Johannesburg: South Africa receives more asylum seekers than any other country in the world with people mainly coming from Zimbabwe, the DRC, Burundi, Ethiopia, Rwanda, Somalia, as well as from countries further afield to escape poverty, insecurity and political turmoil. Up to 1.4 million of South Africa’s refugees and asylum seekers are Zimbabwean, representing almost 15% of Zimbabwe’s population.

Political instability and oppression and the continual threat of violence, poor health and social conditions, as well as the bleak economic prospects ahead are among the major factors that push many young Zimbabweans to emigrate. The slow and problematic implementation of the SADC facilitated Global Political Agreement in the country has fuelled renewed fears of more political turmoil and electoral violence in the near future.

*  With the increasing pressure that this process has placed on South Africa, deportation has become an instrument used by the SA Government to attempt to deter migration. Before 2009 South Africa was deporting about 300,000 Zimbabweans a year1.

*  After the outbreak of xenophobic violence that followed these deportations, on 3 April 2009, the Department of Home Affairs announced its intention to grant Zimbabweans in South Africa a twelve-month ‘special dispensation permit’ on the basis of the 2002 Immigration Act, section 31 (2)(b). This permit was meant to grant the right to legally live and work in the country. In addition to this the department announced a moratorium on deportations and a 90-day free visa for Zimbabweans entering South Africa to be implemented from May 2009.

*  In early October 2011 the South African Government announced that it would resume deportations.

* Between October and December 2011 the Beitbridge Border reportedly handled 7,755 deportees, while an additional 7,177 Zimbabweans were deported between January and March 2012.

* The findings of this report reveal that the deportation process involves an array of inconsistencies, violations and abuses consistent with other reports that have been carried out in this area over the last decade. This is despite the fact that South African law regulates the arrest, detention and deportation of illegal foreigners under the Constitution, the Immigration Act and accompanying regulations, and the Promotion of Administrative Justice Act.

*  Regularising the immigration status of the vast number of asylum seekers has placed a great deal of pressure on the Department of Home Affairs. Despite migration in recent years being largely predictable in terms of its numbers and locations of migrants, the department has continued to provide inadequate capacity at refugee reception centres.

*  The report indicates that the asylum process is a long and burdensome one; it can take anywhere from two to three years before an applicant even receives an interview to assess a refugee claim. Moreover, in cases involving the renewal of documents, this often involves having to spend several days in queues to acquire them, resulting in a loss of earnings or even the loss of a job.

*  Alarming trends of disregard for the law were observed in the verification/screening process. The method of identifying so called illegal immigrants is not transparent and has dangerous effects on the sentiment towards foreign nationals in South Africa. 

*  The procedure for informing people that they have been found to be illegal and of their rights to contest their deportation is handled in a very inconsistent manner. Moreover corruption and harassment at the time of arrest also appear to be occurring on a national scale.

* The detention stage in the deportation process was found to be littered with abuse, neglect and failure to respect the rule of law. Detainees held in Lindela reported not going through any medical screening before detention. Data shows an almost complete lack of access to medical services, including ARV’s. The length of detention is also of serious concern. It was common practice for detainees from countries further North of Zimbabwe to be held in Lindela for longer than 120 days, but even Zimbabweans have on occasion been detained for more than the 120 days. Moreover, several reports including from legal professionals described a release and re-arrest cycle of immigrants used to circumvent the 120 day maximum.

* It is important to note that South African law does not require asylum seekers and refugees to be detained (Refugees Act 130 of 1988). Immigration officers must use their discretion in deciding whether or not to detain someone, and because of the harmful effects of detention, officers must do so in favour of liberty. The findings of this report indicate the officers’ discretion is in favour of incarceration.

* There are indications that the arrest, detention and deportation, coupled with the physical abuse of children occur regularly in the Musina/Beitbridge area.

• Recommendations

“We need to work together as Africans to solve our problems”

1) It is in South Africa’s economic, security and social stability interests to continue to make significant political investment in stabilising the political turmoil that plagues countries in SADC, which make up the greatest number of asylum seekers in South Africa.

2) The South African DHA has an obligation to provide a greater number of RROs and to ensure that these are run efficiently, so that all asylum seekers have timeous access to an official, enabling them to apply, acquire or to renew asylum documents without punitive queues and bribery. The self admitted flaws in the documentation process are reason enough to halt arrests, detentions and deportations until these flaws have been corrected.

3) Children ought to be considered foremost as children and not as migrants of any type. Unaccompanied foreign minors are required by South African law to be given access to education, health care and safety – the same rights as South African children.

4) The verification/screening system must be improved upon if there is any hope of reducing the number of innocent detentions and deportations, and minimizing the risk of law suits. Civil society could play a pivotal role in this process if they were allowed access to detainees.

5) Efficient independent monitoring needs to be reinstituted. No independent monitoring has been permitted since 2009 when the monitoring being conducted by the Forced Migration Studies Programme at the University of the Witwatersrand was halted midway through their research. The only independent body that does have permission to monitor conditions at Lindela, is the South African Human Rights Commission. The SAHRC are in fact mandated to oversee and conduct external monitoring of immigration detention facilities, but according to LHR, their monitoring up until now has been “haphazard and infrequent".

6) South Africa should adopt the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). This would allow for independent monitoring of immigration detention centres.

7) The South African Government should consider reinstating the Zimbabwean Dispensation Project and once more declaring a moratorium on deportations until after an election in Zimbabwe. Furthermore the department should extend the dispensation to all African countries until the number of undocumented immigrants is greatly reduced. Deportations are an ineffective and an expensive policy as those deported almost always return within days.

8) The jailing and sentencing of immigrants for up to 4 years imprisonment who breach immigration laws, which is soon to be implimented as it is included in the Immigration Amendment Bill, is not practical as the department of correctional services is already struggling with limited jail space. The situation is so bad in prisons that a presidential pardon of prisoners with 6 months or less left on their sentences was announced recently. The decision was attributed to overcrowding in prisons, showing how desperate is the situation of overcrowding in South African prisons.

9) The involvement of youth in immigration raids in Musina is a serious concern. The encouraging of youths to combat crime is very dangerous as it can lead to vigilantism and mob justice. Officials encouraging youth action, while often blaming foreigners for crime, can lead to xenophobic violence.

10) The deportation of Zimbabweans in Musina without any due process- merely herding immigrants into deportation trucks- needs to be halted immediately.

11) Corruption is very difficult to combat, without transparency and accountability. Ensuring that procedures are consistently followed and immigrants were adequately informed of their rights, would reduce the “opportunity” for corruption.

12) Better training on Immigration Law for SAPS and the removal of SANDF from immigration control is necessary in order to demilitarise immigration raids.

13) An amalgamation of NGO’s working with refugees and migrants should consider establishing an information system and a website on which instances of breaches in law, harassment and corruption could be recorded.

• Executive summary to: Perils and Pitfalls ‐Migrants and Deportation in South Africa, Solidarity Peace Trust/Passop, June 2012. The 44 page report can be accessed here.