Distinguished Judges and delegates:
I wish to take this opportunity to salute you all and welcome you to this very important conference assembled to discuss issues so fundamental both to our humanity as well as to human rights across the world.
It is a rare pleasure to be able to engage with you all, without cases before you and lawyers as intermediaries!
Indeed speaking as one of the social actors among those responsible for the management of international migration, we convene at a significant time, for refugee issues globally have assumed significant prominence, drawing the attention of humanity and all nations as evidenced by the convening of the United Nations High-Level Meeting on the Large Movements of Migrants and Refugees.
The Calais situation in 2015, as well as the numbers of people that drowned on the coast of Greece, attracted global attention and challenged the very conscience of those amongst us who still have a conscience in the first instance.
Indeed, as we from the South continued to remind the world, this was not the first and certainly not the last, large forcible movement of people across countries and regions, because we had for the greater part of the twentieth century witnessed such large movements and even as the 21st Century was ushered in, against all hope, we have witnessed the most able and most ambitious and daring of African people perishing in the vicious waters of the Mediterranean Sea that seem never to satisfy its voracious yearning for ever fresher African victims.
The fact of the matter is that the world must react with the same shock and sense of duty to all calamities affecting all the people everywhere in the world, in the North as in the South.
Furthermore, global response and action must be directed at the victims rather than the countries whose comfort and convenience seems to be stirred by the arrival of the unwanted!
Ladies and Gentlemen,
South Africa welcomes the adoption of the New York Declaration for Refugees and Migrants and applauds the fundamental commitment by states to protect the human rights of all refugees and migrants, regardless of status.
We are convinced that this Declaration marks a turning point in our history as nations in dealing with persons on the move.
We must heed the call to maintain our high level of ambition to ensure that we direct our collective efforts to save lives, protect rights and share responsibility on a global scale.
We wish to reiterate the appeal to all nations to ensure that we spare no effort to reduce and ultimately eliminate the forcible movement of people both within and between nation-states.
Ladies and Gentlemen,
Globally, the persistence of intractable conflicts continues to drive the displacement of people.
In his foreword to the UNHCR’s 2015 Global Report, the UN High Commissioner for Refugees, Filippo Grandi, notes that more than 65 million people globally have been forcibly displaced and uprooted by war, conflict, persecution or human rights abuse.
As we consider the many refugee source countries in the Middle-East and Africa, we must remain ever conscious that the ultimate protection of refugees will come from eliminating the conditions which displace people in the first place, by resolving and preventing violent conflicts, and entrenching democratic governance, a human rights culture, and the rule of law domestically and internationally.
The UN refugee charter envisioned a world where insecurity was temporary, the result of infrequent conflicts which would be resolved in a couple of years.
And yet many refugees – from the DRC, the Great Lakes region, Somalia, Palestine – remain displaced or unable to return home after many years and even decades.
The poorest countries host the largest refugee populations, while the richest countries host the fewest.
Such realities, including the most recent incidents of the large movements of refugees and asylum-seekers, call for renewed global efforts to find sustainable solutions to war and conflict as well as durable solutions in the management of refugee situations.
The focus must forever remain the victims and potential victims.
Ladies and Gentlemen,
Here in South Africa, the Department of Home Affairs is leading the development of a new policy on international migration, to replace the outdated 1999 White Paper.
An important area therein, of course, is the management of refugees and asylum seekers.
So as we are currently reflecting on existing practice, challenges and opportunities in these areas, it is particularly opportune to be able to share perspectives with yourselves, given your role in interpreting and applying refugee law.
In the democratic period, South African can claim a proud record of responding to the plight of refugees and asylum-seekers.
We are one of 148 countries in the international system that have chosen to become parties to the 1951 Convention relating to the Status of Refugees or to its 1967 Protocol.
To give effect to these obligations, we adopted the 1998 Refugees Act which established institutions and procedures for refugee protection.
The asylum seeker management and refugee protection regime enabled by this legislation has been widely regarded as one of the most liberal in the world.
South Africa currently hosts over 95 000 recognized refugees, and last year received approximately 62 000 applications for asylum.
We are proud to be one of the few African countries which receives large volumes of asylum seekers but which does not use encampment.
Indeed our refugee policy reflects:
- our historic experiences as victims of oppression and state violence, which forced many South African activists to become refugees,
- our Constitutional values of respect for human rights, dignity and inclusion, as well as
- our foreign policy which seeks to contribute to a better Africa and a better world.
Ladies and Gentlemen,
Bearing in mind the foregoing, I would like today to focus on the relationship between immigration and refugee policy.
Through immigration policy, countries exercise their sovereign right to determine who may access their territory.
This is usually a consideration based on what is considered the national interest.
This is perhaps a nebulous concept at best, but generally it is underscored by the sometimes competing aspects of development and security.
The history of glassmaking in the north of Italy provides a fascinating insight into this phenomenon.
The Renaissance-era Venetians welcomed a group of Turkish refugees who had perfected the art of making glass clear.
In the 15th and 16th Centuries, this skill was so valued that it propelled the economy of the Venetian state.
The skilled glassmakers were confined to the Islands of Murano in order to curtail their access to the world.
The Venetian State had a vested interest in protecting the secrets of clear glassmaking and imposed immigration restrictions on the glassmakers, in that they could not travel out of the Muramo Islands.
