns about these procedures described in our report published in March 1998, "Prohibited Persons": Abuse of Undocumented Migrants, Asylum Seekers and Refugees in South Africa. (Each member of the Parliamentary Portfolio Committee should have received a copy of this report; if not, further copies are available by contacting Bronwen Manby in our London office. Human Rights Watch also made submissions to the Green Paper and White Paper drafting committees and these can be made available.)

Nevertheless, we retain some concerns about the refugee bill as it currently stands, and hope the portfolio committee will exercise its oversight function by amending the bill to address these outstanding issues. They are set out below, following the order of the section numbers of the bill itself.

Section 4: Exclusion from Refugee Status
The grounds for exclusion from recognition of refugee status in Section 4(1) are generally consistent with the exclusion clauses of the 1951 U.N. Refugee Convention. However, subsections (b) and (d) are not in full compliance with international law, and Human Rights Watch believes they should be amended to ensure that exclusion is only on the grounds specified in the Refugee Convention.

Section 4(1)(b), providing that a person does not qualify for refugee status if he or she has committed a non-political crime punishable by imprisonment if committed in South Africa is more restrictive than the U.N. convention’s equivalent provision which refers to a serious non-political crime. Many crimes punishable by imprisonment in South Africa are in fact not very serious and would not justify refusal of refugee status, and Human Rights Watch recommends that this section be amended.

Section 4(1)(d), denying refugee status to a person who "enjoys the protection of any other country in which he or she has taken residence" is not a ground for exclusion under international law, although it may determine where refugee status determination takes place. In particular, asylum seekers must never be returned to countries where there are inadequate refugee status determination procedures, where there is inadequate protection against refoulement (return to their own country), or which are not safe.

Human Rights Watch also suggests that Section 4(1)(a) be extended to read: "he or she has committed a crime against peace, a war crime or a crime against humanity, as defined in any international instrument dealing with any such crimes, customary international law, and relevant jurisprudence," to take account of developments in the law in this regard.

Section 4(2) should also apply to section 28, relating to removal of refugees from South Africa.

Sections 9 to 20: Composition and Powers of the Standing Committee for Refugee Affairs and the Appeal Board
Section 9(2) of the bill states that the Standing Committee for Refugee Affairs must function without any bias and be independent. There is no equivalent statement for the Refugee Appeal Board, and one should be added. Human Rights Watch recommends that the bill should also state explicitly that both the Standing Committee and the Appeal Board shall operate free from political interference, as this is not necessarily synonymous with being independent.

The appointment and removal process for the members of the Standing Committee and the Appeal Board is exclusively in the hands of the minister. This stands in contrast to the procedures followed by other independent statutory bodies such as the Commission for Conciliation, Mediation and Arbitration (CCMA) and may jeopardize the independence of the Standing Committee and Appeal Board. Human Rights Watch urges the portfolio committee to insist on an independent appointment procedure similar to that followed for the CCMA, and suggests that it may be appropriate for the candidates to be nominated by the Judicial Service Commission. The process of selection and appointment should be transparent and provide opportunities for consultation with interested parties such as the South African Human Rights Commission, the office of the U.N. High Commissioner for Refugees (UNHCR) and relevant NGOs.

Sections 10(2) and 12(1)(b) state that members of the Standing Committee and the Appeal Board shall be appointed with due regard to their experience, qualifications and expertise. Human Rights Watch recommends that the refugee bill should explicitly state that members of the Standing Committee and the Appeal Board shall have before appointment, or be required to acquire before taking up employment, a familiarity with the legal and empirical realities of refugee and human rights protection.

Section 22: Asylum seeker permit
Human Rights Watch welcomes the provision in Section 22 of the bill that asylum seekers be provided with permits: lack of proper identification documents is one of the greatest problems faced by asylum seekers under the current system. Asylum seekers’ permits should, however, be given to all asylum seekers at the time of submitting an asylum application until such time as a final decision on the asylum case has been given when they can be withdrawn. This principle should be reflected in the wording of Section 22. In particular, Section 22(3) should make it clear that a permit is issued until such time as a final decision is reached on the asylum case. Similarly, Section 22(5) should stipulate that an asylum seeker permit can only be withdrawn when a final decision on the asylum case has been reached. Such a decision could either be a recognition of refugee status, in which case a refugee identity document will be provided, or a rejection of refugee status. In the case of a rejection, however, an asylum seeker permit should not be withdrawn until the asylum seeker has been able to exercise his or her full rights to appeal the decision.

