Archive from June, 2018

Former Angolan refugees face uncertain future

4 June 2018 – Groundup
They were expecting permanent residence, but they have been offered four years in South Africa instead
The Scalabrini Centre is concerned by a Home Affairs decision to issue a non-renewable Angolan Special Permit (ASP) that expires in 2021. While welcoming the permit because it allows former Angolan refugees to work and study in South Africa, Scalabrini — which advocates for immigrant rights — has been negotiating permanent residence for the former refugees.
The organisation is now worried that that the non-renewable aspect of the permit will mean that the path to permanent residence has been blocked. Holders of the new permit cannot apply for residency in South Africa and the conditions of the permit cannot be changed.
“We are relieved by [Home Affairs’s] decision to document this small, integrated and economically active group. However the fact that the ASPs expire in 2021 creates great uncertainty regarding the future of this group of people, who have integrated economically and socially over the last 20 years in South Africa,” said a Scalabrini statement last week.
In October 2009, the United Nation High Commissioner for Refugees (UNHCR) proposed to end refugee status for Angolans who fled the civil war which ended in 2002. Following that recommendation, Home Affairs offered a special dispensation to Angolan nationals to regularise their stay in South Africa over a 14-week period which ended on 31 August 2013. Angolan refugees were then offered voluntary repatriation, but many, sometimes because they’d been living in the republic for decades and had no life in Angola to go back to, turned down this offer.
Scalabrini said that last year it handed 160 lever-arch files to Home affairs documenting the lives of 1,757 Angolan applicants. “In July 2017, the Minister of Home Affairs issued a decision to grant permanent residency to the majority of Angolan applicants. Home Affairs is now beginning to issue these applicants with ASPs,” said Scalabrini. The implication is that people who were expecting permanent residence will now not be eligible.
We asked spokesperson for Home Affairs, Mayihlome Tshwete, about Scalabrini’s claim that Angolans were expecting to be able to become permanent residents. He responded, “The Department considered various options relevant to this category of Angolans who declined voluntary repatriation and instead opted to remain in South Africa and were issued with Angolan Cessation Permits for two years. The Department approved in May 2017 that a Special Dispensation for Angolans with Cessation permits be implemented, similar to the ones granted to Zimbabweans and Basothos.”
Tshwete confirmed that the permits would be issued for four years and that they would not lead to permanent residence.
Manuel (not his real name) told GroundUp, “It is disheartening that the Minister of Home Affairs decided to issue us non-renewable temporary visas after all the trouble we went through to provide Home Affairs with proper documentation stating our reasons for wanting to remain permanently in the country. We are uncertain about the future and this is a difficult time for me as the head of the family. I have been here for 23 years and was only 15 when I left Angola after I lost my parents in the liberation struggle.”
“I fled Angola through Namibia after the military came to my school, and forced me and the other young boys to join the war. When I arrived here in South Africa I applied for asylum. After six months I got refugee status. In 2010 I set up a translation and transportation business. It would be difficult to uproot it now. My three children were born here; they can’t even speak my language. Going back doesn’t make any sense because I don’t have anything or home to go back to,” said Manuel.
“The issuing of Angolan Special permit is not good news for us. We are a vulnerable group facing persecution from our government because we did not take the 2013 voluntary repatriation offer. Our government will torture us for not cooperating with it to form an alliance. We will also be placed in camps after repatriation. Those who are integrated in the community are traced using the information obtained from the embassy that reviews the reasons for seeking asylum. It’s not safe to go back.”
The Angolan embassy did not respond to GroundUp’s request for comment.

