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22 January 2015

ZAF105046.E

South Africa: Whether a person who was recognized as a refugee in South Africa and holds a valid Formal Recognition of Refugee Status loses refugee status upon leaving South Africa; information on the process to reacquire refugee status; information on the process for a refugee to apply for citizenship (2014-January 2015)

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

1. Losing Refugee Status

Section 5 of the Refugees Act, 1998 states the grounds for the cessation of refugee status in South Africa (South Africa 1998; ibid. 2008). Section 36 of the Act states the grounds for the withdrawal of refugee status (ibid. 2008; ibid. 1998, ibid. 2011). A copy of the Refugees Act, 1998 and its 2008 and 2011 amendments are attached to this Response (Attachments 1, 2 and 3).

The 2008 amendment to the Refugees Act, 1998 indicates that a refugee is entitled to "a travel document if he or she applies in the prescribed manner" (South Africa 2008, Sec. 27(e)). In correspondence with the Research Directorate, a representative from the Scalabrini Centre of Cape Town (SCCT), an organization that "offers development and welfare programmes to the immigrant and local communities of Cape Town," (SCCT n.d.) [1], indicated that

[a] refugee who leaves the country without the required refugee travel document would face possible withdrawal of their status from [the] SCRA [Standing Committee for Refugee Affairs]. An asylum seeker who leaves the country would also be in a similar situation. (ibid. 13 Jan. 2015)

In correspondence with the Research Directorate, a representative from the Refugee Ministries Centre (RMC), an organization that "promote[s] fair access to documentation for refugees and asylum seekers in South Africa" and monitors service delivery at Refugee Reception Offices (RMC n.d.), indicated that if a recognized refugee in South Africa leaves the country, the refugee status "remains as valid as the validity of the document [that evidences refugee status]" (RMC 13 Jan. 2015). The RMC representative also stated that "no refugee is assured of getting renewal or extension of their refugee permit whenever it expires" and noted that a recognized refugee's status in South Africa can be renewed, not renewed, or even revoked altogether "depending on the mood of the government official" who is assisting the refugee on that day (ibid.). The RMC representative further indicated that if a person refuses, or cannot afford, to pay a bribe, the government official can refuse to assist the person until their document expires thus exposing that person to deportation (ibid.). The US Department of State's Country Reports on Human Rights Practices for 2013 for South Africa indicates that "[a]n inability to process refugee document renewals on appointment dates resulted in expired documents for many refugees who were then subject to fines, detention, deportation, and forced removal" (US 27 Feb. 2014, 19). Sources similarly indicate that, according to NGOs and asylum applicants, immigration officials ask for bribes from those seeking permits to remain in the country (GroundUp 22 Dec. 2014; US 27 Feb. 2014, 20). The RMC representative also indicated that, "[a]lternatively, refugees can be given a minimal extension period of as low as one month and [be] informed that their file is [being] sent to the [SCRA] for review" and that "this can go on for years" (13 Jan. 2015).

2. Reacquisition of Refugee Status in South Africa

Section 4 of the Refugees Act, 1998 and its 2008 and 2011 amendments state the grounds for the exclusion of refugee status in South Africa (South Africa 1998; ibid. 2008; ibid. 2011).

The SCCT representative indicated that a person who lost their refugee status for leaving the country without a valid travel document "should be able to lodge a second claim, but in practice this is difficult" (13 Jan. 2015). According to the RMC representative, it is "almost impossible" to re-obtain refugee status (RMC 13 Jan. 2015), explaining that "[e]ven in instances where people have tried to go back to their countries of origin and still face threats to their lives and return to [South Africa], they never get refugee status again" (ibid.). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

According to the RMC representative, the process to reapply for refugee status is the same as applying for refugee status for the first time; the case must be presented before immigration authorities and the applicant must go through the entire process again (13 Jan. 2015). The website of the Department of Home Affairs of South Africa indicates the "general procedures" for applying for refugee status in South Africa (South Africa n.d.). A copy of these procedures is attached to this Response (Attachment 4).