Human Rights Watch believes that an asylum seeker permit should not be withdrawn until there has been a full and fair consideration of the asylum case. Human Rights Watch does not believe that the use of fast-track procedures for so-called manifestly unfounded cases provides asylum seekers with a full and fair consideration of their asylum application. We do not, therefore, believe that an asylum seeker permit should be withdrawn if an application is found as a preliminary matter to be "manifestly unfounded" (Section 22(6)(b)).

It is not clear from the wording of the bill whether or not the withdrawal of an asylum seeker permit in itself results in the dismissal of an asylum application. The consequences of a withdrawal of an asylum seeker permit should be clearly explained in the bill and such withdrawals should not interfere with or obstruct the refugee determination procedure. In particular, the grounds in Section 22(6)(a) and 22(6)(d) should not result in a dismissal of the asylum application.

The conditions under which asylum seeker permits may be issued, referred to in sections 22(1), 22(3), 22(6)(a) and 22(7), are left to the discretion of the Standing Committee in terms of section 11(h). Human Rights Watch suggests that these conditions should be contained in the bill itself, or at minimum should be issued as regulations, in order to avoid possible abuse. Such conditions should not circumvent the basic principle outlined above that an asylum seeker be provided with a permit at the time he or she submits an application and until such time as a final decision has been reached on the asylum claim.

Sections 22(6) and 24(3)(b): "Manifestly unfounded, abusive or fraudulent" applications
The current version of the bill allows for the dismissal of asylum applications on the grounds that they are "manifestly unfounded, abusive or fraudulent". However, the bill does not specify which procedures will be followed for such determinations and what criteria will be used to reach such a determination. The power to deny applications based on the ground of them being "manifestly unfounded" is a very broad one, and needs to be carefully circumscribed in order to prevent abuse. In the view of Human Rights Watch, many western countries have expanded the use of the "manifestly unfounded" category to such an extent that they have significantly undermined the right to asylum, and Human Rights Watch questions the necessity for such fast-track procedures in a well-functioning refugee determination framework.

Human Rights Watch urges that the "manifestly unfounded" procedures be strictly limited and circumscribed to avoid the development of a similar situation in South Africa. An asylum application should only be considered "manifestly unfounded" after a full and fair consideration of the case. The criteria used to make such determinations, and the procedures to be followed, should be carefully detailed in the bill. An automatic right to appeal and mandatory review prior to deportation should exist for such decisions.

Sections 23 and 29: Detention of asylum seekers
In the view of Human Rights Watch, and UNHCR, asylum seekers should as a general rule not be detained. Although most asylum seekers are not detained in South Africa, Human Rights Watch did interview some persons in detention at rural police stations who claimed to be asylum seekers during the research for its report "Prohibited Persons".

Section 23 of the bill allows for the detention of asylum seekers whose asylum seeker permit is withdrawn in terms of Section 22(6). Human Rights Watch does not, however, believe that the detention of an asylum seeker on the grounds stipulated in Section 22(6) should result in the withdrawal of an asylum seeker permit. In other words, even asylum seekers in detention should be allowed identity papers. Furthermore, as indicated earlier, declaring an application to be "manifestly unfounded" is not, in the view of Human Rights Watch, a sufficient ground for detention (Section 22(6)(b)). All asylum seekers should be allowed a full and fair hearing of their asylum application and should not be detained for the purposes of determining the merits of their case. In terms of Section 22(6)(a) and Section 23, an asylum seeker can be detained for contravention of the conditions endorsed on the asylum seeker permit. Again, Human Rights Watch emphasizes that the conditions of the asylum seeker permit should be clearly defined in the bill or its accompanying regulations to avoid possible abuse and to avoid the detention of asylum seekers.

