White Paper ‘overestimates the role played by the Refugee Convention’ – Helen Suzman Foundation’s Fakir

The Helen Suzman Foundation yesterday rejected the finalisation of the White Paper on citizenship, immigration and refugee protection by the department of home affairs, which seeks to tighten South Africa’s immigration and refugee laws.

The think-tank noted the title – Paper on Citizenship, Immigration and Refugee Protection: Towards a Complete Overhaul of the Migration System in South Africa – suggested a significant overhaul of the migration legal framework but provided little direction to potential commentators regarding the specific legislative changes.

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This after Home Affairs Minister Aaron Motsoaledi’s media briefing on Wednesday on new policy, which would completely overhaul the migration system.

The White Paper announced changes to regulations regarding citizenship, and proposed withdrawal from the 1951 Refugee Convention and its 1967 Protocol.

The foundation’s acting director, Naseema Fakir, said to exit the Refugee Convention and its Protocol, SA would have to denounce them in terms of Articles 44 and 9, respectively, by notifying the UN’s secretary-general.

She said domestic law required more to lawfully exit a treaty and parliament must first approve the withdrawal from ratified treaties and repeal any domestic implementing legislation.

Fakir said this was a necessary implication of parliament’s role set out in Section 231 (2) of the constitution in ratifying treaties in the first place.

“Even if parliamentary approval is in the offing, Article 42 of the Refugee Convention does not allow states to make reservations against Article 33, which enshrines the principle of non-refoulement,” she said.

“This is a fundamental norm of refugee law the world over that protects asylum seekers from being sent back to the country from which they have fled, before it is lawfully determined that it is safe to do so.”

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Fakir added this was an inconvenient truth the White Paper does not acknowledge when it suggests exiting the Refugee Convention and the Refugee Protocol can work as a first step towards tightening South Africa’s legal regime for protecting refugees.

“The White Paper overestimates the role played by the Refugee Convention and the Refugee Protocol in shaping our courts’ interpretation of South Africa’s legal framework for refugee protection,” said Fakir.

Motsoaledi said the White Paper was now an official policy approved by Cabinet and gazetted.

He said the next step was to draft a Bill which would be passed through the parliamentary procedures before it was signed as law.

Motsoaledi said this would discourage economic immigrants from entering South Africa pretending to be asylum seekers.