In correspondence with the Research Directorate, a senior researcher at the African Centre for Migration & Society at the University of the Witwatersrand in Johannesburg, who is a legal researcher in the areas of asylum and refugee law and legal detention, indicated in regards to Section 5(1)(e) of the Act, that refugee status is reviewed by the Standing Committee for Refugee Affairs (SCRA) every two to four years as part of renewing the refugee ID card (Senior Researcher 16 Jan. 2015). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

Section 22 of the 2008 amendment to the Refugees Act, 1998 indicates the following regarding an asylum seeker permit:

(1) The Refugee Status Determination Officer must, pending the outcome of an application in terms of section 21(1), refer the applicant to the officers contemplated in section 8(3) to be issued with an asylum seeker permit in the prescribed form allowing the applicant to sojourn in the Republic temporarily, subject to any conditions determined and endorsed by the Director-General, which are not in conflict with the Constitution or international law. (South Africa 2008)

Section 22 of the Refugees Act, 1998 also states the following:

(5) A permit issued to any person in terms of subsection (1) lapses if the holder departs from the Republic without the consent of the Minister. (ibid. 1998)

3. Permanent Residence and Citizenship for Recognized Refugees
3.1 Permanent Residence

Section 27 of the Refugees Act, 1998 as amended in 2011, indicates that a person can apply for permanent residency in South Africa five years after he or she is granted refugee status, as long as they have had "continuous residence" in South Africa (South Africa 2011). The website of the Department of Home Affairs indicates that the five year period does not include the time the individual spent as an asylum seeker (ibid. n.d.). The website also indicates that an applicant must go to the initial refugee reception office to apply for a "Certification" (ibid.). The same source states that the SCRA reviews the applications and grants the "Certifications" based on whether or not the applicant "will remain a refugee indefinitely" (ibid.). Once the person has a "Certification" then he or she will be able to apply for permanent residency (ibid).

The Senior Researcher noted that

[t]hese certificates can take several months or even years to obtain, and the [SCRA] has at periods not issued these certifications for lack of capacity. It has also taken varying interpretations of 'indefinitely' and the current committee members have imposed a much more rigorous standard. Somalis, for example, have been unable to get certification of indefinite refugee status, even as the committee acknowledges that they remain refugees. (16 Jan. 2015)

The SCCT representative similarly indicated that, in practice,

[the] SCRA is unable to manage this process effectively and it is not uncommon for refugees to apply for certification and never receive a decision, positive or negative. Recently, a number of Somali refugees received the same rejection notice in relation to their [permanent residency] applications; the document did not take into account the particular details of each refugee's claim. (13 Jan. 2015)

Likewise, the RMC representative stated that the South African government "makes it difficult for many refugees to meet this requirement [the certification]" and those who do can wait for up to 20 years without hearing back from the SCRA (RMC 13 Jan. 2015).

The RMC representative also noted that, on World Refugee Day in 2013, the South African government indicated that it does not "want to treat the refugee regime as a permanent solution for people to live in [South Africa] permanently" (ibid.). In 2013, allAfrica, a web news portal on African issues, quoted the Minister of the Department of Home Affairs as saying that "asylum is not intended to be permanent" (20 June 2013). The RMC representative concluded by saying that "it is very difficult for refugees to get granted permanent residence in [South Africa]" (13 Jan. 2015).

3.2 Citizenship

According to the SCCT representative, a refugee who becomes a permanent resident "can apply to become a citizen after being a permanent resident for five years" (13 Jan. 2015). The Senior Researcher indicated that an individual who is a recognized refugee can apply for permanent residence after five years and "may eventually apply for citizenship" (16 Jan. 2015). Further information about the requirements and procedures for citizenship could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

For additional information on the treatment of refugees and asylum seekers in South Africa, see Response to Information Request ZAF105045.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

Note

[1] The SCCT was founded by the Scalabrini Fathers, an order founded in 1887 by the Bishop of Piacenza, John Baptist Scalabrini (SCCT n.d.). The Scalabrini Congregation run centres in 24 nations that "study the movement of populations around the world, publish peer reviewed journals and magazines and conduct radio and television programs for migrants" (ibid.).

