‘Draconian’ Immigration white paper shows contempt for democracy, says Lawyers for Human Rights

Home Affairs Minister Aaron Motsoaledi. Picture: Phill Magakoe

Home Affairs Minister Aaron Motsoaledi. Picture: Phill Magakoe

Published Feb 7, 2024


While the end of January marked the deadline for public comments and submissions on the Department of Home Affairs White Paper, which is aimed at an overhaul of the migration system in South Africa, Lawyers for Human Rights (LHR) have expressed their concerns over the proposed measures.

They described it as “draconian measures”.

The LHR said it had engaged with the department for decades over the laws.

“We have produced reports and made recommendations, and made these available to the department. We have also used the last resort available to us – taking gross human rights violations by the department to the courts. We have also attempted to engage with the department through the South African Human Rights Commission.

“We can say categorically that all these engagements, including judgments holding the department to account to comply with policy and the Constitution, have all fallen on deaf ears,”

The LHR said in its submissions that the “intensity” of the White Paper, and its numerous implications on the human rights and dignity of all who lived in South Africa, necessitated a meaningful and reasonable public participation process.

“We were denied this opportunity by the unreasonably short time frames.”

The LHR said the White Paper did not read coherently, nor did it provide credible sources for the statements it made or the statistics it provided.

“As a public policy document, this is unacceptable.”

“The White Paper in its current form is contemptuous of a democratic dispensation. It is our view that the proposed policy shift falls short of what is needed to manage the challenges facing South Africa, and also falls short of the constitutional principles and standards recorded throughout our jurisprudence.”

The LHR called on the department to withdraw the draft of the White Paper, to allow for the consultation needed in a participatory democracy and more thorough engagement with the issues.

Earlier, the department had said its White Paper on citizenship, immigration and refugee protection sought to establish a process for foreign nationals to obtain residency and citizenship in South Africa, as well as safeguard refugees and asylum seekers.

The LHR, in its submissions to the department, highlighted its concerns as it said the paper suggested several critical changes in the law, among them South Africa’s withdrawal from key international and regional treaties concerning refugees.

It also suggested the “review” of pathways to citizenship and the overhaul of the birth registration laws“.

The organisation shared some of the struggles by young people in the country to obtain documentation and belong in South Africa – the only home they knew.

“These changes threaten our fundamental rights as children and youth, increasing the risk of statelessness and affecting our access to education, health services and employment. We are concerned about department’s lack of consultation and consideration for the impact of these changes on children and youth,” some of the youth said.

One of the youngsters, identified only as Ali, was born in South Africa to Congolese parents who were refugees. His father later acquired permanent residence. Ali and his sister were eligible to apply for citizenship.

Their applications were first submitted via e-mail in May 2022, because the department offices refused to take physical copies. Their applications were re-submitted at the department offices two weeks later, because the head office refused to accept them via-email.

A year later, they were told that their applications had been rejected. They were not given the decision in writing

Last year, they visited the department office and were told that their applications had been approved. They received their IDs in January this year. While waiting for an ID, Ali had to drop out of university due to not having sufficient funds to pay off his student debt. He was unable to secure funding through the National Student Financial Aid Scheme because he was not a citizen or permanent residence.

He has since been documented but has lost out on many opportunities.

The LHR said there was a need for clear processes in adjudicating citizenship applications.

A similar story is that of Esther, who was also born in South Africa. Her mother has refugee status and her father has permanent residence.

Her file was joined to her mother’s refugee file, but she ended up undocumented when she was de-linked because she was over 18.

Hans was born to a Congolese mother and father. His mother died when he was young and his father abandoned him In South Africa. He does not qualify for citizenship because he was not born in South Africa and he cannot apply for asylum because he arrived in South Africa at a young age without knowing the reason the family had fled their homeland.

His only option to get documented and legal status was to apply for an exemption under the Immigration Act. This application was submitted in 2018, but no decision has been made. This leaves Hans undocumented, unable to fend for himself, and vulnerable to arrest and detention.

The LHR said Hans’s life would have been different if South Africa had a special dispensation to document unaccompanied or separated migrant children like him.

Pretoria News

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