Victory in Constitutional Court for asylum seekers

Daily Maverick – 31 May 2018
In an important victory for the rights of asylum seekers, the Constitutional Court has found that their temporary permits must automatically be extended while their case is under judicial review.
South Africa is home to at least 400,000 asylum seekers and refugees. An asylum seeker is someone who claims, in an application to the Department of Home Affairs, to have fled from a place where they have been persecuted or where they are in danger. A refugee is someone who has been granted asylum either by government or a court.
Before asylum seekers get official refugee status they are granted a temporary permit which allows them to remain in the country until their application has been dealt with. Official refugee status can often take time and many applications are rejected.
When an application is rejected, an asylum seeker can go through an internal appeal, up to the Refugee Appeals Board. If that too fails, he or she can take the matter on judicial review in the High Court. During this time, the Refugees Act allows a Refugee Reception Officer to extend the asylum seeker’s temporary permit from time to time.
The question that arises is: up to what point is such an extension allowed? And is the extension automatic or does a Refugee Reception Officer have the discretion to refuse an extension?
The case before the Constitutional Court was brought by several asylum seekers from Cape Town whose applications for official refugee status had been rejected. They were represented by the Legal Resources Centre. After exhausting internal appeals, they applied for an extension of their temporary permits pending judicial review. The extension was not granted.
The High Court found that a Refugee Reception Officer does have the discretion to extend a permit pending judicial review. However, the Court found that the extension is not automatic but at the discretion of the officer.
The Supreme Court of Appeal largely upheld the decision of the High Court.
Home Affairs appealed to the Constitutional Court to rule that a Refugee Reception Officer can only extend a permit until internal remedies in terms of the Act have been exhausted.
The asylum seekers cross-appealed and wanted the Constitutional Court to go further than the Appeal Court decision and find that an extension is not only permitted but also automatic.
The Constitutional Court explained that two legal issues had to be addressed:
Whether a Refugee Reception Officer has the power to extend a permit pending judicial review; and
If so, whether an extension is automatic or whether the Refugee Reception Officer must exercise discretion.
At issue was the interpretation of the word “outcome” in the Act. Home Affairs argued that this referred to “the final administrative outcome” in terms of the act.
The act provides for two layers of appeal if an application for official refugee status has been rejected: first, asylum seekers may approach the Standing Committee for Refugee Affairs, and if this fails they may approach the Refugee Appeals Board. According to this logic, once this outcome is reached no further extensions are permissible. For this reason, the outcome of a judicial review of the decision of the Appeals Board wouldn’t qualify as an “outcome” in terms of the act.
The court rejected this approach. Firstly, it emphasized that when courts interpret legislation they must do so in order to fulfil the key purpose of a piece of legislation.
And one of the key purposes behind refugee law, the court said, was to ensure that refugees are not returned to the circumstances from which they were seeking refuge. This means that “no one shall expel or return a refugee against his or her will, in any manner whatsoever, to a territory where he or she fears threats to life or freedom.”
Adopting the Home Affairs approach would mean that asylum seekers who have exhausted internal remedies in terms of the Act would be at risk of being deported, even if they were seeking refuge for valid reasons. It would be “cold-comfort” to argue that an asylum seeker would still have the option of approaching a court for interim protection: this could be unsuccessful for technical reasons, and anyway it would be expensive and impractical for an asylum seeker to institute legal proceedings once he or she had already been deported.
The Constitutional Court also emphasized that courts must prefer an interpretation of legislation that protects fundamental rights in terms of the Bill of Rights. If Home Affairs’s interpretation were adopted an asylum seeker’s rights to just administrative action, access to courts, life, human dignity, and freedom and security could be infringed.
For all these reasons, the court rejected Home Affairs’s interpretation and found that a Refugee Reception Officer does have the power to extend a permit, pending judicial review.
Here, the court found that the principle of “non-refoulement” — not sending a person back to a place where he or she would be in danger — would suggest that an extension must be automatic.
The court also said that if a Refugee Reception Officer did have discretion to refuse to extend a permit this would create a discrepancy in the Act. This is because the act enables the minister in certain prescribed circumstances to withdraw a permit but does not prescribe the circumstances under which a decision not to extend a permit may be made. Yet a refusal to extend a permit and the withdrawal of a permit have the same effect. The court found that it would not make sense that the Act gives more discretion to the Refugee Reception Officer than to the minister. So the court found that the only interpretation that would make sense is that an extension is automatic and the Refugee Reception Officer has no discretion at all.
The court declared — with a minority of judges dissenting — that a Refugee Reception Officer does have the power to extend a permit pending judicial review and that such an extension is automatic. The court awarded costs against Home Affairs.
The case will strengthen the situation of thousands of asylum seekers who are in a precarious position without official refugee status. It reduces the possibility of unjustified deportations and ensures that South Africa complies with its international obligations to protect refugees from persecution and threats to their life and safety.

