Inside South Africa’s illegal immigration nightmare

via Inside South Africa’s illegal immigration nightmare | Politics | RDM 30 April 2015

Finding a solution for SA’s migration policy is about as easy as finding one for world peace and prosperity. Hemmed in on every front by the Constitution’s implied generosity to refugees and to the region’s grinding poverty — which makes economic migration an imperative for many — SA’s policy makers have a problem.

Added to this are the failures of South African education to prepare locals for the job market and the enduring social deficit that renders many locals last in line for jobs in the service sector. Taken together, the country is sitting on a time bomb that no one has found a way to defuse.

For almost 10 years government ministers have stalled on changing migration policy. The African National Congress, which passed resolutions at its conferences in 2007 and 2012 that migration policy should be revisited, is growing impatient. So are the millions of voters desperate to get a foothold in the economy. No matter the benefits brought by enterprising migrants — and there are many — this in an untenable situation.

Home Affairs Minister Malusi Gigaba came at the problem with his characteristic energy. Before the latest outbreak of xenophobic attacks, Gigaba had already held several roundtable discussions drawing on the knowledge and advice of all manner of multilateral organisations — such as the United Nations High Commissioner for Refugees (UNHCR), the International Organisation on Migration (IOM) and academic organisations. But, he says, he has no concrete proposals to put on the table and everything is still under discussion. It is not only Gigaba who seems at a loss — migration experts have little to offer in practical policy solutions.

The first instinct of policy makers under pressure is to tighten up on the flows of migrants into the country. This is happening. There is anecdotal evidence that the interview process is getting tougher and that it is harder to get refugee status.

The application form is being redesigned, says Lawyers for Human Rights’ head of refugee rights and migrants’ programme Trish Erasmus, with probing questions added to ascertain the desirability of the migrant applying for shelter in SA.

But while the government tinkers at the edges of its procedures, there are significant limitations on the extent to which the refugee system can be made more restrictive — both for asylum seekers with legitimate claims and chancers using the system to stay in SA.

The Refugees Act of 1998 states that on arrival in SA, any person — no matter where he or she is from — can go to a home affairs office and apply for asylum. As a signatory to the UN’s Geneva Conventions on refugee rights, which find expression in SA’s Refugees Act, the person must be given an interview with a refugee-status determination officer. As there can be a lengthy wait for this, all asylum seekers are legitimate until their application is adjudicated, even if, at face value, it has no merit.

“Each application must be considered on its own merit,” says Gigaba. “So a person can get onto a plane in Bangladesh, get here on a passport and then tear it up and say, ‘I am applying for asylum’. We have to take them in.”

Following the interview, a person who is not granted asylum can appeal to the standing committee of refugee affairs if the rejection was manifestly unfounded, or to the refugee appeal board for an ordinary appeal.

If these fail an appeal to the courts is a final option — which means, says Mr Gigaba, a person can stay in SA for several years, depending on how long it takes for the matter to wind through the courts.

The reality is that they often stay for much longer — hundreds of thousands of de facto economic migrants have overloaded the asylum seeker system.

Erasmus, who litigates on behalf of refugees, says that the asylum seeker system has been abused. “There have been asylum seekers in the system for five or six years. I’ve also known people without any legitimate claim that have been in the system for eight or nine years,” she says.

Gigaba says one of SA’s biggest problems is economic migrants. “When they cannot find an entry point through visa regulation, then they come as asylum seekers from countries where there is absolutely no conflict,” he says. “They clog up the asylum seeker system and make it difficult for us to provide for those with a genuine claim.”

While migrants from across the world are drawn to economic opportunities in SA, by far the largest number are from Zimbabwe. The UNHCR’s spokeswoman in SA, Tina Ghelli, says that the asylum seeker system worked well until Zimbabwe’s economic collapse.

“In about 2008 we recommended that SA set up a special programme for Zimbabweans in order to avoid the asylum seeker system from being overwhelmed,” she says.

In 2010 the government declared a special dispensation for Zimbabweans. The rationale — a key pillar of good practice in migration policy — was that the government should attempt to document those who had entered the country illegally or under other pretences.

Gigaba says that 290,000 Zimbabweans applied for the dispensation, wiping out 90% of the asylum seeker backlog. The dispensation allows those who were documented to legally work in SA until 2017.

The asylum seeker backlog, however, has since edged up again — made worse by a new government policy to shut down refugee reception centres in coastal cities and move these to the borders and ports of entry.

The decision to shut reception offices constitutes the government’s single strongest policy response to the migrancy crisis. It seems the thinking is that if migrants have no choice but to wait at the borders from Zimbabwe and Mozambique to be adjudicated, they won’t wander into the rest of SA and establish their lives while their status remains undetermined.

Litigation by Lawyers for Human Rights has forced the reopening of the offices, but only to complete the processing of existing applications — not to receive new applications.

As most migrants are, in fact, economic migrants “they will find a way and come anyway”, says Ghelli.

