Controversial amendments to South Africa's immigration laws may raise new barriers for large numbers of migrants and asylum seekers who come to the country in search of a better life.
The Immigration Amendment Bill was passed by the National Assembly on 22 March, despite arguments from opposition parties and civil society groups that it could lead to genuine asylum seekers being rendered illegal and facing up to four years in jail.
Asylum seekers currently have 14 days after entering the country to go to a refugee reception centre and make a formal application for asylum. The amended bill, which only needs approval by the National Council of Provinces to become law, reduces this period to five days.
Roni Amit, a senior researcher at the African Centre for Migration and Society at Witwatersrand University in Johannesburg, pointed out that even 14 days was often not enough time for people to reach a refugee centre, of which there only seven in the country.
"A lot of times, crossing the border can be very traumatic - people are often attacked or detained; it takes them a while to figure out what they need to do and where they need to go. They might also not have money for transport," she told IRIN.
Jacob van Garderen, National Director of Lawyers for Human Rights, noted that "sometimes it takes [asylum seekers] days to get through queues just to reach the front door of [a refugee centre]."
An additional amendment will require officials at border posts to make an initial assessment of whether an individual is eligible to apply for asylum. Amit said it was unclear what this pre-screening process would consist of, but it was "very problematic that it would be done by immigration officials with no training in asylum law."
The UN Refugee Agency (UNHCR) also raised concerns about the new legislation, but spokesperson Tina Ghelli said they had taken note of assurances given by Home Affairs Minister Dr Nkosazana Dlamini Zuma when addressing Parliament that the pre-screening process would consist only of a criminal background check, and that no one would be penalized for failing to apply for asylum within five days if the delay was the fault of the Home Affairs Department.
Asylum seekers in limbo
South Africa gets the largest number of asylum applications in the world, with over 200,000 received in 2009 alone, according to UNHCR. A backlog of applications, estimated at 400,000 by Braam Hanekom of People Against Suffering, Oppression and Poverty (PASSOP), a Cape Town-based NGO, means that individuals often wait up to four years for a decision on their refugee status.
During the long wait, asylum seekers have the right to work and access basic social services, a policy that Ghelli described as generous compared to other countries in the region, where asylum seekers are often confined to camps.
However, high levels of unemployment and widespread xenophobia mean asylum seekers often have difficulty finding jobs and making use of public services.
Most of the backlog is made up of applications from Zimbabweans fleeing their country's economic and political crises. In April 2009 the South African government announced a moratorium on deporting undocumented Zimbabwean migrants and began issuing 90-day visas to them, but in September 2010 they were given until the end of that year to apply for work, business or study permits, or face deportation once more.
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Home Affairs extended the moratorium until 1 August 2011 to allow the Zimbabwean authorities more time to meet the demand for passports and other documents required to process applications. Nevertheless, Wits University’s Amit was sceptical that all 275,000 applications would be processed in time.
Research by Amit and her colleagues showed that the brief period allocated to the process and poor communication about what was required meant that many Zimbabweans were excluded.
"A lot of them didn't have passports and couldn't get them, and didn't know that that requirement had been relaxed in the last two weeks," she told IRIN.
PASSOP’s Hanekom said amendments to the Immigration Act imposing harsher penalties for people found guilty of violating immigration laws would encourage many more migrants "to go underground".
Previously, the legislation stipulated a maximum penalty of nine months in jail for illegal immigrants who failed to leave the country when ordered to do so, whereas the amended act prescribes a jail term of two to four years.
Hanekom said much would depend on how the new legislation was interpreted on the ground. "For asylum seekers and for immigrants, it paves the path towards the country being able to deport very large numbers, but it'll depend on political decisions and implementation."