Part 3 Summary of Findings, Conclusions and
2.3 Globalisation, Turbulent Migration in Southern Africa and Migration Governance in the Post-apartheid Period
2.3.2 Cross-border Migrants and Migration Governance in Post- apartheid South Africa
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and some entitlements to legal, social and economic integration. The OAU Convention of 1969 expands this definition to include refugees from war or civil war where individual persecution cannot be proven – often the case in African contexts – but affords refugees, once accepted, the same rights as those enshrined in the UN Convention. Still, Black, Crush and Peberdy (2006:103) point out that in the entire region, ‘support for refugees and asylum seekers is limited’ and express concern that ‘the overriding focus of most [national policies and] legal instruments is enforcement, control and exclusion’ (Black, Crush and Peberdy 2006:102), while the predominant practice is to accommodate refugees in UN-administered camps (Landau 2006; Makhema 2009).
In short, the causes of contemporary migration in Southern Africa are multiple and intertwined, yet responses of receiving countries can be divided into those that focus on what is presumed to be voluntary – i.e. economic – migration, and those that focus on what is understood to be forced migration – i.e. induced by violence. In both regards, responses at the level of treaty, legislation and policy formulation can be distinguished from those at the level of discourse and practice. These two levels are not necessarily in sync, at times even working at cross-purposes. In the ensuing dynamics, it appears that economic and ideological considerations are important factors in receiving countries’ governance of cross-border migration.
2.3.2 Cross-border Migrants and Migration Governance in Post-
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of the spectrum, there is what is often referred to as ‘brain drain’ (Crush and Williams 2010;
Segatti 2011) – generally a legalised form of migration which may, but need not necessarily, result in permanent residence arrangements. On the other end of the spectrum are those who are often subsumed under the categories, ‘irregular migration’ and ‘undocumented migrants’ (Crush and Williams 2010:19). While unskilled and poorly educated migrants are most likely to be found in this group, it does not follow that all or even most undocumented migrants are unskilled or poorly educated. Between the two poles is a diverse group of people who hold a range of temporary permits for specified purposes such as tourism, work or study, and who may or may not be in possession of needed skills. After expiry of their visas, they may or may not return to their countries of origin, renew their permits or overstay, at which point their sojourn, too, becomes irregular (Crush and Williams 2010; Crush 2011).
Meanwhile, those seeking asylum in terms of the above-named refugee conventions include people ranging from the well-educated to the semi- and unskilled.
The actual number of cross-border migrants in South Africa is difficult to establish, mainly on account of ‘inadequate data collection systems’ (Crush 2011:3). However, Crush and Williams (2010:6-7) contend that legal entries counted at border posts give some sense of the magnitude of in-migration, stating that, ‘the total number of legal entrants ... from the rest of Africa rose from less than a million in 1990 to 3.8 million in 1996 and 7.4 million in 2008’. With regard to undocumented migrants who obviously elude port of entry counts, researchers rely on deportation statistics to gain some sense of the number of undocumented migrants living in South Africa. Crush (2011) estimates that between 1990 and 2010 over 3 million people have been deported. The most accurate migration figures available are those published by the United Nations High Commissioner on Refugees (UNHCR) who reports that between 2006 and 2011, South Africa received the world’s highest number of individual asylum applications per annum, a number that peaked in 2009 with a total of 222,300 claims (UNHCR 2013a).
Thereafter, the number of new applications declined significantly (UNHCR 2013a), and South Africa now hosts a total of about 315 000 registered asylum seekers and refugees (UNHCR 2015) – down from just under half a million in previous years (UNHCR 2013b). The UNHCR (2013b) explains the phenomenon as follows:
The asylum and immigration system … is currently undergoing reforms. This has made access to asylum challenging, particularly for individuals from non-neighbouring countries … Tighter border controls … have also played a role in lessening the number of applications.
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In other words, the decline in numbers need not be equated with a declining interest in, or even a de facto reduction of people migrating to, South Africa. Figure 2.1 visualises the development of asylum applications in South Africa between 2002 and 2012.
