Advancing Refugee Protection in South Africa

Advancing Refugee Protection in South Africa

Jeff Handmaker
Lee Anne de la Hunt
Jonathan Klaaren
Copyright Date: 2011
Edition: NED - New edition, 1
Published by: Berghahn Books
Pages: 346
https://www.jstor.org/stable/j.ctt9qckdz
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  • Book Info
    Advancing Refugee Protection in South Africa
    Book Description:

    Divided into three thematic parts to guide the reader, this important volume documents the development and implementation of refugee policy in South Africa over a 10-year period from 1996 until 2006. In doing so, it addresses issues of detention, gender, children and health as well as welfare policies for refugees. The contributions, all written by academics and practitioners of refugee protection, vividly illustrate the tangible shifts and concerns of a process that is not only aimed at establishing policies and legislation but also practices concerning refugees.

    eISBN: 978-0-85745-027-2
    Subjects: Anthropology, Sociology, Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Acknowledgements
    (pp. vii-viii)
    Jeff Handmaker, Lee Anne de la Hunt and Jonathan Klaaren
  4. Introduction
    (pp. 1-8)
    Jeff Handmaker, Lee Anne de la Hunt and Jonathan Klaaren

    In one sense, almost any perspective on refugee protection in South Africa is bound to be new.¹ The protection of refugees is still a relatively new experience to South Africa. Indeed, it is only since September 1993 that South Africa began formally to deal with refugees who were not its own citizens forced into exile by the policies of apartheid. The country’s first Refugees Act came into force only in April 2000.

    Several months before the first non-racial elections, representatives of the government of South Africa and the United Nations High Commissioner for Refugees signed a Basic Agreement.² This followed...

  5. Part I The Development of Refugee Policy in South Africa
    • 1 International and National Responses to the Challenges of Mass Forced Displacement
      (pp. 11-26)
      Guy S. Goodwin-Gill

      People have been migrating in large numbers since time immemorial, for reasons of personal and family advancement, as elements in state plans to expand and develop and to avoid any number of disasters, natural and man-made. South Africa has had the full spectrum of the migration and displacement experience, moving from refugee-source to refugee-receiving country, and meeting all the complexity of mixed flows on the way.

      While refugee movements and situations have long attracted attention, at least in certain of their phases, migration in its ‘ordinary’ sense is only now beginning to feature on the international agenda,¹ even if the...

    • 2 Regional Integration, Protection and Migration Policy Challenges in Southern Africa
      (pp. 27-46)
      Loren B. Landau

      Honouring South Africa’s commitments to promoting the rights and prosperity of all its residents – citizens, immigrants, refugees and asylum-seekers – requires a regime of laws and practices that ensures that the presence of non-nationals does not foster corruption, coercion and illegality by citizens, private security firms and state agents. Despite South Africa’s commitments to ensuring that its asylum system promotes human rights, administrative rationality and the rule of law, considerable obstacles remain to achieving this end. Foremost among these is the ethos of control that continues to exert considerable influence on the country’s immigration policies and practices, from the level of...

    • 3 Talking a New Talk: A Legislative History of the Refugees Act 130 of 1998
      (pp. 47-60)
      Jonathan Klaaren, Jeff Handmaker and Lee Anne de la Hunt

      This chapter does not write the legislative history of the Refugees Act 130 of 1998 but rather a legislative history. The scope of this chapter extends only to relatively formal developments, such as the drafting of legislation and official policy documents, although we have supplemented these with other background materials as available. We argue that the legislative history of the Refugees Act demonstrates that non-state actors made a major contribution in establishing both the form and the content of legislation on refugee protection separate from migration policy in South Africa. Through this process as well as its result (the first...

    • 4 Refugee Status Determination Procedures in South African Law
      (pp. 61-86)
      Jonathan Klaaren and Chris Sprigman

      This chapter critically investigates the South African procedures for determining refugee status that were in force from 1994 until the 1 April 2000 implementation of refugee legislation, as well as the intended changes to these procedures introduced by the Refugees Act 130 of 1998. After a brief historical overview of its development, Part I sets out an understanding of how the administrative system of refugee status determination operated during the period from 1994 to 2000.¹ Part II then closely examines this system – which we term the centralised bureaucratic model – and develops an argument for an alternative, decentralised model of refugee...

  6. Part II The Implementation of Refugee Policy in South Africa
    • 5 Due Process in Asylum Determination in South Africa from a Practitioner’s Perspective: Difficulties Encountered in the Interpretation, Application and Administration of the Refugees Act
      (pp. 89-116)
      Lee Anne de la Hunt and William Kerfoot

      This chapter deals with asylum determination procedures before and after the implementation of the new South African Refugees Act. The framework for our analysis is the administrative justice jurisprudence and practice that has developed in South Africa, especially as measured against international practice. Many of the problems encountered before the Act was passed have continued well into the post-Act implementation phase, demonstrating that it is not enough to have adequate legislation in place, if there is neither the will nor the capacity to implement it correctly.

      We also examine the difficulties encountered in the interpretation, application and administration of the...

