The Refugees Act (No 130 of 1998) says that South Africa cannot refuse to allow a foreigner into the country or force them to return to their own country if in their own country:

• They would be persecuted because of their race, religion, nationality, or political opinion because they belong to a certain social group for example because of sexual orientation, and/or
• Their lives would be in danger because of a war or serious disruption of public order.

Some of the people from other countries who are among us are ‘asylum seekers’ – they are people who have fled from their own countries because of political conflict or war. They are asking for refugee status in South Africa so that they can have some protection, while they wait for the time when it is safe for them to go home again. The Refugees Act of 1998 and regulations apply to refugees living in South Africa.

DEFINITIONS OF ASYLUM SEEKERS AND REFUGEES

A refugee is a person from another country who has fled to South Africa to escape war or persecution, and who has been granted refugee status under the Refugee Act, No. 130 of 1998.

An asylum seeker is a person from another country who has fled to South Africa to escape war or extreme violence, and who is formally seeking refugee status, but has not yet been granted it.

An undocumented foreign national is a person from another country who has entered South Africa and who is in the country illegally because they have not engaged with any formal processes to legalise their residence – or they have not engaged successfully. The person is undocumented in South Africa, however they may have documentation in their country of origin.

If a person or their dependants fall into one of these categories then they could be regarded as refugees. But, a person does not qualify to be a refugee if they have committed a serious non-political crime. People who are fleeing from economic hardship (no employment) or natural disasters (like floods or earthquakes) are not recognised as refugees in terms of the Refugees Act.

APPLYING FOR ASYLUM

At the place where the person seeking asylum enters South Africa, they will be granted a transit permit which is valid for 14 days in terms of the Immigration Act. A person who wants to apply for asylum must go to the refugee reception office during this time to submit an eligibility determination form (form BI-1590).

You have the right to be assisted in English when making an application. Once you have made an application for asylum you will receive an asylum seeker permit. This is often referred to as a Section 22 permit. If you have been issued with this permit, then any other permit issued under the Immigration Act falls away.

The asylum seeker permit can be extended from time to time and will be valid for up to 6 months, after which it can be renewed. (See Resources for names of organisations that will assist with refugee and asylum problems) The government can withdraw the asylum seeker permit (Section 22) if:

• The applicant goes against any of the conditions on the permit
• They find that the application is not based on the truth
• The application for asylum has been rejected

If a permit has been withdrawn the person seeking asylum can be arrested and detained until their application for asylum has been finalised.

When the government is deciding on an application for asylum they must explain the procedures to the person and tell them what their rights and duties are.

The Refugees Act says asylum seekers are not allowed to work or study. The South African Human Rights Commission challenged the Refugees Act which states that asylum seekers are not allowed to work or study. As a result, the Department has instructed all Refugee Reception Offices to endorse the Section 22 permits allowing asylum seekers to work or study.
(See Resources for names of organisations that will assist with refugee and asylum problems)

THE REFUGEES AMENDMENT ACT (NO 17 OF 2017)

The Refugees Amendment Act was signed into law on 14 December 2017, but it can only be properly implemented once the Draft Regulations are finalised. These are some of the main aspects of the Act:

• Applying for asylum

The Refugees Amendment Act requires an asylum seeker to report to a Refugee Reception Office no later than five days after arriving in South Africa – or they can be excluded from refugee status. Those without an ‘asylum transit visa’ will be interviewed by an immigration officer to determine whether they have ‘valid reasons’ or not. Those who’ve entered ‘illegally’ risk being excluded from applying for asylum. All existing dependents must be declared upon applying for asylum.

• Refugee Reception Offices

Under the Refugees Amendment Act, the Director-General of Home Affairs would be able to establish as many Refugee Reception Offices as they regard as necessary – ‘notwithstanding the provisions of any other law’. They would also be able to direct any category of asylum seekers to report to any ‘place specially designated’ when applying for asylum, implying something other than a Refugee Reception Office.

• Ability to work and study

Under the Refugees Amendment Act, asylum seekers would not have an automatic ability to work or study. The right to work or study would have to be ‘endorsed’ on an asylum visa following an assessment process to determine whether an asylum seeker can support themselves in any way.

