PRESENTATION ON ― Refugees Amendment Bill, 2010

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PRESENTATION ON―

Refugees Amendment Bill, 2010

(Select Committee on Social Services :Home Affairs)

19 October 2010

Caring, compassionate and responsive

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TABLE OF CONTENTS

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1. Purpose 2. Background

South Africa’s Obligations on asylum seekers and refugees Contextualizing asylum seekers and refugees Legislative Framework Overview Asylum Seeker Management (ASM) Mandate Permits and Products Problem Statement

3. Proposed Transformation Approach4. High Level Proposed Amendments5. Amendments Clause by Clause

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1. PURPOSE


To brief the Portfolio Committee with regard

to the proposed amendments to the

Refugees Act, 1998 (“the Act”) [as amended

by the Refugees Amendment Act, 2008 (Act

No. 33 of 2008) (the 2008 Amendment Act)]

as a result of challenges experienced by

the Department on the implementation of

these Acts.

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South Africa’s Obligations on Asylum Seekers and Refugees


South Africa is a signatory to the following conventions:

1948 Universal Declaration of Human Rights 1951 UN Convention relating to the status of Refugees; 1967 Protocol relating to status of refugees; 1969 OAU Convention governing the specific aspects of refugee problems in Africa. 1993 Basic Agreement between the Government of South Africa and the UNHCR

1996 South African constitution guarantees fundamental rights to all individuals, including refugees and asylum seekers.

The Bill of Rights entrenches the rights to human dignity, freedom and security of the person, and the right of everyone in South Africa.

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Contextualising an Asylum Seeker and a Refugee


An Asylum Seeker Is a person who has fled his/her country of origin and is seeking recognition

as a refugee in the Republic of South Africa, and whose application is still under consideration.

A Refugee Is an asylum seeker who has been granted asylum status and protection in

terms of the Refugees Act No 130 of 1998. Under the 1951 United Nations Convention: A refugee can be a “convention refugee” who has left his home country and

has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or a membership in a particular social group.

The 1969 Africa OAU Convention: A refugee can also be a person who has left his home owing to external

aggression,occupation,foreign domination, or events seriously disturbing or disrupting public order in either a part or the whole of his country of origin or nationality

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LEGISLATIVE FRAMEWORK OVERVIEW


The Refugees Act provides practical implementation of the relevant international legal instruments, principles and standards relating to refugees; to provide for the reception into South Africa of asylum seekers; to regulate applications for and recognition of refugee status; to provide for the rights and obligations flowing from such status;

Refugees enjoy all the human rights contemplated in the Bill of Rights except the right to vote.

The Bill of Rights is the cornerstone of democracy in South Africa. It provides for the rights of all people in our country and affirms a wholesale of democratic values of human dignity, equality and freedom.

1996 Constitution

Refugees Act, 1998

The 1951 UN Convention on the Status of Refugees and its 1967 Protocol

The 1969 OAU (AU) Convention governing the specific aspects of refugee problem in Africa

The 1993 Basic Agreement between South Africa and the UNHCR

RSA CONSTITUTION,1996

REFUGEES ACT, 1998

LEGAL FRAMEWORK

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ASM Mandate


The ASM core mandate gives recognition to the relevant international legal instruments, principles and standards relating to refugees.

To provide for the reception of asylum seekers into South Africa.

To regulate applications that provide for the recognition of refugee status

To provide for the rights and obligations flowing from such status, including enabling documentation

Process refugee enabling documents such as ID and travel documents

Provide support services to the Refugee Appeals Board as provided for in the Act

Cooperate and assist with the voluntary repatriation of refugees.

Advise and formulate policy on refugee related matters

Monitor the functioning of Refugee Reception Offices

Liaise with stakeholders such as UNHCR, NGOs and Government Departments

The Asylum Seeker Management mandate is included in the Refugee Act 130 of 1998:The Asylum Seeker Management mandate is included in the Refugee Act 130 of 1998:

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Issuance of Permits to Asylum Seekers: S23

Provisions ImplicationsChallengesDefinition

Asylum Seekers Temporary Permit known as Section 22 Permit (S22)

The Asylum Seeker’s Transition Permit is issued at the Port of Entry in terms of Section 23 of the 2002 Immigration Act

Section 23 Permits: This permit makes provision for the asylum seeker to present himself at the Refugee Reception Office within 14 days to have his claim registered.