    • 6 Starting with a Clean Slate? Efforts to Deal with Asylum Application Backlogs in South Africa
      (pp. 117-135)
      Jeff Handmaker

      The Refugees Act 1998, with corresponding Regulations, did not come into force until early April 2000. Bringing the Act into force presented significant administrative challenges to the Department of Home Affairs (hereinafter the DHA or the Department), the government department designated to administer the refugee status determination regime in South Africa. One of the biggest challenges concerned a backlog of over 27,000 applications that were still awaiting first-instance decisions and a further 4,000 applications awaiting decisions at the appeal level. By the time of the second backlog project, this figure had risen to over 110,000 unprocessed applications. Many asylum-seekers have...

    • 7 Solucão Durável? Implementing a Durable Solution for Angolan Refugees in South Africa
      (pp. 136-164)
      Jeff Handmaker and Dosso Ndessomin

      The debate on durable solutions for refugees has been a contentious one, generating a wide range of differing views on the value of various solutions. The search for durable solutions remains arguably the most formidable challenge in refugee protection, particularly in the case of large refugee populations from areas with long drawn-out conflicts that show little sign of abating. Historically, repatriation has been considered the most favoured solution, notably by the United Nations High Commissioner for Refugees (UNHCR), which saw the 1990s as the ‘decade of repatriation’. However, efforts to realise this have had mixed success, as Allen and Morsink¹...

  7. Part III Special Issues on Refugee Policy in South Africa
    • 8 Detaining Asylum-seekers: Perspectives on Proposed Reception Centres for Asylum-seekers in South Africa
      (pp. 167-185)
      Frankie Jenkins and Lee Anne de la Hunt

      In contrast to most African countries, refugees and asylum-seekers in South Africa enjoy freedom of movement within the country. In many ways, the circumstances of their arrival are very different from those elsewhere in the continent. Apart from the influx of refugees from Mozambique during the civil war in that country during the 1980s,¹ South Africa has never experienced a mass influx of refugees. Many asylum-seekers are what the UNHCR refers to as ‘urban refugees’: young men, predominantly from cities and towns in their countries of origin.

      South Africa’s post-apartheid Constitution, adopted in 1996, provides that everyone has the right...

    • 9 Protecting the Most Vulnerable: Using the Existing Policy Framework to Strengthen Protection for Refugee Children
      (pp. 186-213)
      Victoria Mayer, Jacob van Garderen, Jeff Handmaker and Lee Anne de la Hunt

      Globally, children are said to form the largest demographic age group amongst refugees. Despite the lack of comprehensive data, it is estimated that children represent half of the world’s forcibly displaced population.¹ South Africa has been fortunate in recent years not to witness the large-scale refugee movements faced in many other countries on the continent. Consequently, the number of child applicants has been rather small, but not insignificant.

      Since the introduction of asylum determination procedures in 1994 up until June 2005, the South African Department of Home Affairs had reportedly received a total of 6,495 ‘child-related’ applications for refugee status;...

    • 10 Protecting the Invisible: The Status of Women Refugees in Southern Africa
      (pp. 214-241)
      Nahla Valji, Lee Anne de la Hunt and Helen Moffett

      There is possibly no one more vulnerable than the refugee woman. Every means of support gone – her livelihood, the home she built, her dowry, her flock of goats or sheep, the well she dug, her household gods and shrine, the garden and crops she tended, the neighbours she talked to over the fence, her extended family, very often her husband and male relatives – disappeared into the maw of civil war, fled ahead of her, hauled away by security police or the militia. She does not know whether or not she is a widow, what has happened to the family’s savings,...

    • 11 Realising Rights: The Development of Health and Welfare Policies for Asylum-seekers and Refugees in South Africa
      (pp. 242-277)
      Florencia Belvedere, Piers Pigou and Jeff Handmaker

      There is currently no coherent government policy dealing with health and welfare service provision for refugees and asylum-seekers. In addition, there is no central point of contact where asylum-seekers and refugees can turn for information or for service provision. This chapter reports the findings of a UNHCR-commissioned study that begins to provide some background to address these policy and service provision gaps.¹

      This chapter and the underlying study specifically focus on the provision of health and welfare services for refugees and asylum-seekers. In terms of health, the study sought to address access both to primary health care and to hospital...

  8. Conclusion
    (pp. 278-290)
    Jonathan Klaaren and Jeff Handmaker

    It has been said that one of the greatest tests of a country’s democracy is how its government and people treat foreigners. The many years of struggle in South Africa against an unjust regime, together with a destabilisation campaign by the previous government, made the southern African region host to one of the largest refugee populations in the world. As South Africa now becomes host to increasing numbers of forcibly displaced people, the results of the test this apartheid legacy poses for the new, yet entrenched, South African democracy are being vigorously critiqued. This book has aimed to be part...

  9. Appendices
    • APPENDIX 1 Refugees Act 130 of 1998
      (pp. 291-303)
    • APPENDIX 2 Regulations to the South African Refugees Act Government Notice Department of Home Affairs No. R 366, 6 April 2000
      (pp. 304-316)
  10. Bibliography
    (pp. 317-328)
  11. Notes on Contributors
    (pp. 329-330)
  12. Index
    (pp. 331-336)