This Article is written by Lindiwe Nchonyane, a Second Year Law Student of University of Johannesburg

Introduction

We live in an era of profound change in the international order with consequences that are perhaps felt most acutely in our immigration laws, border security measures, and capacity for offering protection to refugees. Calls for more reliable border safeguards have collided with anti-immigrant and anti-foreigner movements demanding more responsible and compassionate governance. The persistence of fear and bad political choices has led repeatedly to policies that are disruptive and counterproductive. It is time to realign the three policy areas – immigration laws, border security, and refugee protections with the realities of the world in which we live and to advance the humanitarian and strategic interests that South Africa has long sought. Part I of this paper revisits longstanding principles that should shape immigration, refugee protection, and border security policies. In Part II, we review the evolution of border security measures in South Africa and highlight those that have pressured the traditional human rights and humanitarian standards that inform border management. In Part III, we target the inattention to immigration reform and show how shortcomings in immigration law both mirror and exacerbate longstanding failings in the refugee protection system. Part IV takes the challenging step of identifying priority reforms by describing some key features of immigration, refugee protection, and border security policies that should guide reform to these three areas.

Historic Context of Immigration Laws and Policies

South Africa is an intricate country in terms of immigrants due to its background of colonialism and apartheid as well as post-apartheid changes. During colonialism, the policies of immigration were created mainly to fulfil the economic needs and to calm rebellious sentiments. Thus, after the 1948, the apartheid regime began to introduce laws that regulated the mobility and spatial distribution of non-White people within the region thus immigration became a precise instrument of the apartheid regime used to consolidate the apartheid social order. The Immigration Act of 2002 and the Apartheid Laws, put provisions that restricted immigration to those who were considered unwanted/undesirable underneath the pretext of racism, which only dramatized ethnic and racial prejudices.[1]

After the apartheid ended in 1994, the immigration policies in South Africa started to have the respect of human rights and justice. To this end, the new democratic government was aware of the inherent need for a liberal policy as contained in the Immigration Act of 2002 and the Refugees Act of 1998.[2] These laws concerned both refugee and asylum seekers recognition of their rights as well as proper immigration policy that will follow the democracy of the country.[3] Among others, the Refugees Act introduced a legal framework by which refugees should be protected in South Africa and in compliance with the 1951 Refugee Convention and the 1967 Protocol which covers the most important aspects of refugee’s lives.[4]

However, a major challenge has been witnessed on the enforcement of these laws. The legal rights set have frequently been challenged by bureaucratic procedures, scarce resources, and people’s attitudes to migrants. The xenophobia increase strengthened by economic challenges have resulted in instabilities forcing many migrating, relocating families and refugees a hostile environment to which the country has little control, making it hard to meet set obligation. The current efforts and challenges that are related to economic requirements, human rights, and security interests to some extent prove the issue of South African immigration policy.

Part I: Longstanding Principles for Immigration, Refugee Protection and Border Security Policies.

The chance in the law ordering and regulating the immigration, refugee protection and border security policies is based on key principles which supports human rights, social inclusion and national security status. In a country such as South Africa with a diverse background of migration, these principles can be so relevant. They have to offer input into the development and operation of policies that are both efficient and fair as well as compassionate.

1. Human Rights and Dignity

It is important that at the heart of South Africa’s immigration and border management policies, there should be respect of human rights and recognition of the inherent worth of the human person. This principle also responds to the South African Constitution which grants every person rights, take for instance section 9 of the Constitution,[5] it is promoting inclusion and making everyone feel safe. It is crucial that principles of human rights in immigration and border security should be upheld for the needs of migrants and refugees to be meet and for all to live in a country we all envision of equal justice.

Measures regarding migration must be formulated in a way that excludes possible violations against migrants like unlawful imprisonment, abolition of family integrity and physical abuse. For example, Minister of Home Affairs v Rahim and others case law where there was unlawful detention and this was found only after they appealed.[6] There should be administrative measures for addressing violations of human rights. By valuing the rights of the fellow persons, South Africa has a potentiality to make the setting correspond to the undertaken scenario of democracy and justice.

2. Protection and Assistance for Refugees

South Africa has long been a destination country for immigrants who are being persecuted, in conflict, and violence areas. The principle of protection for refugees and asylum seekers is protected both by international and national laws,[7] and these policies includes also Refugees Act of 1998 which provide for the reception of asylum seekers and regulates application for and recognition of refugee status.[8] Policies should guarantee that those who are escaping danger can have access to reasonable, expeditious procedures for consideration of their asylum claims, representation and avoidance of unreasonable delay.