Absence of a track and trace system

Admittance into the country of people tha cannot be accounted for

Proposed Solutions

Movement Control Systems (MCS) to be linked to National Integrated Immigration System (NIIS).

The Immigration Amendments propose that the permit be valid for 5 days.


Issuance of Permits to Asylum Seekers: S22


Asylum Seekers Temporary Permit known as Section 22 Permit (S22)

The Asylum Seeker’s Temporary Permit is issued in terms of Section 22 of the Refugee Act which make provision of conditions of the permit

Section 22 Permits: This permit which is valid for six months is issued to asylum seekers only and legalize their stay in the Republic temporarily pending a final decision on their applications.

Limited capacity to deal with service demand

Absence of a track and trace system

Enforcing conditions

Long period in adjudication of asylum claims

Abuse of the asylum system

Recycling trends of failed asylum seekers

Manipulation of the asylum system by street agents (corruption)

Litigation- threatProposed Solutions

Improve adherence to the conditions within the permits.

Permit regime to deal with economic migrants

Improve effectiveness and efficiency of the status determination system.

System Interface


Issuance of Permits to Refugees: S24


Refugee Status known as Section 24 Permit (S24)

Section 24 of the Refugee Act provides for the decision regarding application for asylum

Section 24 Permit is a Refugee Status issued to those eligible is valid for four years.

Ineffective adjudication process.

Protracted appeal process.

High risk for national security as refugee status is issued to undeserving element through misrepresentation or corruption

Proposed solutions Improve performance of the status determination system.

Improve Information management Systems.

Amendment of the Refugee Act in terms of adjudicative procedure and capacity

Provision in the Immigration Act to deal with economic migrants.


Issuance of Permits to Refugees: Refugee ID


Refugee Identity Document

Section 30 of the Refugee Act 130 of 1998 provides for the issuance of Identity Document to refugees in the prescribed manner

A refugee, not an asylum seeker, must apply for a refugee ID book at any Refugee Reception Office within 15 days of the receipt of his refugee status in the prescribed manner

Dependency on other units and Agencies delays the process to issue

Delay in issuing Refugee ID within the required timeframe

Legal threats

Proposed Solutions

Signing of an Service Level Agreement between business (Asylum Seekers Management) and all internal role-players such as GPW, Identification, BVR, etc.

System Interface


Issuance of Permits to Refugees: Passport


Refugee Travel Document

A refugee who is in possession of a refugee ID and a refugee status valid for at least 6 months can apply for a Refugee Travel Document at any Refugee Reception Office in the prescribed manner

Technical challenge as HANIS is unable to interface with NIIS (No conversion of fingerprints)

Legal threats from those eligible and NGOs advocating for refugees

Proposed solutions

Fast track the system interface

Section 31 of the Refugee Act 130 of 1998 provides for the issuance of Travel Document to refugees in the prescribed manner


Issuance of Permits to Refugees: Certification


Refugee Certification known as Section 27(c)

Section 27 (c) of the Refugee Act provides under protection and general rights for a refugee to apply for an immigration permit after 5 years of continuous residence in RSA

Section 27 (c) is permit issued in the form of a Certification to a refugee to enable him to apply for Permanent Residence in RSA

Section 27 (c) is currently issued by SCRA which is an independent body

DHA has no control over this critical process which lead to a refugee acquiring a Permanent Residence status in RSA

Proposed solutions

Revision of the functions and powers of the statutory body currently handling the review process.

