20 June 2018

OPEN LETTER TO THE PRESIDENT FOR WORLD REFUGEE DAY

Dear President Ramaphosa

We address you in this manner, as a youth of 1976, as a trade union leader at a time when the only agenda was
the liberation of our people, and when the word “refugee” applied to many thousands of South Africans who fled
the oppression of the apartheid regime and sought and found protection in other countries.

Now that you are President, we wonder if you are aware of how poorly asylum seekers and refugees are treated
in South Africa, and how the Department of Home Affairs disregards not only the laws in South Africa and the
values of the Constitution, but fails to comply with the UN and African Union Refugee Conventions which South
Africa signed after the fall of apartheid.

To mark World Refugee Day in South Africa we need to detail for you the very many harmful, unlawful, and cruel
practices and policies perpetrated by the Department of Home Affairs against some of the most vulnerable peo-
ple in our country.

Unlawful refusal to renew permits

Are you aware for example, that there are hundreds of thousands of asylum seekers whose applications for refu-
gee status have not been finalized and that we are reported to have the largest backlog in the world? Many have
been in South Africa for more than 5 or 10 or 15 years and longer. How is that possible if there is political will that
so many people are left in limbo for years on end?

Are you aware that these asylum seekers are required to return regularly to the Refugee Reception Office, which
is often many miles away from their home, to have their permits extended while waiting year after year for this
final decision? Files may not be transferred from one province to another on request, so some have to travel for
example from Cape Town to Musina each time. More recently, since Minister Gigaba’s return, the Refugee Re-
ception Office has expanded a practice already declared unlawful by the courts, of turning asylum seekers away
on extension date, giving them “appointment slips” or date-stamps on the back of their permit for a week or
1
month later, only for them to receive nothing but another appointment slip or stamp when they return, most
often repeatedly. Now many walk around with torn and tatty outdated permits, a symbol of disregard and willful
disrespect and non-compliance.

As a result, law-abiding asylum seekers become undocumented, at risk of arrest and deportation and extremely
vulnerable to widespread corruption and bribes by officials. Some have lost their jobs as a result, and others have
been denied access to hospitals. If you fail to return on the due date, some frustrated at the many unsuccessful
attempts, you will be required to pay an “overstay” fine at some point when they are ready to renew your permit.
The fine is R1000.00. Often you pay and are still not assisted.

The financial impact of this highly inefficient and irregular process, is severe. The emotional toll and impact on
mental health is severely damaging, affecting the entire family.

We can send you a recording of an interview with an asylum seeker with a genuine refugee claim who has been in
South Africa for 11 years. Since June 2017 she has been to the Refugee Reception Office 15 recorded times in 7
months to renew her permit, without being assisted. We can only weep with shame at how our constitutional
values and the Right to Dignity are willfully eroded on a daily basis.

Unlawful denial of of the Right to Apply for asylum

Are you also aware, Mr President that since 2017 new asylum seekers, who arrive as many do, without passports,
are unlawfully denied the right to apply for asylum and are left undocumented and unrecorded in the country? A
passport is in practice a document of privilege for those who have the means to travel far. In circumstances of
flight and war, there is no time or will to apply for a passport from the state you are fleeing from, when your life is
at risk. To turn away for example, even asylum seekers from Syria, whose passports were stolen outside the Ref-
ugee Office where gangsterism is rife, and who have copies of their passports, reflects a dereliction of duty and
an abuse of power.

The best interests of the Child are ignored

Do you know that there are thousands of children who, as dependents of their parents, are automatically entitled
to be documented as refugees or asylum seekers, yet they are repeatedly, sometimes for years, not assisted.
There is also a new trend, despite alternative verification processes in terms of the Act, of the DHA insisting on
expensive DNA testing to prove parenthood, which leaves children undocumented as the parent does not have

2
the funds to pay for the test. Many schools pressured by the DHA, insist on children being documented and this
causes great stress for the children concerned.

