The Department of Home Affairs (DHA) has released its Green Paper on International Migration. As part of a public consultation process, we have until the 30th of September 2016 to submit comments on the Paper 
Positive aspects of the Green Paper
- The Green Paper calls for the further decolonising of South Africa’s immigration policy, and to address the bias that favour immigrants from Europe over African countries.
- The low-skilled regional work visa proposal, if properly implemented and devised in an accessible manner, has the ability to increase regular migration and enhance the state’s ability to manage migration.
- The proposals around SADC integration and skills development are encouraging.
- We often hear the claim that foreigners are stealing jobs, but the Green Paper rightly points out that we should be focusing on South African employers who are breaking South African employment laws by not paying a minimum wage. We would go further to argue that these employers pit poor asylum seekers and migrants against poor South Africans, fueling tension. What’s more, the Green Paper acknowledges that the view that ‘foreigners are invading South Africa and stealing jobs’ is grossly exaggerated. According to the Green Paper “South Africans make up over 90% of those employed in every sector” .
- The Green Paper uses the X word. The government has tried to avoid the word xenophobia, but the Green Paper provides a definition. However, the Green Paper does not elaborate on the extent of xenophobic violence in South Africa.
Negative aspects of the Green Paper
A public consultation while legislation is already being pushed through
The purpose of Green Papers is to allow public comments and engagement (public consultation) with the ideas informing proposed government policies. But you cannot have a public consultation while government is already pushing through changes to legislation. The Refugee Amendment Bill must be scrapped immediately, in line with the call of the Peoples’ Coalition Against Xenophobia.
Unsubstantiated claims that people abusing the asylum seeker application process
The DHA has admitted that 90% of asylum seeker applications are rejected (p. 29), because, it claims, people are abusing the system (p. 40). However, the Department provides no evidence of such abuse, to substantiate this claim which has set the tone of much of the Green Paper, nor does it mention that when asylum seekers arrive in Mzansi, they lodge applications with Refugee Reception Offices (RROs) which often lack the capacity, efficiency and training to process applications . Asylum seekers are disadvantaged because the RROs are in chaos and the system is broken making it near impossible to make an application to be documented and to be legal. In fact Mr Mr Madumisa -Director of Asylum Seeker Management is on record stating that since -”Early this year  we have advised stakeholders that our systems and processes are affected by renovations and reviews that are taking place at Marabastad and there will be disruptions”. And when the odd few do get to the stage of adjudication then on average only 4% are granted refugee status. We need only look at the Musina Refugee Reception Office, which has a 0% grant rate for asylum seeker applications, to see that the system is broken . Without improving the Refugee Application Board appeal and Standing Committee for Refugee Affairs [SCRA] review processes, it will take years for asylum seekers to navigate the adjudication process due to the high backlogs .
The Green Paper does not talk about the asylum processing system’s core role, that is, to protect refugees. The South African judiciary in numerous findings against the DHA refers to misery and suffering and “special vulnerability” when describing refugees and their plight.
Failure to acknowledge or analyse systemic problems in asylum seeker processing
- The DHA has been reducing administrative capacity for asylum seeker processing.
- It is highly problematic to make broad generalisations about asylum seekers’ legitimacy based on what country they come from. Persecution against LGBTQI community.
- The Green Paper, rather than talking about ensuring dignity for asylum seekers, appears to hint at possible skills of asylum seekers. Determinations should not be based on an asylum seeker's skills, or even money they may have which is increasingly a question asked on forms, but on persecution. The asylum seeker process is to protect persecuted people not identifying skills for the South African economy. While that is important, that’s not the purpose of the asylum seeker process.
- 35% of asylum seekers were able to get into a RRO (Refugee Reception Office) on their first visit. Average waiting time for a status determination interview is a year and 3 months. Those who have had their status determination interview have been in the system for at least 2 and half years. Fewer than half of asylum seekers are receive their section 22 permits the first time they enter the RRO .
- As access grows more difficult, large queues of desperate asylum seekers have again become a feature outside the reception offices. These queues, and the desperation they engender, create opportunities for crime, violence, and extortion as well as abuse from security guards. The large numbers of people waiting outside the offices for entire days, and in some instances nights, also raise issues of public health and sanitation. A number of respondents noted the absence of working toilet facilities, and the unhygienic situation this had created.
