The South African Refugees Act1 makes a distinction between an asylum seeker and a refugee. The Act defines an asylum seeker as “a person who is seeking recognition as a refugee in the Republic”. A refugee on the other hand, is a person “who has been granted asylum” in the Republic.2 The legal position in South Africa is that before a person is recognized as a refugee, he or she is protected by the Bill of Rights to a certain extent. In the case of Lawyers for Human Rights v Minister of Home Affairs the Constitutional court confirmed that the protection afforded by the Bill of Rights applies to everyone, including illegal foreigners and asylum seekers.3 This means that asylum seekers and refugees are entitled to most of the rights in the Constitution except those specifically reserved for citizens. Practically though, a refugee enjoys more rights than an asylum seeker. It is therefore in the interest of asylum seekers to have their status as refugees determined. The process of applying for refugee status can be a challenge for those seeking refuge in the Republic of South Africa. For applicants coming from non-English speaking countries, language barrier can also present its own challenges. In terms of the Refugees Act, the first application is to the Refugee Reception Officer at the refugee reception office. The application must be made in person.4 When an asylum seeker is deemed fit to qualify for asylum, he or she will be issued with a permit in terms of section 22 of the Refugees Act. The permit allows the asylum seeker to temporarily reside in South Africa until the finalisation of the asylum claim. This permit does not mean that the asylum seeker is already recognised as a refugee. The permit is an indication that the asylum seeker’s application as a refugee is not yet finalised. The application is considered finalised when it has gone through the hearing before the Status Determination Officer and any review or appeal following from that decision. It is the Refugee Status Determination Officer who will grant asylum or reject the application.5 For people applying for refugee status, the determination by the Status Determination Officer may in itself mark the beginning of the process to be repatriated back to the country they were running away from in the first place. An aggrieved applicant can also apply to have the adverse decision reviewed or even lodge an appeal in accordance with the provisions of the Refugees Act.6 For as long as the application is still pending, the government cannot deport any asylum seeker. An asylum seeker who enters the Republic of South Africa, either through a port of entry or illegally faces many challenges before he or she could reach a refugee reception office. Those who come in through a port of entry face being turned away by Immigration Officers due to lack of documentation. Often, asylum seekers find it hard to reach the refugee reception offices as there is no co-operation between the Immigration Officers, the South African Police Service and the functionaries in the refugee reception offices. To make things worse, the Immigration Amendment Act has reduced the days from fourteen to five, for asylum seekers without valid documentations to reach any refugee reception office. Since refugee reception offices are located only in five cities in the country, these have conditioned asylum seekers and refugees to stay and make their living in those cities as they are required to make frequent renewal of their permit. The closure of some of the refugee reception offices like the Johannesburg refugee reception office has caused a major concern to asylum seekers and refugees. This persistent closure of refugee reception offices may be seen as a further persecution in the eyes of asylum seekers and refugees. The inability of the different functionaries to differentiate between asylum seekers and economic migrants adds to the problem concerning the process of refugee status determination. Instead of seeking to identify people in need of protection from persecution or events seriously disturbing public order, the process is used as an immigration control and this causes more people to be turned away or returned to countries where their lives may be at risk. The communication between the asylum seeker and all the functionaries of the Department of Home Affairs is very important. The lack of professional interpretation functionaries to help asylum seekers who need interpretation contributes to the problems asylum seekers face. Often, asylum seekers have to provide their own interpreters if the Department is unable to do so. The purpose of the study is to investigate the status determination process from a South African perspective and to make recommendations which will try to resolve the problem(s) identified. / Public, Constitutional, & International / LLM

