The State Of The South African Refugee Protection Regime: Part II - Politics And Policy

This brief - the second in a three-part series - explores reasons for the deterioration of refugee protection in South Africa.

Once applauded by UNHCR’s Antonio Guterres as ‘one of the most advanced and progressive systems of refugee protection in the world’, the South African refugee regime has deteriorated beyond recognition. Increasingly restrictive policies paired with chronic processing delays and endemic corruption and mismanagement in the Department of Home Affairs (DHA) have twisted the post-1994 system into one ridden with violations of both the South African Constitution and AU and UN conventions. The first brief in this series offered an account of the dire state of refugee protection in South Africa. This brief considers the possible reasons for the deterioration.

Between 1994 and now – not just negligence

From Part I, it is clear that the government has abandoned its progressive refugee regime with underpinning values of human dignity, equality and deservingness, a tolerance of otherness and a rejection of South Africa’s segregated history.

Can we look to the usual culprits of bureaucratic ineptitude and administrative incompetence? They are certainly present, but are not the only reasons for routine violation of human rights and international agreements. Three other accounts of South Africa’s deteriorated refugee regime need to be considered – the economic argument, the ‘immigration conflation’ and xenophobia. This brief investigates the government’s role in the regime’s deterioration, and what it has stood to gain.

The economic argument – a poor, overburdened state

Official statements and policy convey the view that the government is economically constrained – the deterioration of the refugee protection regime is a product of an overstretched mandate and (regardless of international and Constitutional obligations) the government’s need to put vulnerable South Africans first. It is implied that building houses, creating employment and providing welfare for poor South Africans both necessitates and justifies the closure of Refugee Reception Offices (RROs) and the abandonment of the initial post-apartheid system.

This argument implies that the majority still struggle to meet basic needs and there is competition for scarce public resources. But it indicates a zero-sum game mentality in which every advantage to the asylum-seeker is perceived as a disadvantage to the citizen. Employment is a case in point, where South Africa’s high unemployment rate is regularly blamed on asylum-seekers grouped under the “illegal migrant” umbrella. This narrative is echoed across policy, political statements and in the public sphere, provoking xenophobia and targeting foreigners as scapegoats for high unemployment and dissatisfaction which would otherwise be directed at government.

The economic argument ignores the positive economic contributions of asylum-seekers on which the regime was initially based. It is important to remember that in South Africa, we have had one of the least costly asylum regimes in the world. In fact, with the right to work, refugees have been proven to contribute to the economy positively. Research conducted in Gauteng found that far from taking jobs from South Africans, more foreign shop owners in Soweto employ locals than local entrepreneurs.[1] A 2018 study by the Organisation for Economic Cooperation and Development (OECD) and the International Labour Organization (ILO) found that refugees and migrants provide a significant boost to developing economies including South Africa’s.[2] They contribute to the economy as consumers, rent and tax-payers, but also in many instances as job creators and innovators.

The 2017 White Paper on International Migration lays out the government’s plan to build a much more expensive asylum system. The system would put refugees in “Asylum-Seeker Processing Centres” (effectively camps) for their status determination period. Camps cost close to R 28 000 per refugee per annum in some of their cheapest forms worldwide.[3] So, with close to 60 000 applications for asylum per annum and a status determination period that is known to stretch into years, the White Paper’s proposal demonstrates government’s capacity and willingness to spend much more on the asylum regime. In other words, the economic argument (with the prioritisation of vulnerable South Africans) is abandoned by government when asylum-seekers can be detained in camps.

Politics is at work here, not economics.

The ‘immigration conflation’

In other countries refugees are put in camps, but because we respect the human rights here, we don’t. But if they operate the way they do they may be forcing us to discriminate (against) them – Jacob Zuma, 2017

When Zimbabwe’s economy collapsed and its unemployment rate soared in 2009, South Africa’s asylum system was flooded with economic migrants. The 2002 Immigration Act had established a restrictive immigration regime for unskilled workers in line with the ANC’s view that immigration’s role in transformation was ‘antithetical or at best irrelevant’.[4] So, given the few options available, unskilled migrants turned to the asylum system as the only means to legalise their stay. The capacity of the Department of Home Affairs (DHA) was stretched and immigration control and refugee protection were conflated.

Since then, the number of asylum claims has dropped significantly. The DHA reported in 2015 that there were a million unprocessed asylum-seekers in South Africa – a value reproduced uncritically by the UNHCR and media, becoming something of an urban legend. This was until it was retracted by the DHA and corrected to roughly 78 000, with the explanation that the majority of asylum applications are not active – most asylum-seekers either move into immigration channels or move on from South Africa.[5] This is one of many instances, common to Europe and the UK especially, where exaggerated numbers and the use of crisis terms are emphasised over the actual substance of the “crisis”: in our case, a badly-resourced system staffed by small numbers of poorly trained officers and riddled with corruption.