- It’s critical that asylum seeker processing is done properly, or it means more burden on the Refugee Appeal Board. Increase transparency and information about the asylum application process. Increase training of DHA interpreters. More notice of RSDO interview. Refugee Status Determination Officer must make decisions based on clear reasons, relevant considerations, must not be arbitrary and must consider the law. There must be a greater oversight process. DHA must be held accountable for violations of the law. Increase capacity of the Refugee Appeal Board. Both greater administrative effectiveness and administrative justice in the asylum system. Can’t sacrifice justice for efficiency. Department of Home Affairs lacks the political to enforce the rule of law ensure administrative justice –PAJA - The Promotion of Administrative Justice Act
- It is difficult for asylum seekers to obtain and maintain documentation. Permit renewal puts huge burden as long waiting periods, short duration of permits, taking time off work, finding childcare, transport, many visits for one renewal. DHA says asylum seekers who move and have to renew at a different RRO, can do so, but this is not the case in practice. Moving files from one office to another very hard.
- DHA can take steps to alleviate this demand by increasing the validity period of asylum permits, particularly for individuals waiting for appeal hearings or appeal results. Additionally, DHA can reduce the period of time that individuals remain in the asylum system by addressing the serious flaws in the status determination system, which in turn will eliminate some of the backlog at the appeals stage and reduce the wait for a final decision. Extend the validity period of asylum seeker permits from 3 to 6 months. Renewal presents a burden on workload
- Fining people for expired permits making the whole situation worse. These are unlawful, LHR has 2 court orders, but DHA has not changed the procedures. A fine of R1000 is issued, and asylum seekers are taken to police stations and “charged” once an asylum seeker admits guilt by paying the fine, they have a criminal record.
+ Lack of notice before the interview;
+ No explanation of the interview process;
+ Short duration of interviews, coupled with insufficient opportunities to fully explain the asylum claim;
+ Inadequate interpreter services; and
+ Discriminatory and biased attitudes toward applicants.
- A June 2012 report on the quality of status determination decisions pointed to serious flaws in the decision-making process, resulting in administratively unfair decisions that violate both refugee law and the constitutional guarantee of just administrative action .
- The Department is correct in stating that the 1999 White Paper failed to anticipate the additional budget, resources and capacity for managing South Africa's current migration needs. The constraints on the processing of asylum seeker applications should be addressed, but in addition the state must ensure the human dignity of all who enter South Africa.
Talks about decolonising our migration policy, but then reinforces racist practices
- While the paper speaks to the issue of South Africa's poor competing with economic migrants for jobs and resources, the paper appears to contradict itself. On the one hand it proposes correcting the 1999 White Papers’ colonial outlook, but the proposed solutions mentioned involves trying to attract the South African diaspora back to the country. The challenge here is that many left South Africa as they were unhappy with the new dispensation and arguably many are not committed to the values of the ‘new South Africa’, so this solution appears to reinforce a colonial outlook. The Green Paper should seek to attract values aligned members of the diaspora.
- EU countries, 90 day visa, but African brothers and sister from don’t have that option.
Asylum seekers and refugees experienced corruption at multiple stages of the asylum application process: 
+ The Marabastad refugee reception office showed the highest levels of corruption.
+ The pervasiveness of corruption in all aspects of the asylum process reveals a process that is no longer bounded by legal guarantees, predictability, or administrative fairness
+ Individuals must make multiple visits to a refugee reception office to address a single issue;
+ they remain in the system for several years, necessitating even more visits; and
+ they receive legally problematic status determination decisions that require appeals
+ At Marabastad, 51% reported experiencing corruption in the queue.
+At Marabastad, 30% reported being denied access because they did not pay
+ At Marabastad, 24% had paid at least once to renew their asylum permit.
+ At Marabastad, 47% of respondents had been asked for money to resolve the issue they were at the office on that day to resolve,
+ 56% of respondents had been in the system for over 180 days, which is the time period stipulated in the Regulations to the Refugee Act (No. 130, 1998) for the asylum process to be completed.