However, emphasis should be on identification of needs in service delivery such as health, schooling and rehabilitative programs. Thus, it is not only the fundamental need of rescuing the refugees but also works towards rehabilitating them and making them to be productive in to the society.

3.Inclusivity and Integration

Social inclusion is a social policy directive that seeks to promote cohesion. Therefore, it fair to say that South Africa’s diverse population could well stand to gain from the presence of migrants and refugees, as long as the systems are in place which will allow for their integration into society. This principle justifies community engagement activities to fight prejudice by the local people and the newcomers.

The programmes for integration should therefore address the language barrier, the cultural characteristics and social security in terms of employment. If the challenges of integration are to be worked on in the South African context then the skills, talents and abilities of migrants and refugees can be tapping in too, thus improving the social transformation of the country’s social structure.

4.Collaboration and Regional Cooperation

There may be possibilities of migration internationally,[9] therefore cooperation between neighbouring states is appropriate. There must be the provision of policies that demonstrate an interest in the cooperation of border regions against cross-border migration issues. This consists in collaboration in the fields of practice, establishing mutual coordination in immigration services as well as tackling common concerns like human trafficking and smuggling.

Such cooperation can be even more strengthened by the regional cooperation and bilateral/multilateral relations in order to promote protection of rights of refugees and migrants as well as simultaneously establish the framework for the border protection at the same time. If the neighbouring countries pull efforts together, they will be in a position to come up with a comprehensive regime on the migration that will change not only the lives of the host countries but also the lives of the asylum seekers.

5. Balancing Security and Humanitarian Considerations

Although the threat of terrorism affects any country,[10] the protection of national security should not be done on the cost of human rights of refugees and immigrants. The circumstances show that the policies should have sufficient measures for the public safety and sufficient regard for the migrants and refugees’ rights at the same time.

A good border security strategy should therefore aim at preventing the prohibited activities for instance episodes like trafficking and smuggling, thus should not use undue force or otherwise punish vulnerable people. This appears to be a logical approach of developing what can be considered a balance security framework for South Africa that will not compromise its humanitarian positions.

Part II: Evolution of Border Security Measure in South Africa

Over the years, South Africa has aimed to enhance the measures in place for securing its borders mostly through the creation of the Border Management Authority (BMA) in the year 2020.[11] This initiative is to ensure effective cooperation of all the relevant government departments in border management such as Department of Home Affair, police, and defence department. The BMA in question might be seen as a manifestation of a rather profound tendency in relation to border security, which is moving towards the integrated and strategic model.

Patrols

The frontier of this nation is protected by the South African National Defence Force (SANDF).[12] This strategy will also seek to address the issue of cross-border criminal activities with an overall progress on security. However, while such measures would increase the safety, they are a source of human rights violations. Some of the migrants that have sought asylum have been subjected to various atrocities at the hands of different security forces across Africa,[13] which raises concern on a worrying trend that has blinked the humanitarian faces of migration control.

Human Rights Challenges

Tensions between national security concerns and migrant’s rights have been provoked by demand in border security.[14] Government’s put in place measure that border control strictness compromises traditional humanitarianism that has been the core principle of the South African border control in the past. This concern has led to tension between security considerations and humanitarian protection in asylum seeking and refugees’ situations.

Moreover, the crazed hatred towards the foreign individuals in some members of the population of the Republic of South Africa add another layer to the problem. Prejudice against immigration plays a significant role in the social policies and as a result, discrimination of minorities is strengthened. This remains perhaps one of the most sensitive dynamisms that presents acute difficulty on how the government is to guarantee human rights while implementing security measures.

Community Engagement Initiatives

Considering the role of community acceptance for the strategies and migrants, in South Africa there special community engagement programs which were designed to promote the understanding between the local population and migrants.[15] The purpose of these programs is to raise tolerance of population and combat xenophobia by revealing the role of migrants in economic and social aspects.

However, such programs differ in their impact and the mentioned problems (e.g. Xenophobia) remain topical across the communities around the world. A key reason is that to eliminate these social dynamics is important to foster a more representative setting while guaranteeing that borders security programs do not impact negatively on vulnerable groups.

Part III: Inattention to Immigration Reform

Nevertheless, a number of problems exist in the current South African immigration system, which even has failed to meet the standards of the frameworks established by two significant laws: the Immigration Act of 2002 and the Refugees Act of 1998. Failure to address detailed immigration reform has worsened other incidences within the immigration system especially on refugee laws.

