The ongoing closure of Refugee Reception Offices during the national lockdown has left refugees and asylum seekers in limbo regarding their status in South Africa, writes Dr Callixte Kavuro from the Department of Public Law in an opinion piece for Daily Maverick (10 February).

• Read the article below or click here for the piece as published.

Callixte Kavuro*

Since the declaration of the national state of disaster, which was followed by the national lockdown, all public and private offices and institutions were closed down, except the ones that provide essentials services.

Offices of the Department of Home Affairs (DHA) were among those that were closed down and its services were limited to ensuring repatriations of South African citizens and permanent residents who were stranded abroad and to allow foreign nationals to depart the Republic. Closure of these offices meant that permits and visas couldn't be issued or renewed. Under different levels of the lockdown, certain crucial civil and immigration services were, however, gradually re-opened. 

Back in March 2020, the Minister of Home Affairs issued a directive that all visas and permits that expired or were due to expire on, before, or after 25 March 2020 should be deemed valid. This blank extension, which ran from 26 March to 31 July 2020, implied that all immigration visas and refugee (or asylum-seeker) permits that expired during the said period remained valid.

Still, the date of blanket extension was periodically extended. Firstly, it was extended to 30 September 2020, then to 31 January 2021 and again to 31 March 2021. Owing to the second wave of COVID-19, it is expected that this date will be extended further. More importantly, blanket extensions imply that foreign nationals' expired visas and permits are deemed to be valid if they did expire around or during the lockdown.

Public and private offices or institutions should therefore take notice that the permits of refugees and asylum-seekers are deemed valid and they shouldn't be turned away when trying to access important services. All the rights, benefits and obligations of refugees and asylum-seekers should remain the same and that they shouldn't be penalised when it is clear that their permits expired during the lockdown. It is not disputable that the Refugee Reception Offices (RROs) had been closed since the start of the lockdown and remain closed until the Minister decides otherwise.

It is, therefore, surprising that organs of the state are reluctant to accept the permits of refugees and asylum-seekers on the ground that they are expired. SASSA has been turning away refugees who want to apply for renewal of social grants or social relief of distress, whereas the traffic department has been refusing to renew PDP licences.

Refugees and asylum-seekers have been struggling to register businesses with the Companies and Intellectual Property Commission, and to apply for trading licences with municipal offices and for admission to basic or high education. Some employers are reluctant to recruit refugees or asylum-seekers whose documents have expired or to renew their employment contracts. They also find it difficult to open new bank accounts.

These frustrations add to the existing problems refugees and asylum-seekers face when trying to access public services. Findings of my 2018 doctoral study indicated that asylum-seekers are, for example, traditionally excluded from social grants to avoid the high impermissible costs that may be incurred by the state should they be included in various socio-economic programmes. This exclusion is grounded in the notion that 90% of asylum-seekers are economic migrants or job-seekers who do not fall within or deserve refugee protection. Unsurprisingly, COVID-19 relief measures weren't extended to refugees and asylum-seekers despite the latter being the most vulnerable group.

The salient question that we have to ask ourselves is: to what extent are refugees and asylum-seekers entitled to socio-economic rights and benefits, public services or COVID-19 relief measures? Indeed, this is a controversial question complicated by the national understanding that refugees and asylum-seekers are in the country to benefit from the fruits of democracy.

This view disregards the fact that South Africa acceded to international refugee treaties and incorporated these treaties into its legal system through the Refugees Act 130 of 1998 (as amended). This Act provides that refugees are entitled to all rights in the Bill of Rights, except those rights that are expressly reserved for citizens. Sections 26, 27, 28(1)(c), and 29 of the Constitution provide “everyone" with the right of access to adequate housing (or shelter), health care services, sufficient food (or basic nutrition), sufficient water, social assistance and social security as well as education. This seems to indicate that refugees and asylum-seekers are entitled to the socio-economic rights or services.

The Refugees Act, read through the lens of these constitutional provisions, signals South Africa's intention to offer effective protection to refugees and asylum-seekers, to respond to their suffering caused by past persecutions in their home countries or by disasters occurring in South Africa. The onus rests on South Africa to restore their self-reliance, participation and agency as well as to protect their dignity. This can only be done if they are given access to public services. Documenting refugees and asylum-seekers and timely renewal of documents are core mechanisms to make such access possible.

Unlike other foreign nationals, refugees and asylum-seekers are, irrespective of the temporary nature of their stay, “not" required to be self-reliant and economic independent in order to be admitted in the country. Rather, they are admitted because of humanitarian reasons and should thus be offered the necessary humanitarian protection.

However, during this lockdown, institutions providing public services have relied on expiration of permits of refugees and asylum-seekers to deny them the services they are entitled to; services that they need to lead a dignified life. The denial of such services – on the basis of the expiration of a permit – is inconsistent with the ministerial directives issued by the Minister of Home Affairs for compliance with the lockdown regulations.

The question refugees and asylum-seekers ask themselves is whether the DHA values their wellbeing as much as it does that of citizens. The RROs had been closed on the ground that long queues at these offices may facilitate the spread of the COVID-19 virus if people don't adhere to social distancing, wearing of masks, and sanitising of hands. However, we see the same queues (or crowds) at the offices of home affairs serving citizens. There is always a huge crowd with not much social distancing.

Refugees and asylum-seekers feel that the closure of RROs works to frustrate their access to services and not to protect them. Furthermore, they feel that the closure will cause a huge backlog that the DHA will find hard to recover from. It should be noted that for many years the DHA has been unable to clear the backlog of refugee status appeals, certification applications and appeals thereof and, in 2019, had to approach the United Nations High Commissioner for Refugees for help. When the lockdown began in March last year, the issue of backlog was not yet resolved.

In light of the above, the RROs should re-open and serve refugees and asylum-seekers to avoid future irregularities stemming from accumulated backlogs. The re-opening will restore hope for refugees and asylum-seekers for access to services they deserve.

*Dr Callixte Kavuro is a post-doctoral fellow in the Department of Public Law at Stellenbosch University.