Inappropriate solution to challenges in the asylum seeker system
- Rather than seeking to address the systemic problems, it proposes infrastructure projects of creating asylum seeker processing centres which seek to put asylum seekers ‘out of sight and out of mind’, this move fits with Home Affairs view that asylum seekers should not be allowed to work, access education or move about South Africa. It’s claimed this process will be what’s best for South Africa, but the truth is it moves the asylum seeker processing behind closed doors, into virtual detention which would likely lead to gross human rights violations, while also being extremely costly in that the detention processing centres would have to accommodate, feed, provide health and education to asylum seekers. In being a huge cost to the state, it also means less money for service delivery for all.
- The problem is that the proposed solution, is based on a vision that puts development, sovereignty, peace and security above ensuring human dignity. The Green Paper claims that the state will adhere to constitutional principles including equal respect for human rights for all. However, in practice, the proposed solutions are focused on national security, social cohesion and nation building. While talking about security, the Green Paper talks about the threat of terrorism, but as the paper admits, the public debate around immigration often centres around scare mongering, yet the proposed solutions appear to push a narrative that there is rampant abuse of the asylum seeker process and this presents a threat to security, without providing evidence of this, and balancing security with a commitment to ensuring human dignity of asylum seekers. Security concerns is linked to the international policy shift on refugees and asylum seekers seeing them as a risk and security threat as opposed to recognition of their plight and offering protection support and assistance.
Conflating migrants and asylum seekers with criminality and security threats
- The Green Papers language frames migration in terms of criminality and security threats, this misrepresentative of the majority of migrants. A 2011 study found roughly 4% of South Africa’s prison population are foreigners, which correlates with the ratio of foreigners to citizens in South Africa . This framing, along with words such as illegal migration creates conditions for xenophobic violence.
Further exploitation of asylum seekers
- Many of the proposed policies for asylum seekers are unlikely to work given the history of capacity and implementation issues within the asylum system and due to the often onerous requirements placed on asylum seekers. A likely outcome is an increased number undocumented asylum seekers who will have international protection needs as well as increased vulnerability to criminality and labour exploitation in South Africa. The SCCT, along with other service providers, have through working with undocumented migrants have come across numerous obstacles these migrants face in accessing government services. Often, when undocumented migrants report crimes to the police, officials will refuse to assist if an original document is not presented. Consequently, those undocumented individuals will not even bother to report crimes to the police due to their legal status.
- Operation Fiela, discriminated against fellow Africans, and the Green Paper appears to push the values of Operation Fiela .
- The solution the Green Paper proposes is that “Asylum Seeker Processing centres should be established closer to the borderline” (p. 65), but the Paper fails to clarify whether such Asylum Seeker Processing centres will in fact be more like Detention Centres like Lindela, which has a well documented history of human rights violations  . To make matters worse, Home Affairs mentions that these processing centres are “common international practice in countries such as Canada, Australia…” (p. 66). This is alarming because Australia's asylum seeker ‘processing centres’ are in fact detention centres which have been globally condemned for their violation of human rights  . Asylum seekers in Australian centres have even taken to sowing their mouths shut as part of a hunger strike in protest of their treatment in these centres .
- Possibly closing RROs because want to move to borders, saying people shouldn’t be in Cape Town or Joburg, Stop roaming around, kept at the borders. Pushing the problem to the borders, to prevent people getting. Building processing centre at Lebombo, rural random area, it will be a camp, but they say they aren’t changing their policy of non encampment.
- Cost of deporting people is so much money, money could go towards improving the systems, more adjudication officers, better training. They don’t have money for computers to reopen the office in PE, but have money to build a building in Musina, Lebombo, why do you spend money on building a building it’s the systems. If you can’t get it right in Pretoria, why are you moving it to Lebombo?
- The Green Paper provides no information on how South Africa will afford building all these asylum seeker processing centres. There is no plan which indicates how it will meet the basic needs of thousands of people who will be trapped in limbo and denied basic human dignity which the right to work affords. Let alone health provisions and other basic human rights enshrined in the Constitution and Bill of Rights
- Already the Lindela Repatriation Centre already presents a constitutional challenge, and the Green Paper does not articulate how the current proposed solutions will address human rights violations in our asylum seeker and immigration system. In fact, some could argue the the Green Paper ‘outsources’ the right to human dignity, from a responsibility of the government, to a responsibility of international organisations such as the UNHCR and the Red Cross.