Section 29 further requires that the detention of an asylum seeker be reviewed after thirty days. Human Rights Watch believes that administrative detention orders allowing for the detention of a person for thirty days are inconsistent with international law and the South African constitution: in any event, as documented in our report "Prohibited Persons", the current review system for detention does not work. Asylum-seekers, who have not been convicted or even accused of any crime, should at a minimum be granted the protections of Article 35 of the constitution, which requires that any arrested person be brought before a court as soon as possible, and not latter than forty-eight hours after arrest. Any extension of detention should be judicially approved and supervised. Detention should be subject to periodic review and should be subject to a maximum time limit. Non-custodial alternatives should be sought, and detention should only be pursued as a solution of last resort for adults as well as children. Children should be detained only in the most exceptional circumstances and for the shortest possible period of time. Under no circumstances should asylum seekers be detained with criminal suspects, convicts, or those awaiting trial on criminal charges, unless they themselves are criminally accused or convicted. Detention conditions should be non-punitive and in line with international and constitutional standards. The current provisions of the bill, leaving the place, length and manner of the detention to the discretion of the minister, are unacceptable in the absence of clearly defined norms.

Section 25-26: Reviews and Appeals
Human Rights Watch believes that the bill could be significantly improved by providing a more detailed description of the procedures to be followed for refugee determination and appeal. Specifically, the bill does not explicitly provide for a right of appearance by the applicant before the Standing Committee or the Appeals Board when the applicant’s case is considered (although these bodies have the discretion to request the applicant to appear, and in the case of the Appeal Board it is also stated that the board must allow legal representation). Human Rights Watch believes that the asylum seeker should have the right to present his or her case in person or through a legal representative to both these bodies.

Section 26(2) provides that the minister may lodge an appeal with the Appeal Board against a decision to grant asylum made by a Refugee Status Determination Officer or the Standing Committee. Human Rights Watch believes that this provision is not justified under international law and should be deleted. Section 26(3) should be amended accordingly, to ensure that the Appeal Board can only grant refugee status previously refused, and not set aside refugee status that has been granted.

Sections 27 to 34: Rights and Obligations of Refugees
The White Paper gave significantly more attention to the rights of refugees than the bill, and, while welcoming the provisions that are included, Human Rights Watch believes that the bill should be amended to reflect the greater emphasis on rights in the White Paper. The bill should specify the rights of asylum seekers to be provided with relevant information at the time they seek asylum; to legal representation or legal aid, or to be referred to relevant NGOs for assistance in the completion of their application; and to state-provided, independent interpretation and translation facilities at all stages of the status determination process, or to use interpreters of their choice. The assistance of suitably qualified persons can remedy many problems and delays in the determination process.

The draft bill circulated with the White Paper allowed refugees to apply for naturalization after five years. Section 27(c) of the current bill only grants refugees the right to apply for an immigration permit in terms of the Aliens Control Act after five years from the date on which he or she was granted asylum, and then only if the Standing Committee certifies that he or she will remain stateless indefinitely. This provision, in particular the requirement for separate inquiry and not an automatic process, is against the commitment undertaken by parties to the U.N. Refugee Convention to "as far as possible facilitate the assimilation and naturalization of refugees" (article 34). Human Rights Watch recommends that the provisions of the first draft be restored, and that the South African Citizenship Act (1995) be amended to recognize a five year residence period as an asylum seeker and/or refugee as one of the permissible grounds for obtaining naturalization. Because of the long delays currently existing in the refugee determination process, the period should commence from the date the asylum seeker first establishes residence in South Africa. If the time schedules proposed by the White Paper—six months for ordinary refugee determinations—are adhered to, this problem will be minimized, but the backlog may take some time to clear.

The bill also has another problem in this regard which should be corrected. The bill provides that a person ceases to qualify for refugee status if the conditions in that person’s home country change so that the home country becomes safe enough to allow for return (Section 5(1)(e)). This could create a situation where a decision is made to withdraw refugee status of a refugee who has lived in South Africa for over five years, and because refugee status has been withdrawn, the person would not longer be eligible to apply for an immigration permit or naturalization. Section 2(5) of the White Paper regarding cessation of refugee status recommended, however, that "where certain refugees have developed strong family, social and economic links with South Africa to the point of regarding it as their new home country, the government shall give favorable consideration to any application for naturalization which may be submitted by such refugees". It is the view of Human Rights Watch that such a provision should be made explicit in the bill.

