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Advancing Refugee Protection in South Africa

Edited by Jeff Handmaker, Lee Anne de la Hunt and Jonathan Klaaren

346 pages, 16 illus., bibliog., index

ISBN  978-1-84545-109-7 $120.00/£75.00 hb Published (March 2008)

ISBN  978-1-84545-249-0 $34.95/£22.00 Pb Published (November 2010)

eISBN 978-0-85745-027-2 eBook

hb Pb
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The book is a well-researched and balanced discussion of South Africa’s attempt to address its refugee problems. All the contributors are either legal experts, general scholars or experts with extensive experience on human rights and refugee issues.”  ·  African and Asian Studies

"... a useful resource for practitioners and activists, both in South Africa and elsewhere. It represents a substantive study in an area that has been neglected, particularly in South Africa, and points to the dire need for more research and study."  ·  H-SAfrica

“This collection of essays is a significant advance in the field of refugee protection and the law in South Africa, as very little research has been done on this topic. Few authors other than those included in the collection have addressed wider refugee and migration issues in South…a very enlightening resource for both practitioners and academic researchers in South Africa and elsewhere.”  ·  African Affairs

“This book will provide important background reading for a second generation of researchers to look beyond the establishment of the asylum system to consider the extent to which, over the long term, there is substantial and contextually appropriate asylum policy in South Africa. It is equally useful for those involved in comparative studies of different asylum systems because of the detail that is provided about the internal functioning of the relevant South African government departments.”  ·  International Migration & Integration

Divided into three thematic parts to guide the reader, this important volume documents the development and implementation of refugee policy in South Africa over a 10-year period from 1996 until 2006. In doing so, it addresses issues of detention, gender, children and health as well as welfare policies for refugees. The contributions, all written by academics and practitioners of refugee protection, vividly illustrate the tangible shifts and concerns of a process that is not only aimed at establishing policies and legislation but also practices concerning refugees.

Jeff Handmaker is a lecturer in law, human rights and development at the International Institute of Social Studies of Erasmus University in The Hague and honorary research fellow at the School of Law, University of the Witwatersrand.

Lee Anne de la Hunt will spend two terms from October 2010 to March 2011 as a Visiting Fellow at the Refugee Studies Centre, Oxford Department of International Development.

Jonathan Klaaren is Professor of Law and Acting Head of the School of Law at the University of the Witwatersrand, Johannesburg.

Series: Volume 2, Human Rights in Context

LC: HV640.4.S65 A38 2008

BL: 4336.439175 v. 2 DSC

BISAC: SOC002000 SOCIAL SCIENCE/Anthropology/General; SOC007000 SOCIAL SCIENCE/Emigration & Immigration; LAW018000 LAW/Constitutional

BIC: JFFN Migration, immigration & emigration; GTF Development studies

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Table of Contents (Free download)

Introduction (Free download)

International And National Responses To The Challenges Of Mass Forced Displacement

People have been migrating in large numbers since time immemorial, for reasons of personal and family advancement, as elements in state plans to expand and develop and to avoid any number of disasters, natural and man-made. South Africa has had the full spectrum of the migration and displacement experience, moving from refugee-source to refugee-receiving country, and meeting all the complexity of mixed flows on the way. While refugee movements and situations have long attracted attention, at least in certain of their phases, migration in its 'ordinary' sense is only now beginning to feature on the international agenda, even if the principal focus is on the issues of concern to the developed world, such as irregular and clandestine migration and trafficking in people. Despite the international dimension, an international migration regime is still lacking. There is no multilateral convention and no truly international organisation with a comprehensive mandate, while state practice varies and a burgeoning individual rights dimension confronts traditional sovereign powers, actual or perceived, with distinctly uneven results.

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Regional Integration, Protection And Migration Policy Challenges In Southern Africa

Honouring South Africa's commitments to promoting the rights and prosperity of all its residents – citizens, immigrants, refugees and asylumseekers – requires a regime of laws and practices that ensures that the presence of non-nationals does not foster corruption, coercion and illegality by citizens, private security firms and state agents. Despite South Africa's commitments to ensuring that its asylum system promotes human rights, administrative rationality and the rule of law, considerable obstacles remain to achieving this end.

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Talking A New Talk

A Legislative History Of The Refugees Act 130 Of 1998

This chapter does not write the legislative history of the Refugees Act 130 of 1998 but rather a legislative history. The scope of this chapter extends only to relatively formal developments, such as the drafting of legislation and official policy documents, although we have supplemented these with other background materials as available. We argue that the legislative history of the Refugees Act demonstrates that non-state actors made a major contribution in establishing both the form and the content of legislation on refugee protection separate from migration policy in South Africa. Through this process as well as its result (the first South African Parliamentary statute), a new subject was inserted into the South African policy arena: refugee protection.