- The Constitution’s Bill of Rights applies to ‘everyone’ in South Africa unless specifically mentioned. Asylum seekers therefore enjoy the same human rights as South African citizens to dignity, life, freedom and security, administrative justice, privacy, religion, freedom of movement, and access to information and courts.
- The asylum seeker processing centers put South Africa at risk of refoulement – and being in contravention of the UN Convention on the rights of Refugees - The Convention Relating to the Status of Refugees, also known as the 1951 Refugee Convention, and other treaties South Africa has signed. In addition the Green Paper is not compliant with the AU’s Migration policy framework for Africa .
Negative impact of detention
- There is a growing body of empirical evidence indicating that even short periods of time in detention facilities have long term negative impacts on mental and physical health. There is no evidence that detention practices have any deterrent effect on irregular migration .
- DHA's current immigration detention regime has a history of unlawful activity – one study analysed 90 unlawful detention cases (brought over a 23 month period and found that the cases cost the Department at least R2.5 million in legal fees and R2.6 million in costs relating to those unlawful detentions Further, as of March 2013 there were R503.3 million in pending legal claims against Immigration Affairs.17 These figures indicate systemic difficulties surrounding DHA's detention practices and call into question DHA’s ability to implement a detention regime that would meet human rights and administrative justice standards.
- The Green Paper’s proposal indicates that detention facilities will be established at border areas. This brings up issues such as accessibility and the availability of services. While the Green Paper does mention some asylum seekers could be released into the care of ‘organisations and community members’, the location of the facility on the border, and the concentration of refugee communities in major urban areas such as Gauteng, Durban and Cape Town, will result in severe hardship for families and individuals who will have to travel long distances to meet their responsibilities as under the Refugees Act–this has been the case of asylum seekers in Cape Town after the closure of the RRO in 2012 .
- It is not illegal to seek asylum, and it should not be illegal to be an African in South Africa, therefore some of the language of the Green Paper, proposes solutions which are similar to crime control, i.e. deterrence, punishment, segregation and detention.
The right to work
- It appears Home Affairs and government is receiving pressure from some sections of society, that Mzansi is being overrun with migrants who are stealing jobs. Again the Green Paper contradicts itself. It’s policy recommendation is to remove the right to work for asylum seekers. One could only be pushing for such a policy change if some in Home Affair’s agree with this idea that foreigners are stealing jobs. But the Green Paper itself debunks this statement, stating that “South Africans make up over 90% of those employed in every sector” . The real issue, is not that foreigners are stealing jobs, but what the Green Paper rightly points out, that South African employers are breaking the law by wanting to pay the cheapest wage possible, and are pitting poor asylum seekers and migrants against poor South Africans, fueling tension in poor communities.
- The Green Paper also recommends removing the right for asylum seekers to work and study, not only makes it difficult for asylum seekers to survive, but the Green Paper also suggests that asylum seekers would instead be held in administrative detention centres, which puts a huge burden on the state and conflates seeking asylum with criminality, which contradicts the Universal Declaration of Human Rights.
- We welcome the Green Papers acknowledgement of xenophobia, which government has often avoided at all costs. However, the xenophobia definition used fails to acknowledge the violent nature of xenophobia in South Africa. Or how misinformation, and comments from public officials has driven xenophobia, and that this must be addressed.
- The Green Paper indicates that asylum seekers will not be allowed to work nor integrate into local Communities. The Constitution guarantees the right to education to 'everyone', including foreign children, and the Green Paper has not elaborated on this aspect of the proposed detention model. Education is critical for the development of children and is an important component of integration as well as durable solutions more broadly.
Alternatives to addressing push and pull factors:
- Better communicate information about applying for asylum to deter those who are not eligible. Better training for RSDO’s. Making life and death decisions.
- Why aren’t we trying to address the cause of the socio-economic and persecution that is causing people to flee.