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Problem Statement


Regulatory Framework Level Non Encampment Policy

RSA does not have camps for asylum seekers or refugees neither does it have processing centers; The 2008 Amendment Act could not be implemented due to technical errors that were discovered.Implications : People whose status has not been determined , their identity not verified are “released ” into local communities,

allowed to seek jobs or open businesses ( possible security risk). People with no means to livelihood left to fend for themselves ”rendering them vulnerable to abuse and exploitation” The error affected the implementation process of the Act.Proposed Solutions: Immigration to develop a mechanism to deal with economic migrants who are currently clogging the asylum regime. The Bill seeks to correct the technical error by separating applications. Review of Memorandum of understanding with UNHCR to improve basket of services to asylum seekers. Development of an integrated service delivery model that priorities partnership building and involvement of civil

society in the provision of services to asylum seekers. Possibilities for the development of a comprehensive refugee policy to guide the development of programs that

address the complexities of refugees and asylum seekers. Extensive review of the Refugees Act to ensure that it is an enabling framework that will enhance the countries

compliance with the international legislation and adherence to best international and regional practices. Regional dialogue on issue of refugees (burden sharing principles)

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Problem Statement


Status Determination System( Implementation)

First Instance Level At this stage of status determination the emphasis is on establishing the authenticity of

the claim, analysis of the founded fear of persecution and risk assessment.Challenges: The adjudication process relies on an individual (Refugee Status Determination Officer)

who is a low level and is not in a position to carry out the task at hand. This results in the system’s credibility being undermined.

Applications for asylum from persons whose claims do not fall within Section 3 of the Refugees Act are clogging the asylum process.( economic migrants)

Proposed Solution: It is proposed that a provision for the Refugee Status Determination Committee be

made in the Act to introduce the collective decision-making process in the adjudication of the claims. This will address the challenge of responsibility to adjudicate asylum claims being concentrated on individuals (RSDOs). It will also improve the credibility of the process as it ensures quality checks.

Strengthen the capacity of officers dealing with the status determination Introduce an assessment phase to categorize applicants and establish referral systems

especially for vulnerable groups e.g. economic migrants, unaccompanied minors and those needing psycho-social assistance

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Problem Statement


Servicing Vulnerable Groups

This category will include people with disability, women and children, older persons unaccompanied minors etc

Challenges: Absence in the current Act of a provision that guide the registration of the

births of refugee and asylum seekers children, The absence of a pre –assessment process to categorise and refer those

in need of care and support to relevant institution,.Proposed Solutions – Introduction of a provision to guide the registration of birth and inclusion in

the main applicants file .. The development of an intergrated service delivery model that is

responsive to the needs of vulnerable groups,.

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Problem Statement


Review Process This is a function that is being exercised by an independent body

( Standing Committee for Refugee Affairs). Their main function is to review applications that are rejected as manifestly unfounded at the first instance stage. Manifestly Unfounded cases are applications whose grounds are other than those contemplated in Section 3(a) and (b) of the Refugees Act.

Challenges: Absence of a governance model The powers and function extend to areas that need supervision

and close monitoring.Proposed Solutions – Development of a governance model. Propose amendment of the section in the Act pertaining to their

powers and function. ( issuance of section 27 (c))

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Problem Statement


Appeals Process

This is a function that is being exercised by an independent body ( Refugee Appeals Board). Their main function is to conduct appeal hearings on applications that are rejected as unfounded at the first instance stage. Unfounded means that the claim is within the requirements of the law but the applicant failed to establish a well founded fear and systematic persecution.

Challenges: Limited capacity resulting in protracted appeal process Weak monitoring systems of the appeal structure

Proposed Solutions – Implement the Refugee Appeals Authority approach as proposed in the

Amendment Act Develop and manage a framework to guide the functions of RAB

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Proposed Transformation Approach


The Department has adopted a phased in approach aimed at the “overhaul” of asylum seeker management system:

Phase one: During this phase prioritized amendments to the Act will be proposed .

These amendments will not be addressing substantive issues. The main objective of the Bill is to provide for the establishment of a Status Determination Committee to consider and determine applications for asylum. The Amendment Bill further seeks to correct the technical error contained in the Amendment Act, granting the Refugees Appeals Authority the power to deal with both applications rejected as manifestly unfounded, abusive and fraudulent and as unfounded as appeals.