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Refugee Status Determination Procedures In South African Law

This chapter critically investigates the South African procedures for determining refugee status that were in force from 1994 until the 1 April 2000 implementation of refugee legislation, as well as the intended changes to these procedures introduced by the Refugees Act 130 of 1998. After a brief historical overview of its development, Part I sets out an understanding of how the administrative system of refugee status determination operated during the period from 1994 to 2000.1 Part II then closely examines this system – which we term the centralised bureaucratic model – and develops an argument for an alternative, decentralised model of refugee determination based on individualised refugee determination hearings. From 1996, the refugee rights community offered a version of this decentralised hearing-based model in advocating for the refugee status determination system that was eventually adopted in the Refugees Act 130 of 1998. Part III then examines the provisions of the Refugees Act relating to refugee status determination procedures, as well as the subsequent implementing regulations. It argues that, properly interpreted in terms of a decentralised hearings-based model, the Act represents an important step forward in South African refugee protection.

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Due Process In Asylum Determination In South Africa From A Practitioner's Perspective

Difficulties Encountered In The Interpretation, Application And Administration Of The Refugees Act

This chapter deals with asylum determination procedures before and after the implementation of the new South African Refugees Act. The framework for our analysis is the administrative justice jurisprudence and practice that has developed in South Africa, especially as measured against international practice. Many of the problems encountered before the Act was passed have continued well into the post-Act implementation phase, demonstrating that it is not enough to have adequate legislation in place, if there is neither the will nor the capacity to implement it correctly.

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Starting With A Clean Slate?

Efforts To Deal With Asylum Application Backlogs In South Africa

The Refugees Act 1998, with corresponding Regulations, did not come into force until early April 2000. Bringing the Act into force presented significant administrative challenges to the Department of Home Affairs (hereinafter the DHA or the Department), the government department designated to administer the refugee status determination regime in South Africa. One of the biggest challenges concerned a backlog of over 27,000 applications that were still awaiting first-instance decisions and a further 4,000 applications awaiting decisions at the appeal level. By the time of the second backlog project, this figure had risen to over 110,000 unprocessed applications. Many asylum-seekers have been waiting for years to receive a determination of their status. This wait has been made all the more frustrating by the onerous task of having to renew permits at regular intervals (as often as once a month), a situation that has also made the system vulnerable to corruption.

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Solucão Durável?

Implementing A Durable Solution For Angolan Refugees In South Africa

The debate on durable solutions for refugees has been a contentious one, generating a wide range of differing views on the value of various solutions. The search for durable solutions remains arguably the most formidable challenge in refugee protection, particularly in the case of large refugee populations from areas with long drawn-out conflicts that show little sign of abating. Historically, repatriation has been considered the most favoured solution, notably by the United Nations High Commissioner for Refugees (UNHCR), which saw the 1990s as the 'decade of repatriation'. However, efforts to realise this have had mixed success, as Allen and Morsink1 and, more recently, Black and Koser2 have shown in great detail.

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Detaining Asylum-Seekers

Perspectives On Proposed Reception Centres For Asylum-Seekers In South Africa

In contrast to most African countries, refugees and asylum-seekers in South Africa enjoy freedom of movement within the country. In many ways, the circumstances of their arrival are very different from those elsewhere in the continent. Apart from the influx of refugees from Mozambique during the civil war in that country during the 1980s, South Africa has never experienced a mass influx of refugees. Many asylum-seekers are what the UNHCR refers to as 'urban refugees': young men, predominantly from cities and towns in their countries of origin.

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Protecting The Most Vulnerable

Using The Existing Policy Framework To Strengthen Protection For Refugee Children

Globally, children are said to form the largest demographic age group amongst refugees. Despite the lack of comprehensive data, it is estimated that children represent half of the world's forcibly displaced population.1 South Africa has been fortunate in recent years not to witness the largescale refugee movements faced in many other countries on the continent. Consequently, the number of child applicants has been rather small, but not insignificant.

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Protecting The Invisible

The Status Of Women Refugees In Southern Africa

Refugee demographics show that, of the approximately 20.8 million asylum seekers, refugees and internally displaced persons (IDPs) globally, half are women and girls. This stands in stark contrast to the number of women who apply for and are granted asylum in refugee-receiving countries. South Africa is no exception; statistics from the Department of Home Affairs reveal that women regularly comprise only 20 per cent of applications for asylum,1 and according to the 1998 'Gender Policy Statement' of the Department of Justice, women constituted only 5 per cent of those who had been formally granted refugee status in South Africa.

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Realising Rights

The Development Of Health And Welfare Policies For Asylum-Seekers And Refugees In South Africa

There is currently no coherent government policy dealing with health and welfare service provision for refugees and asylum-seekers. In addition, there is no central point of contact where asylum-seekers and refugees can turn for information or for service provision. This chapter reports the findings of a UNHCR-commissioned study that begins to provide some background to address these policy and service provision gaps.

This chapter and the underlying study specifically focus on the provision of health and welfare services for refugees and asylum-seekers.

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Bibliog (Free download)

Conclusion (Free download)

End Matter (Free download)

Appendices (Free download)