 Department of Home Affairs (DHA). 2016. Green Paper on International Migration in South Africa. [O]. Available at: http://www.dha.gov.za/files/GreenPaper_on_InternationalMigration-%2022062016.pdf.
 Ibid, p. 27.
 Mubayiwa, A. 2011. ‘Refugees in SA fight for better conditions’, Times Live, 21 August. [O]. Available at: http://www.timeslive.co.za/africa/2011/08/21/refugees-in-sa-fight-for-better-conditions.
 Department of Home Affairs. [undated]. ‘Asylum statistics: analysis and trends for the period January to December’. Presentation to the Portfolio Committee on Home Affairs. [O]. Available at: http://pmg-assets.s3-website-eu-west-1.amazonaws.com/160308Asylum.pdf, p. 20.
 Mzantsi (2016) cited in ‘Establishment of 'Administrative Detention Facilities' / 'Administrative Detention Centres' for Asylum Seekers’ Briefing document.
 Migrant Rights Monitoring Project (MRMP). 2009. National survey of the refugee reception and status determination system in South Africa. [O]. Available at: http://www.migration.org.za/uploads/docs/report-15.pdf.
 Amit, R. 2012. All Roads Lead to Rejection: Persistent Bias and Incapacity in South African Refugee Status Determination. Johannesburg: African Centre for Migration and Society. [O]. Available at: http://www.lhr.org.za/sites/lhr.org.za/files/all_roads_lead_to_rejection_research_report.pdf.
 Amit, R. 2015. Queue Here for Corruption –Measuring Irregularities in South Africa’s Asylum System. Pretoria & Johannesburg: Lawyers for Human Rights & The African Centre for Migration and Society. [O]. Available: http://www.migration.org.za/uploads/docs/lhr-acms-report---queue-here-for-corruption---july-2015.pdf.
 A study of prison trends and statistics found that, in 2011, the foreigner prisoner population was roughly 4% of all prisoners in the country, which correlates with the ratio of foreigners to citizens in South Africa (Jules-Macquet, R. 2014. The State of South African Prisons. Cape Town: NIRCO. [O]. Available at: http://press.nicro.org.za/images/PDF/Public-Education-Paper-The-State-of-South-African-Prisons-2014.pdf).
 Operation Fiela 'demoralises and dehumanises' migrants. Nomahlubi Jordaan for Times Live. 22 July 2015. http://www.timeslive.co.za/local/2015/07/22/Operation-Fiela-demoralises-and-dehumanises-migrants
 South African Human Rights Commission. 2000. Lindela at the crossroads for detention and repatriation. [O]. Available at: http://www.gov.za/sites/www.gov.za/files/lindela2_0.pdf.
 Lawyers for Human Rights. 2008. Monitoring Immigration Detention in South Africa. [O]. Available at: http://www.lhr.org.za/sites/lhr.org.za/files/LHR%20detention%20monitoring%20report%2010%20Dec%2008.pdf.
 Doherty, B & Kingsley, P. 2016. ‘Refugee camp company in Australia 'liable for crimes against humanity', Guardian, 25 July. [O]. https://www.theguardian.com/australia-news/2016/jul/25/ferrovial-staff-risk-prosecution-for-managing-australian-detention-camps.
 Saul, H. 2015. ‘Australian asylum seekers sew their mouths shut in hunger strike protest at being moved to 'unsafe' accommodation’, Independent,14 January. [O]. Available at: http://www.independent.co.uk/news/world/australasia/australian-asylum-seekers-sew-their-mouths-shut-in-hunger-strike-protest-at-being-moved-to-unsafe-9978026.html.
 Scalabrini Centre of Cape Town. 2016. ‘Green Paper on International Migration: Some Key Considerations’ Briefing document.
 Amit & Zelada-Aprili (2012) cited in ‘Establishment of 'Administrative Detention Facilities' / 'Administrative Detention Centres' for Asylum Seekers’ Briefing document.
 Pather (2015) cited in ‘Establishment of 'Administrative Detention Facilities' / 'Administrative Detention Centres' for Asylum Seekers’ Briefing document.
 Ibid, p. 27.