Phase Two: During this phase the review of the Immigration Policy will be undertaken ,

the development of Refugee Policy will be explored and possible further amendments on the Act will be proposed.

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HIGH LEVEL PROPOSED AMENDMENTS IN THE BILL


The main objective of the Amendment Bill is to improve the capacity, effectiveness and efficiency of the status determination system.

To further seek to correct the technical error contained in the 2008 Amendment Act.

To make provision for the establishment of the Status Determination Committee, which introduces a collective approach of decision making.

To further make provision for the establishment of the Refugee Appeals Authority. The Refugee Appeals Authority will be decentralized and located at each Refugee Reception Office.

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HIGH LEVEL PROPOSED AMENDMENTS IN THE BILL cont..


To make provision for the registration of a child born of an asylum seeker in terms of the Births and Deaths Registration Act, 1992 (Act No. 51 of 1992), (the Birth and Death Registration Act).

To provide that an asylum seeker or refugee must, after registration of a child born in the Republic, submit the certificate issued in terms of the Birth and Death Registration Act, at any Refugee Reception Office in order to have the said child included as a dependent of such asylum seeker or refugee.

The function that was vested in the Director-General to certify that a person would remain a refugee indefinitely now vests with the Minister.

The function to withdraw a refugee status is with the Minister.

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PROPOSED AMENDMENTS (Clause by clause)

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Clause 1Amendment of definitions


• Certain definitions such as the following are

being substituted:

• “Biometrics” is substituted in order to align

same with the revised definition contained in

other Bills (e.g. Births and Deaths Registration

Amendment Bill).

• “manifestly unfounded” – in order to reinstate

the definition amended by the Amendment Act.

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Clause 2Amends section (4)(1)(b) of the Act


Current: Section 4(1)(b) of the Act excludes

a person who has committed a crime

against peace, a war crime or crime against

humanity, as defined in any international

legal instrument dealing with any such

crimes, from refugee status.

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Clause 2 ...


Amendment: Amends section 4(1)(b) of the

Act by excluding a person that has

committed a crime that is not of a political

nature and, if committed in the Republic

would be punishable by imprisonment, from

refugee status.

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Clause 3Substitutes section 8(2) of the Act


Current: Section 8(2) of the Act provides that each

Refugee Reception Office must consists of at least

one “Refugee Reception Officer”.

Amendment:

Substitutes section 8(2) of the Act in order to

provide for “Status Determination Committees” at

all Refugee Reception Offices.

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Clause 3 continues…


Clause 5 further deletes section 8(3) of

the Act that requires Director-General to

appoint administrative staff connected

to the functions of the Refugee

Reception Offices.

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Clause 4 Amends section 8E of Amendment Act


CURRENT: Section 8E of the Amendment Act disqualifies a political office bearer from appointment to the Refugee Appeals Authority.

AMENDMENTS: Deletes paragraph (f) that disqualifies a political office bearer from appointment to the Appeals Authority.

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Clause 5Substitutes section 21B(2) of Amendment Act


CURRENT: Section 21B(2) of Amendment Act only provides for the registration of a child of a refugee and not of an asylum seeker.

AMENDMENTS: Substitutes section 21B(2) to provide for the registration of a child born of an asylum seeker in terms of the Births and Deaths Registration Act, 1992 (Act No. 51 of 1992), (the Birth and Death Registration Act).

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Clause 5 (continues…)


Clause 5 further provides that an asylum

seeker or refugee must, after registration of a

child born in the Republic, submit the

certificate issued in terms of the Birth and

Death Registration Act, at any Refugee

Reception Office in order to have the said child

included as a dependent of such asylum

seeker or refugee.

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Clause 6 Amends section 24 of the Act


CURRENT: Section 24(1)(b) provides that

where necessary, the Refugee Status

Determination Officer may consult with or

invite a representative of the United Nations

High Commission for Refugees to furnish

information on specified matters.