Erasmus agrees that moving the offices to the borders won’t address the root of the problem, “which is that the refugee-status determination system is in crisis. The overall policy is incoherent and is creating huge bottlenecks.”

The strategy looks a bit like a refugee camp policy by stealth. SA’s refugee legislation is far more generous than most others on the continent, granting asylum seekers and refugees freedom of movement. In Tanzania, Botswana, Malawi and Uganda refugees must live in camps.

Ghelli describes SA’s legislation as “one of the best refugee acts on the continent, if not the world”.

It is beyond doubt that any attempt to limit refugees’ freedom of movement will be met with a constitutional challenge, says Erasmus.

Gigaba is hopeful that a distinction can be drawn between the rights of asylum seekers and those of refugees, especially when it comes to running businesses.

“If you are an asylum seeker you are not a refugee,” he says. “You cannot have the same rights as a person whose status is determined. The law makes the distinction but it is not very clear.

“So there is a loophole and an asylum seeker — can start a business. But a business is a long-term thing. We need to find a mechanism to address this.”

Gigaba argues that the UNHCR should be taking care of the needs of such people.

Ghelli says that the proposition that the UN feeds and houses asylum seekers — or provides support to border camps — is a nonstarter. “Our funding comes from donors who will not fund a middle-income country such as SA.

“We don’t have resources to run reception camps and it would be difficult to raise funding to do that,” she says.

There is legal precedent, established in litigation brought by Lawyers for Human Rights, that asylum seekers and refugees have the right to dignity — which the Supreme Court of Appeal decided was inextricably bound up with the right to work. Gigaba says he wants to take the September 2014 ruling on review.

Erasmus says that he cannot, as the time allowed to do so has lapsed, leaving the government without a legal remedy.

With the asylum seeker system being abused and several other illegal ways established for foreigners to enter SA and acquire official documentation, policy specialists are urging the government to allow for some degree of economic migration.

The IOM country director Richard Ots says he recommends “an active labour migration policy” as people in region inevitably feel the pull of the South African economy.

“It is difficult to come in legally so people come in illegally. If the government was to allow some legal economic migration then it could get a better grip on who is in the country,” he says.

The IOM recommends that for those countries that have the strongest economy in a region, bilateral arrangements be put in place in, for example, the form of circular labour migration permits. These should allow quotas of both skilled and unskilled migrants, based upon the labour-supply needs of the host country.

The IOM also recommends a third category of “general” migrants for people who will find their own gaps in the market. “If you are able to come in and out-compete South Africans who have networks, then that makes sense,” Ots says.

Gigaba is lukewarm to the idea, saying that “it is something that we need to have consensus on in the country”.

While the idea is in keeping with best-practice policy on migration because of the opportunity it provides for the documentation of migrants, it is hard to see how, in SA, it will stem the flow of illegal migrants.

Ots says that this need not be a large quantum of people — perhaps just a couple of thousand for each neighbouring state.

An influx of people much smaller than those demanding to get into SA cannot change migration trends.

And, unlike other economies that are regional magnets, SA has an oversupply of labour in the lower-skill categories, which means migrants compete with locals for scarce opportunities. The evidence is that migrants frequently outcompete locals in the low-skill, low-pay arena.

An analysis of SA’s labour force survey done last year by Christine Fauvelle-Aymar, an economics professor at the Université de Tours, France, found that foreigners had a greater chance of being employed than locals. On the broad measure of unemployment, which includes discouraged work seekers, foreign migrants had an 81% rate of employment, compared to South Africans, whose rate of employment was 65%.

This very unusual result — in most economies locals easily outcompete foreigners for employment — is explained by employers Fauvelle-Aymar interviewed.

They point to the foreigners’ superior language and communication skills, which makes them preferred for jobs in the services and hospitality sector.

Locals could be trained for these positions but many foreigners come with experience, good English and worldly sophistication.

Foreigners — in particular Somalis — also outcompete local small-scale shopkeepers. In one of the only longitudinal studies, the Sustainable Livelihood Foundation found that over three years in the Cape flats township of Delft, ownership of spazas shifted almost entirely into Somali hands.

In 2010 ownership was more or less equally divided between locals and foreigners, the study found. But three years later, 70% of the spazas owned by locals had closed permanently, including businesses that had operated for more than 10 years. Foreign-owned shops had increased by a third.

South Africans do benefit through renting out premises for foreign-owned businesses and in employment.

A study by the Gauteng City-Region Observatory last year found that 40% of foreign shopkeepers employed people outside of their own families, more than half of whom were locals.

There are other economic benefits from immigrant populations. People who manage to leave their home countries are usually among the most resourceful and most enterprising.

With very little social support, they have no choice but to work hard in their adopted countries to build their livelihoods.

SA is a unique situation. While it is an island of prosperity in Africa, to most of its own people it is a sea of hopelessness.

A migration policy that puts South Africans first, but also takes into account the inevitability of economic migration from people facing even greater hardships, will be a tough thing to deliver.

This article first appeared in Business Day