Figure 2.1: Asylum claims in South Africa 2002-2012 (UNHCR 2013a:26)
With work in the mines no longer a readily available option, the majority of migrants at the lower end of the economic spectrum, including most asylum seekers and refugees, settle in South Africa’s urban centres, particularly in the cities of Cape Town, Durban, Johannesburg and Port Elizabeth, where they are often absorbed into the cities’ informal economies (Crush and Williams 2010; UNHCR 2011a, 2012, 2013b). Since 1994, unemployment in South Africa has remained well above 30%, the country continues to be rated as one of the most unequal societies in the world, and poverty is said by some to have increased since the end of apartheid (Hoogeveen & Özler 2005; Terreblanche 2012). In addition, the end of apartheid- era influx controls has led to unprecedented levels of domestic, rural-urban migration. All these factors have contributed to the growth of those cities in which cross-border migrants tend to settle (Landau, Segatti and Misago 2011). As a result, South Africa’s urban environments are characterised inter alia by escalating levels of poverty and degradation at
250,000 200,000 150,000 100,000 50,000
‘02 ‘03 ‘04 ‘05 ‘06 ‘07 ‘08 ‘09 ‘10 ‘11 ‘12 Zimbabweans Non-Zimbabweans
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the same time as local authorities try to meet their governance mandates within considerable budgetary constraints (Beall, Crankshaw and Parnell 2000; Simone 2004; Landau, Segatti and Misago 2011). Access to affordable housing is extremely limited in overcrowded inner city areas (UNHCR 2012, 2013b). Previous research also suggests that fair access to health and education is far from assured (Landau 2006). So while South Africa’s inner city residents may be diverse in terms of origin and mobility, many share the important commonality of leading precarious lives.
How is the South African state responding to the complex challenges emanating from the diversity of migrants seeking to enter and often to remain in the country, and to these entrants’ diverse abilities to negotiate, integrate, and survive in South Africa’s evolving urban environments? Crush and Williams (2010:15) note that initially, the post-apartheid government, ‘under political pressure to address South Africa’s chronic unemployment problem’, tightened application requirements for, and drastically reduced renewals of, temporary work permits. The adoption of the Immigration Act No. 13 of 2002 signified that thereafter, ‘the import of skills’ had become ‘a priority’ (Crush and Williams 2010:18). In other words, post-apartheid management of labour migrants has focused on those who were already employed or for whom there was an expressed need in South Africa’s formal economy, and favoured the highly qualified. In this respect, South Africa’s approach to migration governance resembles that of other migrant-receiving countries. Yet, South Africa still has to ratify the UN’s 1990 Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (UNESCO 2005; OHCHR n.d.). As the Convention is actually in concordance with the country’s Constitution and legislation, this omission might be linked less to a disagreement with its contents than to a lack of urgency and possibly, a measure of political expediency on the part of the South African state (Williams, Crush and Nicholson 2006; Crush and Ramachandran 2009). I return to this observation in Section 2.4.
Regarding the management of people claiming refugee status, South Africa ratified the UN and the OAU Refugee Conventions as early as 1995 (Vigneswaran 2008), that is, only one year into the country’s post-apartheid dispensation. The Refugees Act No. 130 of 1998 is closely aligned with these conventions. Departing from predominant practices in sub-Saharan Africa, the country pursues a policy of urban self-settlement (Landau 2006; Makhema 2009), of processing asylum claims itself rather than delegating this responsibility to the UNHCR, and
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of adjudicating these claims on an individual rather than on a group basis (Vigneswaran 2008).
The department tasked with the responsibility of administering refugee claims and status determination is the Department of Home Affairs (DHA). Darshan Vigneswaran (2008:3) describes the system as ‘Global North-style … albeit located in the Global South’.
Generally, South Africa’s Refugees Act has been lauded for creating the necessary legal environment for effective refugee protection, including basic human rights, minimal protection and, more recently, the right to work for both refugees and asylum seekers (Landau 2006; Vigneswaran 2008; Makhema 2009; Segatti 2011). From the onset however, implementing the Act’s provisions has proved difficult. On the one hand, corruption is widespread at the country’s border posts, detention centres, police stations and DHA offices (Crush and Peberdy 2003; Human Rights Watch 2005; Landau 2006; Black, Crush and Peberdy 2006; Crush, Grant and Frayne 2007; Vigneswaran 2008, 2011; Landau, Segatti and Misago 2011; Segatti 2011). On the other hand, there is emerging evidence of civil servants actively and intentionally working to undermine the provisions of the Act, which is regarded as giving migrants ‘an easy ride’ into the country (Vigneswaran 2008, 2011:114). Drawing on his ethnographic research, Vigneswaran (2011:112) describes how –
Many officials simply assume that it is their obligation to shore up South Africa’s porous borders by deterring, undermining, and denying applications for asylum in South Africa. Often this deterrence does not take the ‘hard’ form of citing a specific law that makes an individual ineligible to stay. Instead, officials erect ‘soft’ barriers, including unnecessary delays, development of new ‘procedures’, and failure to provide assistance during the labyrinthine application process (Vigneswaran 2011:112).