Despite the decline in asylum-seekers, migration control has increasingly displaced protection as the primary goal of the asylum system. Overtly anti-foreign migrant sentiment is expressed in official policy and practice and the government discourse stridently denounces “bogus” claimants, which it claims make up over 90% of asylum-seekers. This anti-refugee stance is emulated at the RRO level through unsympathetic status determination officers and in the SAPS, where ‘police actions tell a story of the most naked form of xenophobic discrimination’.[6] The resulting low proportion of successful refugee claims is frequently cited by government as evidence of abuse of the system, justifying increasingly restrictive and deterrent measures instead of more humane administration, better channels for unskilled migrants fleeing economic dislocation, more enlightened legislation, and more resources to get through the backlog of applications.

In governmental discourse, however, asylum-seekers are not only described as fraudulent, but of ‘endangering the country’s physical and moral health’ and its ‘ability to control crime’.[7] Asylum-seekers are criminalised and the government is calling for stronger borders and detention over integration. This discourse induces a “state of exception”, through which the government attempts to suspend elements of the law and justify its violation of international obligations. We have seen states in Europe resist asylum-seekers in a similar manner, through the association of refugees with terrorism.

In our case, the association is not totally unfounded: In Gauteng in 2017, close to 60% of the suspects arrested for violent crimes in the province were illegal immigrants, rather than asylum-seekers.[8] There are, however, no statistics about South African crime in relation to refugees, although international studies show that refugee presence has been met with significantly less crime.[9] Still, with crime levels on the rise, everyone entering South Africa through the asylum system serves as an easy target for a government defending an ineffective criminal justice system.

With an official discourse that makes no effort to distinguish between refugees and illegal migrants, the refugee regime takes the hit. Asylum-seekers are portrayed as inherently problematic – swathes of fraudulent and job-stealing criminals – turning our attention from an absurdly ineffective asylum system that allows illegal migrants to live in South Africa for a status determination period of up to 15 years.

Xenophobia – also known as “Afrophobia

We need to guard against anyone who wants to use the plight of foreign nationals to score cheap political points and incite violence – Lumka Oliphant, 2015

The influx of economic migrants following the Zimbabwean crisis struck a xenophobic nerve in the South African public. Accounts of xenophobia focus on South Africa’s history of segregation and exclusion, its fragile sense of national identity and on-going nation-building process, its ethnic composition and the Bantustan legacy of essentialising African ethnicities, the high rates of inequality and unemployment and the fear of losing agency (economic and financial resources) to other Africans who are often willing to work for less. Whatever its underpinnings, xenophobia has provided fertile ground for “identity politics” and the “us vs them” rhetoric that legitimises an increasingly dysfunctional asylum regime.


South Africa’s history and the refugee protection regime’s bright beginnings have not stopped our government from capitalising on the worst fears and instincts of its people. Our refugee regime is not just “negligent”. It stands in structural violation of our avowed commitment to respect human rights while simultaneously serving the interests of the state. Without a voice or a vote of their own, refugees are stripped of their human worth and relegated to pawns in politics.

Looking beyond our borders: In Turkey, at the beginning of the Syrian crisis, Erdoğan accepted and naturalised refugee “guests” to expand his Islamic voter base. In Saudi Arabia, Mohammad Bin Salman admits refugees as ‘Arab brothers and sisters in distress’ to expand state authority in the face of declining legitimacy and regional instability. In the UK and much of Europe, the nationalist climate has incited a crackdown on refugees in a political game of fearmongering and electioneering. Finally, in South Africa, where refugees and illegal migrants are portrayed as one and the same, refugees are scapegoats for high crime, unemployment and the ineffective refugee regime itself.

Tove van Lennep

[1] Gauteng City-Region Observatory, 2015. Why our economy needs foreign owned businesses, and how we benefit from them

[4] Crush & McDonald, 2001. Introduction to special issue: Evaluating South African immigration policy after apartheid. Africa Today, 48(3): p8

[5] Green Paper on International Migration for South Africa 2016, Chapter 3, p45

[6] Somali Association of South Africa and Others v Limpopo Department of Economic Development Environment and Tourism and Others 2014 (1) SA 151 (SCA): 6 – 7

[7] S. Peberdy, 2001. Imagining Immigration: Inclusive Identities and Exclusive Policies in Post-1994 South Africa. Africa Today, 48 (3): 15-32.