• Exclusion from refugee status

If implemented, the Refugees Amendment Act would expand the reasons why an asylum seeker could be excluded from refugee status. This would include committing a Schedule 2 crime, entering illegally into South Africa, or an offence related to fraudulent documentation. It would also include those who are fugitives from justice in countries ‘where the rule of law is upheld by a recognized judiciary’, and those who do not apply for asylum within five days of entering South Africa.

• Abandoning asylum claims

Under the Refugees Amendment Act, an asylum claim will be considered ‘abandoned’ if an asylum seeker does not report to a Refugee Reception Office thirty days or more after the expiry of their asylum permit. Discretion is allowed but only if the asylum seeker can prove that they had ‘compelling reasons’ for having an expired permit. These reasons must be provided to the Standing Committee for Refugee Affairs.

• Changes to the appeal system

The Refugees Amendment Act will create the Refugee Appeals Authority, which allows for one member to make a decision (rather than the current quorum, which is three members) and for more flexible appointments of staff and Refugee Appeal Authority members.

• Withdrawing refugee status

The Refugees Amendment Act would expand the reasons for which a refugee status could be withdrawn. Several actions could result in the withdrawal of refugee status – including a refugee seeking services from the consulate of their country of origin. The Act would allow the Minister of Home Affairs to announce a withdrawal of refugee status for a whole category of refugees (or an individual).

• Permanent residency

The Refugees Amendment Act would double the amount of time a refugee has to reside in the country before being allowed to apply for permanent residency. This application, which involves applying to be recognized as an ‘indefinite refugee’, will only be possible for those who’ve been granted refugee status for ten years, which is double the current requirement of five years.

REFUSING AN APPLICATION FOR ASYLUM

If an application for asylum is rejected the person must be given the reasons in writing within 5 days of the refusal. If asylum is refused on grounds that the application is ‘manifestly unfounded, fraudulent or abusive’, the Standing Committee for Refugees will review the decision to refuse asylum. Such a case does not go to the Appeal Board.

An asylum seeker can lodge an appeal with the Appeal Board once they have been told that the application has been refused. The applicant must be allowed to bring a legal representative to the Appeal Board hearing if they request this.

RIGHTS OF ASYLUM SEEKERS

An asylum seeker:

• Has the right to healthcare, and access to public healthcare services
• Has the right to look for work. If employed, the Basic Conditions of Employment Act will apply, and the person must be paid a minimum wage.
• Cannot be refused access to education. As a holder of either a Section 22 or a Section 24 permit, a child is entitled to access to education at public schools.

APPLYING FOR A REFUGEE PERMIT (SECTION 24)

Applicants will be interviewed for their refugee status application. They may bring witnesses or a person who can speak English to assist them in telling their story. They must also bring supporting documents such as:

• Birth Certificates
• Photographs
• Personal records
• Research done about conditions in their home country, including newspaper articles

They will be notified about the outcome of their application within 180 days.

WHAT HAPPENS IF AN APPLICATION FOR REFUGEE STATUS IS DECLINED?

The person will be given 30 days to submit an appeal to the Refugee Reception Office or to leave the country. In the appeal the person must state reasons why they should not go back to their home country.
A person can appeal on the basis that:

• The correct procedure for processing the application was not followed
• The facts on the application were not taken into consideration
• The person who interviewed him or her was biased

WHAT HAPPENS IF THE APPLICATION FOR REFUGEE STATUS IS APPROVED?

• If the application is successful, the person will be granted refugee status and a Section 24 Permit that is valid for two years
• They will immediately be issued with a Refugee ID in terms of Section 30 of the Refugee Act
• This Section 24 Permit must be renewed at the Refugee Reception Office 90 days before the expiry date

RIGHTS AND DUTIES OF REFUGEES

A refugee:

• Has all the rights contained in the Bill of Rights, except rights specifically reserved for citizens, for example, the right to vote
• Can apply for an immigration permit in terms of the Immigration Aliens Control Act after living in South Africa for 5 years after the date that they were given asylum
• Can get an identity document and passport
• Can look for work and the Basic Conditions of Employment Act applies if employed.
• Can use the basic health care services and primary education facilities
• May apply for social assistance grants, mainly the Disability Grant and Foster Care Grant. (See Social grants)

To view a sample of Form BI-1590 ‘Eligibility Determination Form for Asylum Seekers‘ (for Sections 22 and 24) click on the link: https://www.passport2000.com/files/BI-1590.pdf