The South African Refugees Act1 makes a distinction between an asylum seeker and a refugee. The Act defines an asylum seeker as “a person who is seeking recognition as a refugee in the Republic”. A refugee on the other hand, is a person “who has been granted asylum” in the Republic.2 The legal position in South Africa is that before a person is recognized as a refugee, he or she is protected by the Bill of Rights to a certain extent. In the case of Lawyers for Human Rights v Minister of Home Affairs the Constitutional court confirmed that the protection afforded by the Bill of Rights applies to everyone, including illegal foreigners and asylum seekers.3 This means that asylum seekers and refugees are entitled to most of the rights in the Constitution except those specifically reserved for citizens. Practically though, a refugee enjoys more rights than an asylum seeker. It is therefore in the interest of asylum seekers to have their status as refugees determined. The process of applying for refugee status can be a challenge for those seeking refuge in the Republic of South Africa. For applicants coming from non-English speaking countries, language barrier can also present its own challenges. In terms of the Refugees Act, the first application is to the Refugee Reception Officer at the refugee reception office. The application must be made in person.4 When an asylum seeker is deemed fit to qualify for asylum, he or she will be issued with a permit in terms of section 22 of the Refugees Act. The permit allows the asylum seeker to temporarily reside in South Africa until the finalisation of the asylum claim. This permit does not mean that the asylum seeker is already recognised as a refugee. The permit is an indication that the asylum seeker’s application as a refugee is not yet finalised. The application is considered finalised when it has gone through the hearing before the Status Determination Officer and any review or appeal following from that decision. It is the Refugee Status Determination Officer who will grant asylum or reject the application.5 For people applying for refugee status, the determination by the Status Determination Officer may in itself mark the beginning of the process to be repatriated back to the country they were running away from in the first place. An aggrieved applicant can also apply to have the adverse decision reviewed or even lodge an appeal in accordance with the provisions of the Refugees Act.6 For as long as the application is still pending, the government cannot deport any asylum seeker. An asylum seeker who enters the Republic of South Africa, either through a port of entry or illegally faces many challenges before he or she could reach a refugee reception office. Those who come in through a port of entry face being turned away by Immigration Officers due to lack of documentation. Often, asylum seekers find it hard to reach the refugee reception offices as there is no co-operation between the Immigration Officers, the South African Police Service and the functionaries in the refugee reception offices. To make things worse, the Immigration Amendment Act has reduced the days from fourteen to five, for asylum seekers without valid documentations to reach any refugee reception office. Since refugee reception offices are located only in five cities in the country, these have conditioned asylum seekers and refugees to stay and make their living in those cities as they are required to make frequent renewal of their permit. The closure of some of the refugee reception offices like the Johannesburg refugee reception office has caused a major concern to asylum seekers and refugees. This persistent closure of refugee reception offices may be seen as a further persecution in the eyes of asylum seekers and refugees. The inability of the different functionaries to differentiate between asylum seekers and economic migrants adds to the problem concerning the process of refugee status determination. Instead of seeking to identify people in need of protection from persecution or events seriously disturbing public order, the process is used as an immigration control and this causes more people to be turned away or returned to countries where their lives may be at risk. The communication between the asylum seeker and all the functionaries of the Department of Home Affairs is very important. The lack of professional interpretation functionaries to help asylum seekers who need interpretation contributes to the problems asylum seekers face. Often, asylum seekers have to provide their own interpreters if the Department is unable to do so. The purpose of the study is to investigate the status determination process from a South African perspective and to make recommendations which will try to resolve the problem(s) identified. / Public, Constitutional, and International / LL. M.