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AMENDMENT: Deletes the requirement that a

representative of the United Nations High

Commission for Refugees may be consulted or

invited to furnish information to the Refugees

Status Determination Officer, that will now be

substituted by the Status Determination

Committee.

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• This clause further amends subsection (3)(a) in

order to substitute the words “Status

Determination Officer” of the words “Status

Determination Committee”.

• The clause further provides that a hearing by

the status determination Committee must be

conducted in the prescribed manner.

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• This clause further amends section 24(4) of the

Act in order to effect the technical correction in

the Act by separating applications that are

rejected as manifestly unfounded, abusive or

fraudulent from being dealt with in the same

procedure as applications rejected as

unfounded applications.

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Clause 7 Amends section 24A of the Amendment Act


CURRENT: No provision showing that an application reviewed by the Director-General is deemed to have been finalised.

AMENDMENT: Amends section 24A by the addition of subsections (5) and (6) which provide that an application reviewed by the Director-General is deemed to have been finalised upon receipt of the decision by the applicant in the procedure to be prescribed.

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Clause 8

Amends section 24B of Amendment Act


CURRENT: Section 24B provides that an asylum seeker whose application has been rejected as manifestly unfounded, abusive, fraudulent or unfounded may lodge an appeal with the Refugees Appeals Authority.

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Clause 8 ...


AMENDMENT: To substitute section 24B(1)

to provide that an asylum seeker whose

application is rejected as “unfounded”

may lodge an appeal to the Refugee

Appeals Authority.

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…Clause 8


• Clause 8 further deletes the requirements in subsection (3)(a) that the Refugee Appeals Authority may invite a United Nations High Commission on Refugees representative to make oral or written representation before it makes a decision

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Clauses 9 Amends section 27 of the Act


CURRENT: Sections 27 empowers the Director-

General to certify that a person would remain a

refugee indefinitely.

AMENDMENT: Substitute “Director-General” by

the “Minister” to certify that person would remain a

refugee indefinitely. .

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Clauses 10… Amends section 36 of the Act


CURRENT: Sections 36 of the Act provides that the “Director-General” may after consideration of all relevant factors withdraw a person’s refugee status if such person contravened the conditions listed in that section.

AMENDMENT: “Director-General” is substituted for “Minister” to withdraw a persons’ status as a refugee.

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Clauses 10 …


CURRENT: Sections 36(1)(b) of the Act provides that an asylum seeker who has been recognized as a refugee due to an error, omission or oversight by the Refugee Status Determination Officer in good faith may have his or her status withdrawn.

•The problem experienced is that certain persons were granted status whilst they do not qualify and it is at times impossible to withdraw their status due to the qualification that an error, omission or oversight should have been “in good faith”.

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Clauses 10 (continues…)


AMENDMENT: Removes the words “in

good faith” to ensure that any status granted

due an error, omission or oversight by the

“Status Determination Committee” may be

withdrawn regardless of an error being “in

good faith or not”.

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Clause 11 Amends section 38(1)(d) of the Act


CURRENT: Section 38(1)(d) of the Act empowers the Minister to make regulations in regard to the manner and period in which applications for asylum which are unfounded, fraudulent or abusive, must be dealt with.

AMENDMENTS: The clause amends section 38(1)(d) in order to effect a technical correction by inserting the words “manifestly” before the word “unfounded”.

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Clause 12Substitution of words


CURRENT: The Act refers to “Refugee Status

Determination Officer” as the person adjudicating

applications for asylum.

AMENDMENT: Substitute the words “Refugee

Status Determination Officer” wherever they

appear with the words “Status Determination

Committee” as the committee to determine

applications for asylum.

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Clause 13Short title and Commencement


• Clause 13 provides for the short title and

commencement of the Act.

• The Act will commence immediately after

the commencement of the Refugees

Amendment Act, 2008 i.e. date of coming

into operation of this Act will be

determined by that of the Refugees

Amendment Act, 2008.

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THANK YOU

SIYABONGA

RE A LEBOGA


Documents

PRESENTATION ON ― Refugees Amendment Bill, 2010