White paper highlights Gigaba’s anti-poor and anti-African approach to immigration

By Savo Heleta, Sharon Ekambaram and Garret Barnwell

Business Day
23 July 2018

Since Malusi Gigaba stepped back into the role of home affairs minister in February, it is time to reflect critically on his regressive, anti-poor and anti-African international migration vision for South Africa. The White Paper on International Migration, approved by the government in March 2017, aims to manage migration to achieve SA’s national goals.

The white paper states that SA’s new international migration policy "must be oriented towards Africa". However, there is little in the document that suggests the new policy will be pro-African. Rather, the Department of Home Affairs wants to make it extremely difficult for predominantly poor black people from elsewhere in Africa to come to SA.

The new immigration plans are framed around national development and security goals. Poor and unskilled immigrants are essentially seen as a threat to SA’s security, stability and prosperity. The white paper separates migrants into "worthy" and “unworthy" individuals. The international migrants who have skills and money are welcome to come to the country and can stay in SA permanently. Others — the poor and unskilled — are deemed unworthy and undesirable.

The former minister, Hlengiwe Mkhize, is on record saying SA must tighten its immigration policy and protect its borders — even if this is labelled anti-African behaviour on the continent. If poor foreigners somehow enter the country, they will be dealt with harshly and likely deported.

SA is one of the world’s most unequal countries, with extreme poverty and inequality rooted in colonial and apartheid oppression as well as the failure to improve the lives of millions of predominantly black people in the post-apartheid period.

Yet it’s through the use of language of othering, scaremongering and securitisation — from "migrants are taking our jobs" to "foreigners are criminals" — that immigrants are blamed for many of SA’s woes and the regressive migration policies are facilitated.

According to the 2011 census, 75% of about 2-million international migrants who are based in SA are from Africa. More than 90% of the migrants are from the Southern African Development Community (SADC) region, with Zimbabwe and Mozambique contributing 46% and 27% of all international migrants respectively. The Statistics SA Community Survey 2016 puts the percentage of foreign-born population in SA at a mere 2.8%.

These numbers clearly show that the country is not flooded with foreign nationals. Evidence also shows that foreigners are not stealing jobs from South Africans. 

As a relatively strong economy in the region, SA attracts economic migrants from the neighbouring countries and the rest of the continent. Unable to find legal ways to enter the country, many migrants see the asylum system as a way in.

The white paper proposes an SADC work visa that will help regulate economic migration in the region. This visa is likely to ease the pressure on the asylum system, allowing economic migrants a legal and regulated way into SA.

Despite this, the government plans to go all out in attacking the asylum system, introducing regressive and dehumanising policies and procedures aimed at making SA an unattractive destination for asylum seekers.

Many of the department’s proposed measures are not just ill-informed but will be grossly unconstitutional. While the department already often undermines the Constitution by flagrantly ignoring court orders and implementing cruel and unlawful policies, this will only get worse if the white paper proposals become the law.

One of the most controversial aspects of the white paper is the plan to establish asylum seeker processing centres. These centres will be used for the detention of asylum seekers while their applications are being processed. The use of blanket detention of migrants as the primary way of managing migration is problematic in that it amounts to the criminalisation of the poor.

The proposals in the white paper that deal with the asylum system are regressive and likely to be in breach of the Constitution. As Lawyers for Human Rights has pointed out, the blanket detention provision is an "inherent violation of the right to human dignity" that will fail to "meet the requirements of proportionality under the limitations clause under section 36 of the Constitution". Most disturbingly, the new policy will undoubtedly legalise the dehumanising practices experienced by migrants and asylum seekers, who frequently face mistreatment and corruption as they navigate the asylum process.

The asylum seekers — people who have fled their countries due to conflict, political prosecution and other hardships and who have applied for recognition as refugees in SA — will be able to leave the detention centres only when they receive refugee status or are declined and deported.

Asylum seekers wait for three to 15 years for their applications to be processed. Even if this time is halved, the government’s detention plans will be an enormous and expensive undertaking that will likely lead to corruption and abuse.

The department claims that the basic needs of asylum seekers will be catered for while in detention. It hopes to outsource the provision of services in the processing centres to international and national aid organisations.

However, it is unlikely anyone will be interested or have funding and capacity to take on this controversial burden.

Most likely, these processing centres will be outsourced to private companies to run, with the taxpayers footing the bill.

For years, international migrants have suffered in dehumanising and oppressive conditions at the Lindela Repatriation Centre, the management of which is outsourced to the private security company Bosasa. If Lindela is anything to go by, serious administrative failures, human rights violations, poor healthcare provision, impunity and the absence of functional oversight and accountability mechanisms in the proposed detention centres can be expected.

Asylum seekers are free to move within SA and reside where they choose while awaiting the processing of their applications for refugee status. They are also allowed to work or study. These rights were granted to them by the courts, which argued that the right to work is a critical element of respect for human dignity that also allows asylum seekers to sustain themselves. If the new immigration proposals are implemented, asylum seekers will have no right to education, work or freedom of movement.

The white paper does not mention what would happen to the children of the asylum seekers held in the processing centres. Will they be able to go to school? If so, where? Will the department build and staff schools in the processing centres? If not, denying basic education to the children of asylum seekers would be against the Constitution. The government is constitutionally bound to protect the interests of all children. In particular, section 29 of the Constitution protects the right to basic education for all children — local and foreign — based in SA.

The white paper aims to limit the pull factors and discourage poor migrants and asylum seekers from embarking on a perilous journey across the border to SA. In this, SA is following the anti-immigrant trends of the US, much of Europe and Australia, closing itself to asylum seekers and economic migrants.

In Europe many governments are deliberately mistreating and degrading migrants and refugees "to make a point to anyone else considering the journey". Just like Europe, SA plans to build "places of internment, spaces of relegation, a way to sideline people considered to be intruders, lacking valid permits, rendering them illegal, and ultimately undeserving of dignity".

Through harsh treatment the department under Gigaba’s leadership wants to deter poor African migrants and asylum seekers from coming into the country. However, despite all this, the new policy framework is unlikely to stem migration from the continent.

As long as there are strong push factors such as violent conflict, political instability, repression, climate change and extreme poverty on the African continent, asylum seekers and economic migrants will continue to see SA as a place of safety where human rights and respect for human dignity are enshrined in the Constitution.

What the new policy will do is push many poor African migrants underground, making them vulnerable to all kinds of exploitation, while welcoming with open arms the rich and skilled and treating them humanely and with dignity.

As the ministers are shuffled every other month in the department, Gigaba might soon [again] be gone, but his anti-poor and anti-African international migration vision will haunt SA for a long time.

Savo Heleta is a researcher at Nelson Mandela University, Sharon Ekambaram is the manager of the refugee and migrant rights programme at Lawyers for Human Rights and Garret Barnwell is a consultant focused on humanitarian aid and migration.