Administrative Contempt: South Africa’s Refusal to Reopen the Port Elizabeth Refugee Reception Office

Fan_Walk_For_Peace_And_Unity_(4813216834)_(2)Megan Smith
Megan Smith earned her JD from the University of Pennsylvania Law School in May 2016, and is currently seeking admission to the Texas bar

In 2015, South Africa’s Supreme Court of Appeals ordered the nation’s Department of Home Affairs (DHA) to reopen the refugee reception office (RRO) in Port Elizabeth, a city bordering South Africa’s southern coast. DHA oversees the refugee determination process in accordance with South Africa’s <a href="http://www.refworld.org/publisher,NATLEGBOD,LEGISLATION,ZAF,4a54bbd4d,0 task assignment software.html”>Refugee Act, which loosely implements South Africa’s obligations under international refugee law. Under the Refugee Act and accompanying regulations, newly arrived asylum-seekers must apply at their nearest RRO for an asylum-seeker permit, which allows them to lawfully live, work, and receive medical treatment in the country. Additionally, asylum-seekers and recognized refugees must return to these RROs in order to periodically renew their status and permits. Since the Port Elizabeth office’s closure in 2011, recently arrived asylum seekers have had to trek to one of the three remaining RROs in Pretoria, Durban or Musina. Under The Supreme Court of Appeal’s ruling, DHA had until July 1, 2015 to reopen the Port Elizabeth RRO. DHA appealed this decision to the Constitutional Court of South Africa, which declined to hear the appeal, effectively upholding the Supreme Court of Appeal’s decision and giving DHA until November 5, 2015 to comply. Despite the court orders, DHA has not reopened the Port Elizabeth RRO.

DHA submitted affidavits to the court attesting that they closed the RRO in Port Elizabeth because it was not a commonly used port of entry, and that they intended to open a new RRO in Lebombo. However, since closing the RRO in 2011, the DHA has not opened a new RRO, thereby forcing newly arrived asylum-seekers in the Port Elizabeth area to travel 560 miles to the nearest RRO in Durban. The lack of RROs means that asylum-seekers seeking lawful presence must contend, at the least, with long trips and queues at inundated RROs. The lack of RROs places an especially heavy burden on children, the elderly, disabled, and pregnant.

Although its decision rested on a technicality—that DHA had violated notice procedures in deciding to close the Port Elizabeth RRO—the Supreme Court of Appeals demonstrated a clear understanding of the particular challenges faced by asylum-seekers and refugee communities.   The court stressed that refugees are the most vulnerable members in society because their problems are often ignored by the government. Moreover, the court acknowledged that refugee communities do not automatically coalesce around port of entries. The court recognized that asylum seekers “join family, acquaintances and communities that are already established and who are able to help support them on arrival.” Thus, asylum-seekers cannot freely choose to live and work near a remaining RRO. Instead, they are strongly tied to the location where they will receive the most support. Despite the decision’s strongly worded criticism of DHA’s inaction and the Constitutional Court’s unwillingness to grant DHA’s appeal, the office remains closed with DHA citing budgetary and personnel shortages.

DHA’s failure to reopen the Port Elizabeth RRO violates South Africa’s obligations under international law. South Africa is a signatory to the 1951 Refugee Convention, its 1967 Protocol, and the 1969 OAU Refugee Convention. Among the many rights entailed within these treaties, Art. 25 of the Refugee Convention guarantees refugees access to administrative assistance. While the Refugee Convention says little about the details of process, Art. 25 nevertheless ensures that some process exist, and obligates contracting states to help a refugee fulfill her rights under law. Such assistance includes the provision of necessary documentation (like temporary residence permits), as well as counseling and correspondence. In the very least, good faith implementation of the Refugee Convention cannot allow a state to pull back assistance without reasonable justification. While DHA claims budgetary concerns, there is some indication that it closed the Port Elizabeth RRO—along with other RROs within the country’s interior—in an attempt to dissuade and frustrate refugees from seeking protection. Such purposes surely violate South Africa’s obligations under international refugee law.

South Africa is also a signatory to the African Charter on Human and People’s Rights (Banjul Charter). Art. 12.3 of the Banjul Charter gives to all individuals within a contracting state the right to seek and obtain asylum. Whatever its motivations, DHA’s refusal to reopen the Port Elizabeth RRO arguably violates this right. Indeed, by forcing vulnerable individuals to travel over 500 miles to seek necessary administrative assistance, DHA places logistical hurdles on refugees that effectively work to deny them their right to seek and obtain protection. Refugees who cannot travel these distances run the risk of illegal presence, deportation, and even refoulement. It is also worth noting that this arguable violation of human rights under the Banjul Charter would open the door to the African Commission and African Court on Human and People’s Rights, thereby offering other venues in which to challenge DHA’s intransigence.

The continued closure of the Port Elizabeth RRO, and the resulting impact on new asylum-seekers, contravenes South Africa’s refugee and human rights obligations under international law. Moreover, the lack of RROs is driving the number of instances of corruption and violence at the few remaining RROs, making asylum-seekers even more vulnerable to a system that is not adequately protecting them. At the outset, South Africa’s refugee determination process must rise to meet the demand by granting access to the process by first reopening the Port Elizabeth RRO. If not, the overcrowding, long wait lines, violence, and corruption will persist placing greater strain not only on the asylum-seekers but on the South African government as well.

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