This could not have been very pleasant for the glass makers, but the immigration restrictions allowed the state to prosper, and it was the preservation of this industry in Northern Italy that allowed Galileo to obtain the clear glass lens for his first telescope.
These world famous glassmaking skills are still in existence today and are passed down from generation to generation.
This is an amazing example of how from ancient times immigration laws propelled and preserved national interest.
While immigration law is an expression of a state’s sovereignty, refugee law represents a relenting of sovereignty.
Signatories to the UN’s refugee convention and protocol surrender a degree of sovereignty, by agreeing to admit on to their soil, and indeed protect, anyone who fears persecution in another country on protected grounds.
The very survival of the relenting regime may depend on the extent that the Courts uphold the immigration regime, for if States determine that generosity in refugee policy is used to subvert its sovereignty, they may feel compelled to withdraw refugee protection politically, legally, and in practice.
So it is important that we recognize this conceptual relationship between immigration management and protection of asylum seekers and refugees.
Arguably, when South Africa adopted new policy and legislation on refugees in the late 1990s, we did so with insufficient consideration for its relationship with immigration policy more broadly.
Perhaps, viewed differently, it was within the context of an evolving, and not yet fully developed, immigration policy.
Our experience in the intervening period highlights the importance of this relationship.
For indeed, our immigration and refugee policies, instead of complementing one another, have undermined one another, certainly not maliciously or by design.
By failing to anticipate, manage and accommodate the large number of migrants from our neighbouring countries, who could not get mainstream immigration visas to work and reside in South Africa, our immigration policy undermined our refugee policy
Broadly referred to as economic migrants, this group includes low-skilled and unskilled work seekers, self-employed persons, and small and micro entrepreneurs.
Unable to access regular visas, these economic migrants increasingly usurped the asylum-seeker process over the past decade-and-a-half in our country.
The number of asylum-seeker applications per year averaged around one hundred thousand in recent years, peaking at close to two hundred thousand in 2010.
Analysis of the status determination interviews and investigations, and rejection rates, indicates that economic migrants vastly outnumbered and continue to outnumber genuine asylum-seekers.
This influx placed enormous strain on our asylum resources, gave rise to corruption and greatly disadvantaged genuine asylum-seekers, making both genuine asylum-seekers as well as economic migrants vulnerable to organised criminal syndicates and unscrupulous public officials, who included the immigration officials, police and others.
Of course a key attraction of our asylum-seeker process for economic migrants is that South African jurisprudence has granted asylum-seekers the right to work, study or start a business whilst awaiting a refugee status decision.
And, of course, our Constitution’s recognition of socio-economic rights and corresponding generous public and social services represent another pull factor.
The fact that the system was overburdened and applications took years to finalise has made the asylum-seeker permit a de facto long-term work-visa for economic migrants.
Ladies and Gentlemen,
It is difficult not to feel that our national commitment to liberal asylum and refugee policies is not being abused, when we receive numerous asylum applications from people from the Horn of Africa, West Africa and the Indian sub-continent including Pakistan and Bangladesh, who have travelled through several safe countries on their way to South Africa.
This is in clear disregard of principles of third safe country, or first safe country.
It speaks either to other third safe countries not doing their fair share to protect asylum-seekers and refugees, forcing them to travel to South Africa.
Or it speaks to abuse of the asylum process by economic migrants.
How can I arrive in Argentina, from Brazil, and say that I am a South African national seeking asylum as I fear persecution in South Africa?
We require a “whole-of-government” approach to these issues.
This approach must include, crucially, our judiciary who must bot develop a deep grasp of refugee law and help us interpret refugee jurisprudence in a manner that ensures that we avoid the above-mentioned pitfalls.
The judiciary, respectfully, should give greater consideration to the executive and legislature, by giving greater understanding, weight and deference to the considerations which inform our policies and laws, when adjudicating cases.
In the same vein, we appreciate the institutional limits within which the judiciary necessarily performs its functions.
Judges are confined to deal with the exceptions rather than the rule.
Immigration is the hard face of sovereignty and requires hard choices to be made.
Unfortunately, we do not yet live in a borderless world.
Whether or not such a world is desirable, South Africa should certainly not be placed in a position – either by prospective migrants or own judiciary – to pilot a borderless world on our own without other countries, especially countries of origin and our neighbours, sharing responsibility and the burden.
I have no sovereign right to reside and work in the UK, France, Sweden, Russia, China or any other country I might one day want to migrate to.
If I want to reside in these countries, I need to state my case – from outside – request permission to enter, be given terms on which I may enter, and comply with those terms.
And so it is for South Africa.
The only exception is if I have a well-founded fear of persecution in South Africa on protected grounds.
This is a genuine gesture of compassion by a state, not a backdoor to be exploited.
So in conclusion, it is our view, from long experience managing immigration, asylum-seekers and refugees under trying circumstances, and analysing these challenges, that our immigration and refugee policies must be better aligned with one another.
Immigration policy must better respond to economic migration from SADC generally and our neighbours particularly, and refugee policy must cater to and protect asylum seekers and refugees, without pulling prospective migrants out of the mainstream immigration process.
Not doing so has enormous negative consequences for the management of international migration in a way which enhances our development and social cohesion.
As we present proposals to this end, in terms of policy and legislation, we hope that judges and refugee law practitioners will thoughtfully consider the relationship between immigration and refugee management, and partner with us to find solutions which advance both.
I thank you.