Local integration in south african context

UNIVERSITY OF CAPE TOWN

Refugee Rights Project

UNHCR’s 2007 Annual Consultations with NGOs

LOCAL INTEGRATION: LESSONS LEARNT AND THE WAY FORWARD

Written by

Fatima Khan

Director

[e-mail]

Paper drafted for discussion on

Local integration: The preferred durable solution

Geneva, Switzerland

26^th September 2007


University of Cape Town

LAW CLINIC

Wilfred and Jules Kramer Law School

Middle Campus

Private Bag

RONDEBOSCH 7701


LOCAL INTEGRATION OF URBAN REFUGEES IN SOUTH AFRICA
Unlike in many parts of the continent, South Africa does not have an encampment policy for refugees. Refugees live in different parts of the country mainly in the main urban centres among the local communities. The majority of refugees in South Africa are from other African countries and it is clear that a large proportion of these refugees are destined to remain in South Africa for a very long period of time, due to the protracted nature of the conflicts which have forced them to leave their countries of origin. Voluntary Repatriation even though it’s the favoured durable solution, is therefore rarely possible. The resettlement programme in South Africa on the other hand is a very small one - for a number of reasons (not to be discussed here), however one of the criteria for resettlement “is failure to integrate locally”. This immediately implies that their must have been prospects for local integration in the first place and more importantly that efforts had to be made for local integration. In my opinion as a practising refugee lawyer in South Africa there are definitely prospects – in fact everything we do as legal implementing partners for UNHCR is informed by this approach. Every act we perform is meant to facilitate the integration of refugees into the South African community.
What then do we mean by local integration?
My definition of local integration is borne out of experience in a particular situation, the South African situation. A country where there is no encampment, no self-settlement and no local settlements. Local integration in my opinion is a course of action which allows the refugee or the asylum seeker to lead a meaningful existence within the host state; it therefore must necessarily be a process which allows for the development of the human potential. This does not necessarily mean permanent residence or citizenship.
UNHCR, refugee rights advocates like us, government and the refugees themselves, therefore need to ask the question – What is it that a refugee needs in an urban setting like South Africa to be able to lead a meaningful existence? Two things come to mind - firstly, the need to create an enabling environment and secondly, the need to create a welcoming society. Both of these consist of various elements and to accomplish this will require a determined action on a number of fronts.
As a lawyer I ask myself the question – How can I use the law to assist the refugee to lead a meaningful existence in South Africa? How can I use the law to assist the refugee develop his or her full human potential? Today I am going to outline what we as legal implementing partners are doing, how we use the law to facilitate local integration and what obstacles we face and what our successes have been.
What are the elements necessary to create an enabling environment?:

1. Legislation:

For the refugee to lead a meaningful existence in the host country certain essentials need to be in place, the most important of which would be specific refugee legislation. This legislation must be informed by a culture of human rights and must meet the standard of International Human Rights law.

For a successful local integration programme therefore refugee rights advocates, Ngo’s, UNHCR must engage government from the outset. This is precisely what happened in South Africa – civil society played a huge role in guaranteeing a progressive legislation. With the enactment of its Constitution in 1996, South Africa set a very high benchmark for promoting human rights and human dignity through state action. That standard is reflected in the Refugees Act of 1998 which was implemented in 2000. It is clear from this Act that the new South African government was intent on establishing a law which treated refugees as human beings with rights rather than simply housing them for protection. For refugees therefore South Africa has legislated and done so in a very progressive manner.

In this regard our work is ongoing, not only did we recently make submissions regarding amendments to the Refugees Act but we also actively seek out legislation which omits to refer specifically to this vulnerable class of people e.g. the SA Child Care Act is silent on refugee children even though South Africa has ratified the Convention on the International Rights of the Child. We will continue to engage the relevant South African government department to treat refugee children in need of care same as they would any SA child in need of care.

It is important that we have good law but we need at the same time to make sure that we disseminate this law. It should be introduced to institutions of higher learning – Currently only two out of 22 universities are teaching refugee law. I am continuously told by the Dean of my Law faculty to get someone to fund a chair --- We are called on by many schools to introduce the concept of refugee hood to school children – Much greater advocacy is required to introduce it into our educational curricula.
2. Ensuring the effective implementation of the legislation:

The Refugees Act defines the refugee, allows for a procedure for application for status determination and sets out the accompanying rights for refugees.
Our daily interaction with refugees has highlighted the fact that progressive legislation on its own is obviously not enough. An asylum seekers has to firstly gain access to this system – This is a major obstacle at the moment The issuing body in South Africa is the Department of Home Affairs and our major task is to ensure that they firstly, grant access, secondly, issue proper documentation and thirdly do a proper status determination. Needless to say this requires an intense ongoing interaction with this government department but highly necessary because without documentation to establish their legal status local integration will not be possible at all. South Africa is an extremely identity driven society and it is not possible to access any service in South Africa without an identity document – be it accessing education, health care, opening a bank account or even buying furniture
Not only do we have to ensure that the refugees are properly documented we also have to ensure that the status determinations which are currently of a very poor standard are properly appealed, hence our numerous representations before the Refugee Appeal Board and even a review of these Appeal Board decisions at times. Reviews at the High Court entail ensuring that the definition of refugee is properly and not too restrictively interpreted.

In terms of engaging with the Department of Home Affairs various strategies are employed to make sure that the rights refugees are afforded in terms of the Refugees Act are not violated, whether it’s just a matter of writing a letter of demand to the Department or undertaking strategic or impact legislation. One of the major successes in this regard has been the granting of the right to work and study for asylum seekers. As soon as asylum seekers are in possession of even their temporary asylum status they are able to seek work and study.