There are also children who have fled war zones, or lost their parents en route or in South Africa, who are unac-
companied, or separated or orphaned and who are turned away at the Refugee office because they are unac-
companied and minors. No effort is made to assist, or enlist social workers, or find solutions. A High Court ruling
in 2013 which held that children must first and foremost be documented by the DHA, has never been imple-
mented and the matter remains on appeal. Why would the department not want to take any responsibility for
these extremely vulnerable children?

Disregard of Court Orders

Many of the DHA practices are declared unlawful and unconstitutional by the High Court, which is in itself a
cause for concern. Worse then that these decisions are taken on appeal, while the unlawful practices continue.
Court orders are also ignored, as in the cases of the High Court ordering the re-opening of the Refugee Reception
Offices in Cape Town and Port Elizabeth.

Denial of the Constitutional Right to dignity and family life

Do you remember the apartheid laws which denied free choice in marriage? Do you know that the DHA refuses
to allow asylum seekers their constitutional right to marry and has taken a court ruling that this policy is uncon-
stitutional, on appeal?

Are you aware that banks do not allow asylum seekers the right to open bank accounts because it appears that
they are advised that despite an asylum permit being lawful and valid, a section 22 permit means that the appli-
cation has been rejected? Are you aware of the vulnerability this places on asylum seekers, and the vast number
of personal and business thefts perpetrated against asylum seekers as a result of it being widely known that
there is cash lying around?

Since Minister Gigaba’s return, an inhumane policy has been re-implemented when asylum seekers receive their
final decisions. We have an example for you of an asylum seeker who arrived in South Africa in 2003 and has
been renewing his permit repeatedly since this time. In June 2018 when he went to renew his permit, he received
a final written decision, purportedly determined 8 years earlier, rejecting his application. He was immediately
arrested and is currently detained, despite legal representation for his release. He has a wife and two sick chil-

3
dren, lawfully residing in South Africa. Up until Minister Gigaba’s return, the DHA issued Immigration Notices to
Depart in such situations, giving a rejected asylum seeker 14 days to find legal representation to appeal the deci-
sion at the High Court or to make plans to depart the country where they have resided for, in this instance, 15
years.

Detention

Since 1997, over 12 reports have been published following visits and inspections by amongst others, Judges
Cameron and Moseneke from the Constitutional Court, the South African Human Rights Commission, Doctors
without Borders, PASSOP and others. The 1999 South African Human Rights Commission Report into the Arrest
and Detention of Suspected Undocumented Migrants” noted inter alia the following:

1. If a society’s respect for the basic humanity of its people can best be measured by its treatment of the
most vulnerable in its midst, then the treatment of suspected illegal immigrants, detailed in this report,
offers a disturbing testament to the great distance South Africa must still travel to build a national cul-
ture of human rights. [Executive Summary – Page 5].

2. South Africa is a sovereign state based upon a Constitution. Its democratic principles embody universal
standards of human rights and the rule of law in South Africa, therefore must be upheld. That means that
the government of South Africa must govern guided by the Constitution and the law. And the govern-
ment must provide for law and order including an immigration policy. [Preface page 6];

3. This report deals with the chronic pathology in the system… [Preface page 6] …it appears that the immi-
gration system does not now operate, as it should. It has come to the attention of the public that people
are wrongfully and unlawfully detained under the current immigration legislation; that the process of ar-
rest and detention of would-be immigrants is arbitrary and, therefore, violates the rights of citizens and
other residents; that corruption and bribery are rife; that those detained in cells in South Africa’s main
awaiting-repatriation detention facility are often subjected to inhumane treatment and indignity.

4. If the composition of the population at Lindela is anything to go by, it would suggest that only people of
African origin are arrested and deported as illegal aliens – (SAHRC – Report on a Visit to Lindela Repatri-
ation Centre (28th October 1997).