Bureaucratic Inefficiencies

Bureaucracy seems to be one of the major issues affecting implementation of immigration system in South Africa.[16] The applicants in asylum immigration stay for a long time without being processed, which makes them stay in a place legally for a long time. This inefficiency also has an impact not only on the participants but on the Department of Home Affairs as well causes extra pressure on the available resources.

Such slow processing times can be blamed on lack of trained staff and poor physical infrastructure. Therefore, many asylum seekers live in a kind of no man’s land and are easy targets for violence and other abuses. As a result of this, key safeguards afforded by the Refugees Act are compromised by lack of efficiency in the asylum process.

Economic Impacts

These are the weaknesses of immigration law, economic also has an impact. There is the employment of labour migrants throughout the South African economy in the agricultural, construction and services sectors.[17] Yet, restrictive immigration policies and bureaucratic hurdles taste the mobility of higher skilled people to the country. This not only slows development of the South African economy but also denies it the ability to benefit from the input it receives in the form of migration from other countries.

Part IV: Identifying Priority Reforms

To overcome this challenge, South Africa needs to undertake broad reforms of comprehensive character targeting the interrelated issues of immigration laws, border security, and refugees’ rights. Several key features should guide these reforms:

1. Streamlining the Asylum Process

One of the most important aspects of the reformation of the immigration system is the simplification of the asylum application. This includes decreasing procedures time, hiring more staffs and offering training to staffs dealing with asylum decisions. Increasing efficiency can play a pivotal role in maintaining South Africa’s obligations to protection of refugees while at the same time guaranteeing that people will receive their decisions in due course and in fair manner.

2. Enhancing Community Integration Programs

Proper developmental of effective community integration models is quite crucial in every society as it determines the level of the society’s acceptation of immigrants or other migrants. More specifically, these programs should aim at educational, cultural and economic encounters between migrants and local population. Therefore, there is need to reduce xenophobia in South Africa.

3. Strengthening Legal Protections for Refugees

The South African government must ensure refugees and asylum seekers rights by improving legislation and making sure that no person is forced to be returned to his or her country without having safety, where they will face persecution when they get to their country. This includes not only the shortfall of the present legal provision but also the legal aid to the asylum seekers.

4. Addressing Economic Contributions of Migrants

Efficient assessment of migrant’s value in the economy is important in formulating immigration polity affirmation. It therefore would be useful for South Africa to consider the possibilities for legalizing the status of the undocumented migrants and opening up the avenues in which the skilled employees could find a place in the market Nation. This will not only enhance of the economy but also help to enhance the living standard of the more vulnerable.

Conclusion

A South African approach to immigration and refugee laws and border security requires the coordination of government, opposition, civil society, and refugees in a way that recognizes the challenges of migration in today’s world. If South Africa rediscovers the key precepts, correct bureaucratic flaws, and advance priorities’ reform, it will be possible to contribute to policy compliance with humanitarian goals and guarantee the country’s security.

The issues arising from migration are not hard to overcome, but it will only take willingness to embrace causes of refugees, experiencing humane principles, and acceptance of the role played by refugees within our society. At this crossroads, South Africa has the chance to set examples of humane and successful policies on immigration and borders that will embody the spirit of a liberal and multicultural democracy.

References:

1. Bastian Herre, Veronika Samborska, Hannah Ritchie and Max Roser ‘Terrorism’ (2023) OurWorldinData https://ourworldindata.org/terrorism accessed 20 October 2023.

2. Border Management Authority Act 2 of 2020.

3. Guy Martin ‘Feature: Challenges and successes define SANDF border operations’ (2018) DefenceWeb https://www.defenceweb.co.za/security/border-security/feature-challenges-and-successes-define-sandf-border-operations/ accessed 20 October 2024.

4. Immigration Act 13 of 2002.

5. International Organisation for Migration ‘The Well-being of Economic Migrants in South Africa; Health, Gender and Development’ (2013) International Organisation for Migration https://www.iom.int/sites/g/files/tmzbdl486/files/migrated_files/What-We-Do/wmr2013/en/Working-Paper_SouthAfrica.pdf accessed 20 October 2024.

6. Lucas Guttentag ‘Reflection on Bureaucratic Barriers to Immigration Reform’ (2019) The Regulatory view https://scholarship.law.upenn.edu/regreview-opinion/468/ accessed 20 October 2024.