Promoting Refugee Rights
Those Asylum Seekers lucky enough to acquire an asylum permit (which is an A4 sheet of paper - compared to a South African ID book) face further difficulties. The documents issued to an asylum seeker and to refugees are markedly different from documents issued to South Africans or permanent residents. They are also unknown amongst private and public institutions, including prospective employers. They are thus not enabling documents and despite the fact that various rights are attached to such a documents, refugees struggle to access these rights. The South African government has done very little to educate South Africans about refugee documents and as a result refugees are severely prejudiced. Refugees thus struggle to access the most basic services such as health care, the placement of unaccompanied minors, accessing education or finding employment all factors necessary for the successful integration of refugees.
For example, the South African Schools Act¹ is quite clear - that public schools must admit learners and serve their educational requirement without unfairly discriminating in any way. The Refugees Act is also quite clear - refugee children are entitled to the same primary education as South African children. Despite these rights, refugees face huge obstacles accessing education for their children. They are often requested to pay school fees (where they would otherwise qualify for school fees exemptions).
Similar patterns of discrimination are evident in accessing healthcare despite the fact that the South African constitution is quite clear – no one should be refused emergency or life saving medical treatment regardless of nationality, lack of documentation or residency status. . Furthermore, prospective employers do not recognised these documents and fail to recognise it as a legitimate document allowing the bearer the right to seek employment.
Many other examples can be cited supporting the fact that many refugees and asylum seekers are unable to access basic services and equal treatment because frontline service providers are either unable to recognise these documents are unaware of the rights attached to same
Issues addressed by means of Legal Counselling:

These are the types of issues that are being addressed by Non – government Organisation’s (NGO’s) like us, and not government. In this regard we can cite many successes. Our strategies differ depending on our capacity and support from UNHCR and donors– We may assist refugees on a one-on-one basis – this is certainly how we have done it with schools and over a period of time we can almost safely say that in Cape Town most of the schools are aware of refugee rights regarding education – That refugees can access education and schools are aware that they may qualify for the school fee waiver as well - That education is definitely compulsory for all children under the age of fifteen or up to grade 9. At the same time refugee parents are informed that it is an offence not to send such a child to school. A simple letter of information to the school setting out the legal authority has ensured education for the refugee child.

Many employers and prospective employers are also engaged on a one-on-one basis be it to inform them that refugees and asylum seekers have the right to work (helping them understand the document or the rights associated with the document – or that the same labour laws apply to refugees and to SA. Similar approaches for healthcare services have been adopted.
Safety and security issues; – we often find that the local police don’t recognise these documents resulting in numerous unjustified arrests and rights abuses. Refugees are particularly vulnerable and are forced to deal with unscrupulous employers and trigger happy police all the time. We tackle unlawful arrests by instituting delictual claims against the minister of safety and security and at the same time ensuring that the perpetrators are prosecuted.

Currently refugees and asylum seekers are prohibited from applying for drivers licence and registering their vehicle for example, this matter that we are currently ……….

Parallel hereto, we address these concerns through macro level lobbying and engaging directly with government service providers at every available public forum.
Empowering refugees:

We have recognised that our reach is not far enough if we simply engage the individual client that comes to our office and we have embarked on other strategies to reach and assist a greater number of refugees. We have created information booklets and gone into refugee communities to disseminate this information and educate refugees about their rights. This year saw us introducing a series of rights-based workshops for refugee community leaders. A selection of rights was discussed by experts eg the right to safety and security, right to health care etc – exactly what to do and who to approach should the right be violated. How to engage the relevant governments departments ( SAP) etc . The right to work – what to do if you are unfairly discriminated against etc This proved to be a huge success – with countless individual success stories – It has been our experience that when refugees understand the rights that they have been afforded in terms of the law they are able to live more meaningful lives –This series of workshops was done in partnership with significant role players – eg the Human rights Commission, the Office of the Public Protector, the Independents Complaint Directorate, the Rental and Housing tribunal, the Department of Labour amongst others - The effects of these workshops have been far-reaching – not only did we place refugee issues on the agenda of these Key public bodies, we also assisted and empowered refugee communities by training these refugee leaders . A lot of the legal counselling done by us can now be done by these trained refugees themselves. Unfortunately for us funders see this as second-tier work and despite its obvious success funding has stopped. – All this for this $5000.00. – full report on Asylum Access website.

Creating a welcoming society ( An introduction)

From the various types of legal matters that have come to our attention - we have realised the importance of creating a welcoming society. It has been our experience then when the South African community understood the reasons why refugees were forced to flee and why refugee protection is a moral and legal obligation, the South African community have shown a significant change in attitude – We do this by having information campaigns – within the communities where refugees find themselves. –

The attitude change in most instances has been remarkable = literally before the workshop all foreigners were Nigerian and drug dealers –

We now know that information is not enough. We also need to create empathy - this can be facilitated by having refugees to tell their stories.

Now I am stepping out of my area of expertise –which is how to use the law to facilitate Local integration. Of course we engage many NGO’s, not all legal – and just to name a few ways in which they are facilitating Local Integration. Language training, skills development training, trauma counselling etc /

Another way of creating a welcoming society is to ensure balanced public information on refugee issues. To achieve this we engage the media - any available public forum This is also one way of tackling xenophobia -

In Conclusion therefore – Prospects for local integration in South Africa are excellent however as stated earlier a determined action on a number of fronts are necessary for this preferred durable solution to be effectively implemented.

For Local Integration to be a successful durable approach UNHCR must forge strong partnerships and capacitate their partners at the same time.

1 The South African Schools Act