4
 5. This investigation established that problems relating to lack of due process do not stand in isolation from
the perhaps more serious and often closely tied problem of police corruption. [4. Abuse of Power: Cor-
ruption and extortion page 24].

6. It should also be pointed out that we found no white persons detained at Lindela. There is strong evi-
dence that many citizens and legally resident non-citizens were more vulnerable to apprehension and
detention under the current enforcement practices of the Aliens Control Act because there were black
and darker skinned. The current legislation and practices relating to its enforcement has thus created a
situation under which the basic human dignity of all persons is potentially at risk, and is more particularly
compromised for certain categories of persons. [5. Violation of Right to be treated with Human Dignity
Page 27].

7. In general, the reports of ill-treatment point towards a pattern of routine, if not systemic, physical abuse
perpetrated against the detainee population. [3. Assault/Ill-treatment in Detention at Lindela Page 40].

8. While questions relating to the adequacy of minimum standards were specifically excluded from the sur-
vey, a number of those interviewed non-the-less indicated that they had found significant problems re-
lating to the conditions at the Lindela facility. The three most common complaints were: lack of ade-
quate nutrition, irregular or inadequate medical care and systemic, forced interruption of sleep. [4. Ade-
quacy of facilities conditions at Lindela Page 42].

Are you aware Mr President that despite clear recommendations being made in report after report over the past
twenty years, there is little if any improvement in the conditions of detention. It is clear that the DHA uses deten-
tion and deportation as an inhumane tool to manage migration in South Africa.

According to the DHA, there are almost no material conflicts in Africa

Are you aware Mr President that 96 out of every 100 asylum applications are rejected and that many if not most
of the decisions taken by Refugee Status Determination Officers (“RSDOs”), reject the application for asylum as
“fraudulent”. According to Asylum Seeker Management the vast majority of rejected applicants are “economic
migrants” and not refugees.

Asylum seekers who seek refuge in South Africa come predominantly from countries known for human rights
abuses and/or countries with serious civil disorder - the DRC, Burundi, Somalia, Eritrea, Ethiopia, Syria, South
Sudan.

5
We implore you to read some of the decisions made by the RSDOs. Aside from the fact that many decisions are
cut and paste exercises, and extremely amateurishly prepared, often reflecting nothing of relevance to the claim,
many decisions also disturbingly reflect that Africa appears to have no conflicts at all. The DRC from which many
refugees flee, is reflected as having a wonderful constitution and therefore a government which protects its peo-
ple. The problem lies not with the government, but only “the rebels”. The situation in Burundi or Syria is also just
fine for people to return to, when that is clearly not the case. Why is it that the DHA officials appear to be biased
in favor of leaders and regimes in Africa who are known to oppress their people, rather than supporting our
brothers and sisters from Africa who seek protection here? Why has the DHA no memory of our apartheid past
and how badly people in government can abuse their power and oppress citizens in their own countries?

Call for action

We urge you Mr President to make an unannounced visit to the Refugee Reception Offices and speak to ordinary
asylum seekers about the way they are treated “like dogs”: spoken to dismissively, pushed and shoved, told to
“go back to your country”, “there is no war in Syria”, kept waiting the whole day only to be turned away repeat-
edly, and subjected to endless requests for bribes before they are assisted.

The Department of Home Affairs is in crisis, operating in flagrant disregard of constitutional values, cripplingly
inefficient, poorly managed with reports of widespread bribery and corruption. There is no complaints mecha-
nism or transparency and a total disregard of the Batho Pele principles.

Without changes at the highest levels, the Department of Home Affairs will continue to be a threat to our
democracy and the values espoused in the Constitution.

The risks to our democracy emanate not only from theft of public funds, but also from the flagrant undermin-
ing of the values of our Constitution. We urge you to use the mechanisms available to you as you have done in
other instances of malpractice, to ensure that by 2019, we can celebrate South Africa’s contribution in sup-
porting and protecting refugees.

Signed:
LAWYERS FOR HUMAN RIGHTS