7. Minister of Home Affairs v Rahim and Others (CCT124/15) [2016] ZACC 3; 2016 (3) SA 218 (CC); 2016 (6) BCLR 780 (CC) (18 February 2016).

8. Refugee Act 130 of 1998.

9. The Constitution of the Republic of South Africa, 1996.

10. The National Intelligence Council ‘The Future of Migration’ (2021) https://www.dni.gov/files/images/globalTrends/GT2040/NIC-2021-02486--Future-of-Migration--Unsourced--14May21.pdf accessed 20 October 2024.

11. UNHCR ‘The 1951 Convention relating to the status of refugees and its 1967 Protocol’ (2011) UNHCR https://www.unhcr.org/sites/default/files/legacy-pdf/4ec262df9.pdf accessed 19 October 2024.

12. UNHCR ‘Protecting Refugee through International Legal Instruments and Domestic asylum Laws’ (2024) https://dataviz.unhcr.org/products/gotm/2024-07-12/refugee-treaty-and-legislation-dashboard.html accessed 20 October 2024.

13. UN News ‘Refugees, migrants face violence, abuse and death on routes across Africa, new data shows’ (2024) https://news.un.org/en/story/2024/07/1151796 accessed 20 October 2024.

14. Vhumbunu, C.H. (2024). Peace-building Processes to Prevent and Manage Xenophobia in South Africa. In: Kiyala, J.C.K., Chivasa, N. (eds) Climate Change and Socio-political Violence in Sub-Saharan Africa in the Anthropocene. The Anthropocene: Politik—Economics—Society—Science, vol 37. Springer, Cham. https://doi.org/10.1007/978-3-031-48375-2_26 p.g 645-665 accessed 20 October 2024.

[1] Immigration Act 13 of 2002.

[2] Refugee Act 130 of 1998.

[3] See n2, s 27A.

[4] UNHCR ‘The 1951 Convention relating to the status of refugees and its 1967 Protocol’ (2011) UNHCR https://www.unhcr.org/sites/default/files/legacy-pdf/4ec262df9.pdf accessed 19 October 2024.

[5] The Constitution of the Republic of South Africa, 1996.

[6] Minister of Home Affairs v Rahim and Others [2016] ZACC 3.

[7] UNHCR ‘Protecting Refugee through International Legal Instruments and Domestic asylum Laws’(2024)https://dataviz.unhcr.org/products/gotm/2024-07-12/refugee-treaty-and-legislation-dashboard.html accessed 20 October 2024.

[8] See n2, https://www.gov.za/documents/refugees-act accessed 19 October 2024.

[9] The National Intelligence Council ‘The Future of Migration’ (2021) https://www.dni.gov/files/images/globalTrends/GT2040/NIC-2021-02486--Future-of-Migration--Unsourced--14May21.pdf accessed 20 October 2024.

[10] Bastian Herre, Veronika Samborska, Hannah Ritchie and Max Roser ‘Terrorism’ (2023) OurWorldinData https://ourworldindata.org/terrorism accessed 20 October 2023.

[11] Border Management Authority Act 2 of 2020.

[12] Guy Martin ‘Feature: Challenges and successes define SANDF border operations’ (2018) DefenceWeb https://www.defenceweb.co.za/security/border-security/feature-challenges-and-successes-define-sandf-border-operations/ accessed 20 October 2024.

[13] UN News ‘Refugees, migrants face violence, abuse and death on routes across Africa, new data shows’ (2024) https://news.un.org/en/story/2024/07/1151796 accessed 20 October 2024.

[14] See n13.

[15] Vhumbunu, C.H. (2024). Peace-building Processes to Prevent and Manage Xenophobia in South Africa. In: Kiyala, J.C.K., Chivasa, N. (eds) Climate Change and Socio-political Violence in Sub-Saharan Africa in the Anthropocene. The Anthropocene: Politik—Economics—Society—Science, vol 37. Springer, Cham. https://doi.org/10.1007/978-3-031-48375-2_26 p.g 645-665 accessed 20 October 2024.

[16] Lucas Guttentag ‘Reflection on Bureaucratic Barriers to Immigration Reform’ (2019) The Regulatory view https://scholarship.law.upenn.edu/regreview-opinion/468/ accessed 20 October 2024.

[17] International Organisation for Migration ‘The Well-being of Economic Migrants in South Africa; Health, Gender and Development’ (2013) International Organisation for Migration https://www.iom.int/sites/g/files/tmzbdl486/files/migrated_files/What-We-Do/wmr2013/en/Working-Paper_SouthAfrica.pdf accessed 20 October 2024.