Asylum seekers face arrest while they battle broken system

GroundUp visited the Refugee Reception Office in Cape Town on 12 March. Officials told us that new asylum seekers who have a valid visa can apply, but those who do not must wait until the outcome of a court case. Photo: Ashraf Hendricks

• Asylum seekers who do not have passports or valid visas are denied access to the asylum system and face arrest.
• Ongoing court action by the Scalabrini Centre aims to have this declared unconstitutional.
• We spoke to several asylum seekers who have tried numerous times to apply for permits, but have been shown the door.

In 2018, armed forces invaded Fayisa Abo’s village in Hosaina, Ethiopia, killing several of his family members. The 28-year-old fled to Kenya but found it difficult to apply for refugee status and to find work. Some friends told him that South Africa might offer a better life. That same year, he came and settled in Durban.

Despite repeatedly trying to apply for an asylum permit, Abo has been unsuccessful. He told GroundUp that he has been to the refugee centres in Durban and Pretoria several times, but he was turned away each time.

Abo is one of thousands of asylum seekers in South Africa who try to apply for permits but find that they hit a brick wall of bureaucracy. Recent amendments to the Refugees Act – currently being challenged in court by the Scalabrini Centre – have made it more difficult for people to access the asylum system, especially those who do not have valid asylum visas or passports.

Meanwhile, at the shop where Abo does piecemeal work, raids by the police and the Department of Home Affairs have become more frequent. He said that in the past three months, police officers have visited the shop at least once a week.

He has been lucky to escape, he said. “When I came to South Africa, I thought I would be safe, but without papers, it’s not safe.”

Abo’s experience is shared by other asylum seekers who spoke to GroundUp. In 2020, 24-year-old Zemedkun Bekele Bashe fled his home in southern Ethiopia after his brother and sister were gunned down. He too settled in Durban. He has repeatedly tried to apply at the refugee centre there but was also turned away each time. He travelled to the centre in Pretoria, but there too he was not allowed to apply.

Bashe said he was once arrested for not having papers, but his brothers were able to bring in a lawyer to argue that he had come to the country to apply for asylum. Although he was released, he said police still do not understand his situation when they regularly raid the shop where he works. He now hides during raids to avoid arrest.

Tagyng Funga came to South Africa in 2022 after a civil war broke out in his home town in Ethiopia. He has also been unable to apply for asylum.

“They tell us to come back next time every time, but every time we go to the refugee office, nothing changes,” he said.

A Malawian asylum applicant, who says he fled his country because of religious persecution and wishes to stay anonymous, said he has tried ever since the Covid pandemic to get documented. But Home Affairs has repeatedly turned him away.

“On my first visit to Home Affairs, I got there before sunrise, but they told us they had already reached their limit for the day,” he said.

He has narrowly dodged arrest several times.

In Johannesburg, arrests of asylum seekers seem to have intensified, according to Asende Eloco Asel from the refugee organisation Emo ‘ya M’mbembe M’mbondo South Africa.

“Many new applicants who have tried to apply have had to attach letters from human rights lawyers. However, many are without papers, leading to arrests and detention,” said Asel.

Constitutional challenge

In 2018, new amendments to the Refugees Act introduced an additional step in the process. New applicants who lack a valid visa (in other words, they entered the country unlawfully, often for reasons beyond their control), must first undergo an interview with an immigration officer before they can apply for asylum.

During the interview, the applicant must explain why they are in the country unlawfully. If the immigration officer finds they do not have a good reason, the applicant may be arrested and deported.

Last year the Scalabrini Centre in Cape Town took Home Affairs to court to stop arrests and deportations, arguing that the new interview process is unconstitutional, because it blocks access to the asylum system, and it risks sending people back to dangerous situations in their home country.

Scalabrini won a court order interdicting deportations of people who intend to apply for asylum, but not arrests.

The second part of Scalabrini’s court case, in which it argues that the amendments to the Refugees Act are unconstitutional, was heard in the Western Cape High Court in February. Judgment was reserved.

One of the unintended consequences of the Scalabrini court order was that Home Affairs effectively shut down the system to new applicants who do not have a valid visa. Yet arrests appear to have continued unabated.

GroundUp visited the Refugee Reception Office in Cape Town on Wednesday. Officials told us that new asylum seekers with a valid visa can apply, but those who do not must wait until the outcome of the court case. This effectively forces asylum seekers to stay in the country unlawfully, unable to apply for asylum permits and risking arrest at any time.

The Department of Home Affairs was given ample time to comment but had still not done so by the time of publication.

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