Section 28(1) of the bill provides for removal of refugees from the Republic on grounds of national security or if the refugee is "in the public interest" declared by the minister an "undesirable inhabitant of the Republic." Although section 28(2) states that this decision must be made with regard to the constitution and international law, Human Rights Watch emphasizes that removal for national security and public interest purposes must be strictly construed, and recommends that the grounds for removal under this section be made more specific. In particular, a threat to "national" security should mean a threat to the very existence of the nation, and not merely an administrative, political or logistical burden to the country or the locality where a port of arrival is situated. Nor may states invoke this rationale to justify the denial of asylum or detention and removal of refugees simply on the basis of their political opinion or national or ethnic origin. The power to remove refugees on the grounds of public order should not be used to limit the rights of refugees to exercise their internationally recognized rights to freedom of assembly, association and speech. Expulsion is a very serious measure which should only be applied when the threat to national security and the public interest is of the greatest magnitude.

As stated above, Human Rights Watch does not believe that the provisions of section 29 relating to detention are compatible with international law, and should be amended.

The principle of family unity, endorsed in the Final Act of the 1951 U.N. Refugee Convention, is somewhat recognized in section 33 of the bill, which provides that an asylum seeker must assist dependants to apply for asylum at the same time as he or she applies. The bill does not, however, specifically grant dependants of refugees the right to refugee status. Human Rights Watch urges the South African government to recognize the right of dependants of a refugee to refugee status even when they have not accompanied the head of household. Thus, the children and spouse of a recognized refugee should be allowed to join the head of household, even when they are currently living in another country. Human Rights Watch proposes that the bill specifically recognize the right of dependants of refugees to refugee status and the principle of family unity.

Section 35: Accelerated reception of, and accommodation of asylum seekers in event of mass influx
In the case of a mass influx, refugees must be treated in accordance with international human rights and refugee protection standards. These standards should be clearly defined in the bill or its accompanying regulations. In addition, all efforts should be made to ensure that the human rights and humanitarian needs of refugees are met. To the extent possible, the refugee determination procedures of the bill should be adhered to. When a declaration of group refugee status is made by the minister in terms of Section 35(1) of the bill, all persons so declared to be refugees should still be issued with identity documents. The power of the minister to revoke such a grant of group refugee status by notice in the Gazette, as contemplated in Section 35(1) of the bill, should be qualified. In order to ensure compliance with the 1951 U.N. Refugee Convention, the minister should only have the power to revoke such declarations on the basis of one of the grounds for cessation contained in section 5(1) of the bill. When group refugee status is revoked in terms of section 35(1), individual refugees should have the opportunity to individually apply for refugee status. Refugee camps in case of mass influx should not be closed or restricted access.

Section 36: Withdrawal of Refugee Status
Section 36(1)(a) should provide that the Standing Committee must also inform the refugee of his or her right to make a submission to the Standing Committee about its decision to withdraw refugee status.

Section 37: Offences and Penalties
Human Rights Watch believes that section 37, providing that a person who commits one of a series of offences under the Act automatically forfeits his or her refugee or asylum seeker status and is to be regarded as a prohibited person under the Aliens Control Act is not in conformity with international law. The draft bill circulated with the White Paper provided only for a fine or imprisonment in the event a person is convicted of such an offence, and Human Rights Watch recommends that this formulation be restored. Refugee status may only be forfeited on the basis of the exclusion and cessation provisions set out in sections 4 and 5, or if it is determined that recognition of refugee status has been erroneous, as set out in section 36.

Section 38: Regulations
Human Rights Watch is of the opinion that the discretionary powers granted to the minister under the bill are too wide, and that many of the issues left to the discretion of the minister or to subsidiary regulations should be clearly defined in the bill itself. Matters such as the minister’s power to appoint the members of the Standing Committee and Appeal Board without consultation (sections 10 and 12); to withdraw asylum seeker permits (section 22(6)); to order the removal of refugees on the grounds of national security or in the public interest (section 28); and the broad power to make regulations in terms of section 38 seriously jeopardize the independence of the refugee determination procedures. Many of the powers granted to the minister could be handled in a more independent way by the statutory bodies created by the bill, and Human Rights Watch recommends that the bill be amended to this effect.