No Refuge: Flawed Status Determination and the Failures of South Africa's Refugee System to Provide Protection

Abstract

Because South Africas immigration framework provides little opportunity for legal economic migration from Africa economic migrants have turned to the countrys asylum system in overwhelming numbers. As demand on the system exceeds its capacity to function the gaps in immigration policy have hindered the effective functioning of the refugee system. As a result the protective nature of the refugee system has been transformed into one of control - motivated by the need to reduce the numbers of economic migrants. In response to the tremendous demand on the system government efforts have focused on efficiency. Because of these efforts individuals are being routinely denied refugee status in accordance with refugee and administrative law without proper consideration of their asylum claims.This article describes the findings of a review of 324 negative status determination decisions from South Africas refugee reception offices. The review uncovered serious flaws in the status determination process. Decisions were characterized by errors of law an absence of reasons a lack of individualized decision making and a general failure to apply the mind or to use sound reasoning. Unthinking and non-contextualized cutting and pasting both from other decisions and from internet sources was also rampant and many claimants received identical decisions regardless of the details of their claims. The review demonstrates that South Africas refugee system is failing to fulfill its core function - identifying those in need of protection as refugees. The current system influenced by larger immigration policy is giving rise to grave human rights violations as the status determination process fails to uphold the non-refoulement principle.