References

AllAfrica. 20 June 2013. "South Africa: Home Affairs Minister Naledi Pandor Commemorates World Refugee Day." <http://allafrica.com/stories/201306201366.html> [Accessed 14 Jan. 2015]

GroundUp. 22 December 2014. Joyce Xi. "South Africa: Need that Bullet Removed from Your Arm? Then Show Us Your Papers." <http://allafrica.com/stories/201412221556.html> [Accessed 31 Dec. 2014]

Refugee Ministries Centre (RMC). 13 January 2015. Correspondence from a representative to the Research Directorate.

_____. N.d. "About Us." <http://www.refugeeministriescentre.org.za/home.html> [Accessed 14 Jan. 2015]

Scalabrini Centre of Cape Town (SCCT). 13 January 2015. Correspondence from a representative to the Research Directorate.

_____. N.d. "Who We Are." <http://www.scalabrini.org.za/project/who-we-are/> [Accessed 14 Jan. 2015]

Senior Researcher, African Centre for Migration and Society, University of Witwatersrand, Johannesburg. 16 January 2015. Correspondence with the Research Directorate.

South Africa. 2011. Refugees Amendment Act, 2011. <http://www.gov.za/sites/www.gov.za/files/a12_2011_0.pdf> [Accessed 12 Jan. 2015]

_____. 2008. Refugees Amendment Act, 2008. <http://www.saflii.org/za/legis/num_act/raa2008179.pdf> [Accessed 21 Jan. 2015]

_____. 1998. Refugees Act, 1998. <http://www.gov.za/sites/www.gov.za/files/a130-98_0.pdf> [Accessed 12 Jan. 2015]

_____. N.d. Department of Home Affairs. "Refugee Status and Asylum." <http://www.dha.gov.za/index.php/refugee-status-asylum> [Accessed 31 Dec. 2014]

United States (US). 27 February 2014. Department of State. "South Africa." Country Reports on Human Rights Practices for 2013. <http://www.state.gov/documents/organization/220371.pdf> [Accessed 30 Dec. 2014]

Additional Sources Consulted

Oral sources: Representatives from the following organizations were unable to provide information within the time constraints of this Response: International Detention Coalition; Lawyers for Human Rights; Messina Legal Advice Office; ProBono.Org.

Representatives from the following organizations were unable to provide information for this Response: Adonis Musati Project; Black Sash; South Africa – Embassy in Ottawa, Department of Home Affairs; University of Stellenbosch, Stellenbosch, South Africa – Faculty of Law.

Attempts to contact representatives from the following organizations were unsuccessful: Centre for Conflict Resolution; Consortium for Refugees and Migrants in South Africa; Legal Resources Centre; London School of Economics; Refugee Children's Project; an immigration lawyer based in Western Cape.

Internet sites, including: Amnesty International; Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD); ecoi.net; Factiva; Human Rights Watch; United Kingdom – Home Office; United Nations – Refworld, ReliefWeb; United States – USAID.

Attachments

1. South Africa. 1998. Refugees Act, 1998. <http://www.gov.za/sites/www.gov.za/files/a130-98_0.pdf> [Accessed 12 Jan. 2015]

2. South Africa. 2008. Refugees Amendment Act, 2008. <http://www.gov.za/sites/www.gov.za/files/31643_1274.pdf> [Accessed 12 Jan. 2015]

3. South Africa. 2011. Refugees Amendment Act, 2011. <http://www.gov.za/sites/www.gov.za/files/a12_2011_0.pdf> [Accessed 12 Jan. 2015]

4. South Africa. N.d. Department of Home Affairs. "Refugee Status and Asylum." <http://www.dha.gov.za/index.php/refugee-status-asylum> [Accessed 31 Dec. 2014]