These challenges are discussed further in Section 2.4 in relation to the phenomena of xenophobia in South Africa. Yet, due process in the award of refugee permits is not all that matters when it comes to living in a foreign land. Leading a dignified existence also requires, amongst other things, safety from violence and crime, the possibility of earning a living, appropriate and affordable shelter, as well as access to education, health, a social safety net and other welfare provisions in times of need. With regard to social protection, the South African government has allowed recognised refugees progressive access to South Africa’s social security system, including the right to apply for the South African Old Age Pension, the Disability Grant, and the Child Support Grant (LHR 2012). While there is a dearth of dedicated research, anecdotal evidence has emerged from the South African Social Security Agency (SASSA) alleging incidents of undermining, misdirecting and ‘creating hurdles', which
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applicants perceived as attempts to obstruct access to much-needed grants (personal communication; also see Section 2.4).
Meanwhile, there seems to be some level of confusion as to who is ultimately responsible for the welfare of refugees and asylum seekers. On the one hand, Jeff Handmaker (2001) and Loren Landau (2006) note that South Africa’s refugee policy does not envisage any specific responsibility on the part of the South African government in relation to asylum seekers and refugees beyond status determination, arrest and deportation, resembling thus a laissez-faire approach to their protection, integration and care (Makhema 2009). The UNHCR on the other hand is quite explicit that they, too, have no mandate to ensure the well-being of asylum seekers and refugees, stating that –
States are primarily responsible for the provision of international refugee protection. UNHCR works closely with governments to ensure that persons of concern are protected. However, UNHCR is not a substitute for government responsibility (UNHCR 2011b:4-5).
This confusion notwithstanding, the UNHCR is funding a range of activities within South African territory, including co-ordinating functions, advocacy, training, community development, legal advice and individual support that incorporates ‘promotion of self- reliance’ and ‘emergency assistance to vulnerable refugees and asylum seekers’ (UNHCR 2011b:16). All these functions are performed by a group of fewer than ten ‘implementing partners’ (UNHCR 2011b:20), that is, non-government organisations located in South Africa’s main urban centres and refugee reception points. The UNHCR takes direct responsibility for activities of ‘procurement, transport and storage, RSD [refugee status determination] related activities, HIV/AIDS related activities and prevention of statelessness in Southern Africa’
(UNHCR 2011a:22). In total, UNHCR country reports on South Africa suggest, about 20% of all
‘persons of concern’ receive UN support (see for example UNHCR 2011a, 2012, 2013b, 2015).
While this might impress as a substantial number, the figure does not reveal much about the type, duration, perceived relevance or impact of assistance in the lives of the beneficiaries, nor does it say anything about the total number of persons who required but did not receive, support. In addition, questions have been raised concerning the appropriateness, outlook and effectiveness of these interventions (Landau and Duponchel 2011).
The image of South Africa’s contemporary system of migration governance that emerges at this point is more complex – and contradictory – than that of the preceding regime. Two key
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observations have been made. Firstly, as a newly established nation state and constitutional democracy, post-apartheid South Africa has enshrined principles of human rights and due process into its legislative, administrative and policy frameworks. Yet, there are concerns that this overall change in orientation and approach has not filtered down sufficiently to the level at which civil servants are tasked with implementing the new legal and policy regime.
Secondly, even though the post-apartheid emphasis on due process and human rights serves to constrain previous overt and excessive forms of labour exploitation, it appears that in the current context of economic globalisation, the preceding regime’s emphasis on migrants’
economic utility has not changed. Yet, as noted in Section 2.2, South Africa’s formal economy has become progressively less labour, and more capital intensive, and thus lost much of its former ability to absorb migrants into mainstream labour markets. Consequently, South Africa’s main urban centres, where informal economic opportunities seem more readily available than elsewhere, have replaced South Africa’s mines as key destination points for both domestic and cross-border migrants. In the process, these urban centres have become marked by high population density, exploitative rental markets and structural degeneration, where the socio-economic needs of foreign and local, resident and mobile populations, are not met, and where access to public resources and services, though formally extended to all South Africans and certain cross-border migrants, is not assured. Thus, it is left largely to urban residents themselves to find ways and means of getting by. In this regard, the post- apartheid state’s approach to migration governance might be interpreted as not just a laissez- faire approach, but as a government confronting a field which somewhat eludes governability in that in important respects, the South African state appears institutionally weaker than is required to resolve the problems facing both its local and foreign residents.