By Thandeka Duma
Weeks spent in queues turned into months and months turned into years for a Burundian mother of four who applied for asylum in South Africa back in 2008. Her asylum application was rejected by the refugee status determination officer (RSDO) and she appealed this decision to the Refugee Appeal Board (RAB) in the same year. Having appealed her status denial in 2008, today she awaits the outcome of her appeal — more than four years later.
She is only one of thousands of asylum-seekers kept on a knife’s edge by the RAB.
A number of organisations that deal with asylum-seekers have published numerous reports relating to deficiencies in the South African asylum system and although recommendations are made in these reports, which, if carefully considered, may help to improve the system, are largely ignored.
Asylum-seekers are a vulnerable group of society. In addition to the trauma and abuse suffered in the country of persecution, they find themselves in a foreign country where they do not speak any of the local languages. South Africa’s deficient asylum system adds to this vulnerability. The refugee status determination process is flawed; file transfers are impossible to obtain, refugee office closures restrain accessibility, asylum-seekers are charged exorbitant fines while the police and immigration officers work night and day to arrest illegal migrants.
Extensive delays in processing asylum applications are an area of great concern. Regulation 3 (1) of the Refugees Act 130 of 1998 state that “applications for asylum will generally be adjudicated by the Department of Home Affairs within 180 days of filing a completed asylum application with a Refugee Reception Officer.”
There are asylum-seekers who have been waiting to be interviewed by an RSDO since 2008. Others interviewed in 2008 are still waiting for a decision while others wait for hearing dates. The explanation given for this delay is that the RAB member who heard the appeals vacated office before they could make a decision. This means this group of asylum-seekers would have to be rescheduled for another hearing. As to when this hearing would be scheduled is anyone’s guess. Since some asylum-seekers wait to be scheduled for a hearing for more than four years, this means that years spent in queues waiting for a RAB decision may turn into decades.
Even though an asylum-seeker is entitled to study or work while the asylum application is pending, those who cannot afford to study or are unable to find work cannot access social services such as child-support grants, disability grants and pensions since these are only available to refugees, citizens and those with permanent residence. While this makes sense because asylum-seekers are in the country temporarily and it is expected that their claim will be adjudicated within six months, this is not the reality on the ground. They are people who have held an asylum-seeker status for over five years.
Because of the delay in adjudicating claims, asylum-seekers formulate ties in their communities. They establish relationships, marry and have children. Women experience difficulty since they are not able to find work and also cannot access child-support grants. Often, the fathers disappear and women are left on their own without any social assistance. They are evicted by landlords and forced to beg on the streets.
Those able to find work have to deal with employers who take advantage of their vulnerability. When they seek assistance from the relevant departments, they are ill-advised or turned away often due xenophobic sentiments. We assisted one client who worked in the road freight industry. As I questioned him regarding his employment conditions, tears streamed down his cheeks. He said, “You see sister, that woman is cruel. I worked seven days a week and I was not allowed leave. If I took leave, an amount of R300 or more per day was deducted from my salary. I was however getting paid less than R300 a day. At one stage, she deducted more than R1 500 from my salary and she only returned it after I had taken her to the Commission for Conciliation, Mediation and Arbitration. Sometimes she did not pay me my salary and gave me about R500 to keep me going even though I was earning R7 000. I did not have a set time for starting and ending work. I worked until midnight. She gave me a company vehicle and company keys and this allowed her to call me at any time of the day to fix a truck. Sometimes I would work until 3am.”
This client was summarily dismissed and when he approached the National Bargaining Counsel (NBC) for help, he was given bad information and thereafter turned away. Only after our office intervened was he taken seriously by the NBC staff.
Those who are forced to resign or their employment is terminated due to being mistreated by employers cannot access the unemployment insurance fund (UIF) because according to the department concerned, an asylum-seeker permit is not proof of identity. Although those who were lucky enough to flee their country of origin with their passports can access the UIF, once the passport expires, the department cannot accept it.
At this point, it is not clear as to what plans the department of home affairs has in order to improve the system. Although there has been talk about moving refugee reception offices to the border, this will prove to cause more problems than be a solution.
Thandeka Duma is an attorney with Lawyers for Human Rights’ Refugee and Migrant Rights Programme in Durban.
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