Thesis (LLM)--Stellenbosch University, 2014. / ENGLISH ABSTRACT: The rights entrenched in the Bill of Rights in South Africa’s final Constitution are, with a few exceptions, guaranteed to citizens and non-citizens alike. South Africa has seen an influx of migrants, asylum seekers and refugees since 1994, and this migratory movement has posed significant challenges to the post-apartheid legal order. This thesis is concerned with the State’s implementation of its constitutional obligations to protect and guarantee the constitutional rights of everyone within the borders of South Africa. It is important that these constitutional obligations do not remain mere aspirations but should translate into reality. Most non-citizens living in South Africa face numerous barriers to accessing justice and the processes that could enable them to realise their rights. The thesis examines the concept of “access to justice” and investigates a number of obstacles encountered by different categories of non-citizens – such as refugees, asylum seekers and documented and undocumented migrants – in trying to access justice and to realise their rights. Against this background, arrest, detention and deportation under the Immigration Act and Refugees Act are examined because these processes have often been abused by State officials to prevent non-citizens from accessing the rights and protections guaranteed in these Acts and the Constitution, and to frustrate the implementation of court orders vindicating the rights of non-citizens. The application of the Immigration and Refugees Acts is discussed through the lens of sections 12(1), 33, 34 and 35(2) of the Constitution which ensure that arrest, detention and deportation are done in a lawful and procedurally fair manner, as opposed to the arbitrariness that most non-citizens experience on a daily basis. Secondly, the thesis also examines access to justice for non-citizens in the context of xenophobia and bias based crimes. The State has in the past failed to respond in a coordinated and timely fashion in the face of violent manifestations of xenophobia. Against this background, the State’s obligation to protect non-citizens from violence from either public or private sources in terms of section 12(1)(c) of the Constitution is discussed and analysed. The role, accessibility and effectiveness of Equality Courts are also examined in light of the Promotion of Equality and Prevention of Unfair Discrimination Act and the cases that were brought before them emanating from xenophobic incidents. The thesis concludes with proposals on areas which require better implementation of existing laws; and areas in which legislative reform is needed. / AFRIKAANSE OPSOMMING: Die regte wat in die Handves van Regte in Suid-Afrika se finale Grondwet veranker is, word op enkele uitsonderings na vir burgers en nie-burgers gewaarborg. Sedert 1994 het Suid- Afrika instroming van migrante, asielsoekers en vlugtelinge beleef, en hierdie verskuiwing het wesenlike uitdagings aan die post-apartheid regsorde gestel. Hierdie tesis is gemoeid met die Staat se implementering van sy grondwetlike verpligting om die grondwetlike regte van almal wat hul binne Suid-Afrika se landsgrense bevind, te beskerm en te waarborg. Dit is belangrik dat hierdie grondwetlike verpligtinge nie blote aspirasies bly nie, maar ’n werklikheid word. Die meeste nie-burgers wat in Suid-Afrika woon staar talle hindernisse in die gesig wat dit vir hulle moeilik maak om toegang tot geregtigheid te verkry en om hul regte te verwesenlik. Die tesis ondersoek die begrip “toegang tot geregtigheid” en bekyk aantal struikelblokke in die weg van verskillende kategorieë nie-burgers – soos vlugtelinge, asielsoekers en gedokumenteerde en nie-gedokumenteerde migrante – wat toegang tot geregtigheid probeer verkry en hul regte probeer verwesenlik. Teen hierdie agtergrond word arrestasie, aanhouding en deportering ingevolge die Wet op Immigrasie en die Wet op Vlugtelinge ondersoek, aangesien hierdie prosesse dikwels deur staatsamptenare misbruik word om nie-burgers te verhinder om toegang te verkry tot die regte en beskermings wat in hierdie wetgewing en in die Grondwet gewaarborg word, en om geregtelike bevele wat die regte van nie-burgers afdwing, te verydel. Die toepassing van die Wet op Immigrasie en die Wet op Vlugtelinge word deur die lens van artikels 12(1), 33, 34 en 35(2) van die Grondwet bespreek, wat probeer verseker dat arrestasie, aanhouding en deportering op regmatige en prosedureel billike manier geskied, in teenstelling met die willekeur wat nie-burgers op daaglikse basis ervaar. Tweedens ondersoek die tesis toegang tot geregtigheid vir nie-burgers in die konteks van vreemdelingehaat en misdade wat op vooroordeel gebaseer is. Die Staat het in die verlede in gebreke gebly om in die aangesig van gewelddadige manifesterings van vreemdelingehaat op gekoördineerde en tydige manier te reageer. Die Staat se verpligting om ingevolge artikel 12(1)(c) van die Grondwet nie-burgers teen geweld van hetsy openbare hetsy private oorsprong te beskerm, word bespreek en ontleed. Die rol, toeganklikheid en doeltreffendheid van gelykheidshowe word ook bespreek in die lig van die Promotion of Equality and Prevention of Unfair Discrimination Act en die sake wat deur hierdie howe beslis is wat uit xenofobiese voorvalle voortspruit. Die tesis sluit af met voorstelle oor terreine waar beter implementering van bestaande wetgewing benodig word, asook terreine waar wetgewende hervorming verlang word.