Shame on you Home Affairs

30 May 2018 – Cape Argus

To Home Affairs, we say shame on you for causing a young boy such emotional and psychological anguish. Picture: David Ritchie/African News Agency
All 13-year-old George Maskini wanted was to go and play football after he was chosen to represent his school at an event in Thailand last November.
The South African-born Sunnyside Primary pupil is a minor, and his mom needed to apply for travel documentation for him.
That’s where the talented youngster first hit a wall. The Department of Home Affairs said he needed a passport. But his application was scuppered by the fact his parents were DRC nationals.
Determined to help realise his dream of playing overseas, the boy’s mother, Bampende, appealed to the department. Eventually, Home Affairs Deputy Minister Fatima Chohan stepped in, and his passport was fast-tracked.
On the day he was to depart he was stopped at the boarding gate because he needed a visa.
In December, the manager of SimSport Eagles Football Club offered him another opportunity to ¬travel overseas. George’s dreams were dashed again when officials declared lost and/or stolen the passport Chohan had given him.
The teen was subjected to a traumatic experience by a government department whose purpose is to serve South Africans. Home Affairs’ failure to assist this young boy is despicable. It speaks to the unbelievably poor service some public servants deliver.
Maskini’s story touched the hearts of Cape Argus readers and one lawyer, Romeo Tsusi, stepped in, offering to sue Home Affairs on the boy’s behalf, pro bono.
The Cape Argus’s reporting on the story also caught the attention of MPs, who summoned George’s mother to appear before the Home Affairs portfolio committee, who shook their heads in dismay on Tuesday, listening to the harrowing tale.
We admire the efforts of the young lawyer. This is what President Cyril Ramaphosa meant by “Thuma mina. Send me” – his rallying call during his first State of the Nation Address earlier this year.
To Home Affairs, we say shame on you for causing a young boy such emotional and psychological anguish. How many other people are ¬subjected to treatment like this?
The portfolio committee demanded an explanation of how Home Affairs scuppered this young boy’s dreams, and so do we.

Why don’t investors flock to our special zones?

27 May 2018, Sunday Independent
South Africa has spent 10 years setting up our special economic zones (SEZs) to attract investors, but now that the parks are ready, investors are not coming.
We need to urgently address why this is the case if we want to court investment to facilitate job creation, which is the president’s top priority. It is not good enough to have merely built the nests, now we need to attract the birds.
It was a wonderful idea for President Cyril Ramaphosa to appoint four special investment envoys to fan out across the globe in an investment drive to attract R1.2 trillion in investment over the next five years.
But if we don’t sort out the reasons for why investors are not finding our SEZs attractive, it may not produce the results the president is hoping for.
The government is gearing up for two major investment summits, the success of which is critical for our economy. We need to take a hard look at the fact that we have as many as 10 SEZs, and while there are investors, there are not enough.
There are hardly even enough investors to sustain four SEZs, which means economies of scale are not there.
So what exactly are these challenges? The primary issue is safety and security, without which we cannot expect to attract either investors or tourists, which are key to job creation.
The reality is that the murder rate in this country is the primary deterrent to investment, and potential investors are now even saying they would prefer to go to Kenya than South Africa, which is really a concern.
The number of Chinese tourists to South Africa peaked in 2013/14 at 150000, but has declined to 100000 since then owing to security concerns.
A Singapore business delegation was robbed as they travelled from the airport to the hotel. What type of message does that send? The media also needs to be more responsible and send out positive messages as opposed to a constant stream of negativity, which feeds into fear-mongering overseas.
The second major issue deterring investment is the lack of incentive policy written into law. Any investor will tell you that incentives are everything, but in South Africa there is no law approved by Parliament and the president that ensures profits to investors for the long term. In the South African Economic Zones Act, there is only one sentence devoted to SEZ policy.
It merely says that the minister may determine policy for SEZs, and when necessary can review policy.
This means that the policy can change at any time, which doesn’t instil much confidence in investors.
If we look at Egypt, contained in their investment law are three pages devoted to investment incentives.
There are incentives to do with significant discounts off investment costs for labour-intensive projects, small and medium enterprises, projects on renewable energy, tourism, electricity generation, car manufacturing, agricultural products and engineering, to name but a few.
Egypt has been particularly effective at speeding up investment and industrialisation in their country.
At the end of the day, investors come to make profits and an incentive policy is key to attract them.
The third major area of concern on the part of investors is government services. The Department of Trade and Industry has already made some headway in creating a framework for a one-stop shop like China has, which is a single place where investors can go and deal with Home Affairs, Immigration, police, tax authority, customs, and electricity. But the procedure in dealing with all the government services currently takes far too long.
The Chinese embassy is trying to assist by sending 48 South African government officials to China this year for a workshop on how to make a one-stop shop operational and efficient.
When Asians look at where to invest, they see South Africa with a population of 55 million and a growth rate of 1%. Compare that to the Philippines, with a population of 103 million and a growth rate of 6.9%, and Indonesia, with a population of 261 million and a growth rate of 5%.
Asian countries are also within the same time zone, and not more than about a three-hour flight from each other. How will South Africa make itself attractive to Asian investors?
Being on the southernmost tip of Africa, we are in the best location straddling two oceans. We have a plethora of mineral resources, agricultural land and human resources. Now we just have to work out what real incentives we can offer.
It does not need to be a race to the bottom where we lower our minimum wage, but perhaps we can be creative with our incentives. We could, at a minimum, make the red tape in government services less cumbersome.