The Government of South Africa is committed to the granting of asylum to refugees; to provide them protection; and to search for solutions in line with their obligations and responsibilities which it assumed under the International Law, as well as by incorporating a number of basic principles and standards in the Constitution.

The above paragraph is from the introduction to the Draft Refugee White Paper that was published by the Department of Home Affairs and launched on 18 June 1998 and that sets out the intentions and obligations regarding South Africa's refugee policy and legislation. Subsequent to the white paper, South Africa's Refugees Act of 1998 was published in the Government Gazette on 2 December 1998. In addition to its own policy document and legislation, the South African government has also ratified the 1951 UN Convention Relating to the Status of Refugees, its 1967 Protocol, as well as the 1969 OAU Convention Governing the Specific Aspects of Refugee Protection in Africa.

It is perhaps important to point out the difference between the provisions of the 1951 UN Convention and its 1967 Protocol on the one hand, and the 1969 OAU Convention on the other hand- in terms of the former, an asylum-seeker must demonstrate a direct and personal "well- founded fear of persecution" to be granted refugee status. In the case of the latter, refugee status includes "...those compelled to leave their country for reasons of external aggression, occupation, foreign domination or events seriously disturbing public order either in part or the whole of the country of origin."

The Green Paper on International Migration that was published in May 1997, argued that refugee protection is fundamentally a human rights issue (as opposed to a migration issue) and proposed four principles that should underpin refugee policy and legislation:

1. It must be temporary: refugee protection is not an alternative or backdoor to permanent immigration and as is recognised internationally, must always be regarded as temporary. In other words, refugees need to be protected for as long as they remain at risk and until they can return home safely.

2. It must have regard for rights: fundamentally, refugee protection is about international legal entitlements and that, therefore, must meet four basic international standards; namely,

• the right not to be returned to the risk of persecution (non-refoulement)

• security rights (including protection from physical attack and assistance to meet basic human needs)

• basic dignity rights (including protection against discrimination, rights to family unity, freedom of movement and association and freedom of religion)

• self-sufficiency rights (including the right to work and education)

3. It most be solution-oriented: although refugees need to be protected, the focus should be on preparing them for their return home if and when conditions allow. It proposes, among other things that

• the social structures of refugee communities be kept intact

• refugees should be able to develop skills helpful during their stay in South Africa and on their return home

• contact be maintained between refugee communities and their counterparts back home

4. It must be collective: the green paper also calls for collectivised protection or burden-sharing in the SADC region, based on the argument that currently, when refugees arrive in an asylum state, that state alone is responsible for them and that often, the fiscal and physical burden may lead to inadequate protection.

With the exception of the need for collectivized protection, the principles proposed in the green paper were incorporated into both the Draft Refugee White Paper and the Refugees Act of 1998. Furthermore, the Refugees Act sets out the structures and mechanisms to govern status determination procedures. While perhaps not entirely perfect, the policy and legislative framework put in place by the white paper and the Refugees Act certainly represents a significant departure from the past and is to be welcomed as probably one of the most progressive pieces of legislation when compared to the legislation of other countries.

But what are the numbers of people we are talking about? Some comparative examples:

Main countries of asylum: Iran - 1,046; Pakistan - 960,000; Germany - 876,000; Tanzania - 602,000; United States - 420,000; United Kingdom - 289,000; Uganda - 250,000; South Africa - 132,000

New Asylum claims (2004): France - 58,500; UK - 40,200; Germany - 35,600; South Africa - 32,600; United States - 27,900; Canada-25, 800

Pending applications US - 263,000; SA - 115,200; Germany - 86,200; Austria - 38,000 SA's backlog increased from 84,000 at the beginning 2004 to 115,200 at the end of 2004 (total increase of 31,200)

Top 10 refugee hosting countries in SADC end 2004 (excluding asylum seekers)

Given these perceptions, it follows that many South Africans hold very negative views about foreigners- views which are not just reflected in unsubstantiated statements about the negative impact they have on South African society, but are also manifested in violence, even against those who are in South Africa legally, including refugees and asylum- seekers. At the core of the conflict, therefore, is competition for scarce resources and the perception that non-nationals pose a significant threat to the availability of, and access that nationals may have to already limited opportunities and resources.

There is merit in the argument that in terms of jobs, education, health, welfare and other opportunities and social services. South Africans should not be disadvantaged because preference is given to migrants, immigrants, refugees and asylum-seekers. The conflict emerges however, when non-citizens are scapegoated and held responsible for the hardships faced by poor and disadvantaged South Africans. It is this attitude- the need to blame someone or some group without looking at and dealing with the causes of our problems- that leads to the kind of violent action against persons often described as "aliens".

We are thus confronted with a very particular dilemma- at a policy and legislative level, our commitments and obligations towards refugees and asylum-seekers are clearly outlined. In reality, however, it is at odds with the experiences of significant numbers of asylum seekers and refugees.

How then do we begin to address this dichotomy between policy and legislation on the one hand, and the realities of being an asylum seeker or refugee in South Africa?

• The first and most obvious route to follow is to grant refugees themselves an opportunity to participate in the shaping of mechanisms and systems that will ensure their protection, particularly in the areas of accommodation, food provision and employment. This implies that government officials who are responsible for the implementation of South Africa's Refugees Act, must actively canvass the opinions and perhaps even the expertise of South Africa's refugee communities: This also goes together with the development of strategies to ensure that NGO's that are currently involved in providing these services, are drawn in and consulted.

• There is a dire need for the much more pro-active monitoring of individuals and agencies involved in the enforcement of immigration law, to ensure that the current abuse and maltreatment of refugees and asylum-seekers comes to an end. The Human Rights Commission has initiated some of this work, but there are perhaps other institutions and NGO's that can also be drawn more closely into this type of activity.

• Opportunities, in the form of sports and cultural events, and perhaps even informal seminars and workshops, need to created for South African citizens and refugees to interact with, and to begin to develop an appreciation of each other. This can be combined with a broader strategy to engage political and civic leaders to develop and communicate a positive discourse and image of refugees and asylum-seekers, and migrants more generally.

• Asylum seekers and refugees bring with them, skills and knowledge that can be of benefit to themselves and of South African citizens. Opportunities need to be created where such skills and knowledge can be most usefully applied.

• At a regional level, it makes sense to work towards the establishment of regional networks of refugee communities and NGO's active in the field, as well as governments in the region. This can be part of a movement towards the harmonisation of refugee policies across the region and the development of a system of collectivised protection or burden-sharing.