The role of civil society in promoting greater social justice for forced migrants living in the inner city of Johannesburg

2.1.2. Categories of Forced Migrants

Three categories of people are broadly included in the phenomenon of forced migration,

namely, refugees, internally displaced persons (IDP), and asylum seekers.

a) Refugees.

The 1951 UN Convention relating to the status of refugees and its protocol of 1967, state that

the term `refugee' refers to any person who has been forced to leave his/her country of origin,

fearing persecution «for the reasons of race, religion, nationality, membership of a particular

social group or political opinion» (UN, 1951). Analysing this definition, Turton (2003) suggests two main criteria, namely `persecution' and `alienage', which allow him to define a refugee as «a person who has crossed an international border because of a well-founded fear

of being persecuted in his or her state of origin» (Turton, 2003: 12).

This definition can also be found in the OAU's 1969 Convention governing the specific characteristics of refugees in Africa, and in the 1984 Cartagena Declaration for the Central American Region. Inspired by the 1951 UN convention, the two documents enlarge the causes

of forced migration by including issues such as external aggression or occupation, foreign domination, generalised violence, internal conflicts (civil wars), mass violation of human rights or other circumstances which can seriously disturb public order (ibid, 2003: 12).

In 2004, the UNHCR counted over 4.2 million refugees in Africa, second only to Asia (www.southafrica.info, 2004); while, in 2002, the South African Department of Home Affairs (DHA) recognised 23,000 resident refugees, predominantly in SA's urban regions who survive largely without state assistance (Rulashe, 2004). It is important to note that, in SA, delays in determining refugee status are one of the main challenges facing FMs. According to Rulashe (2004), between 2002 and 2004, the UNHCR trained 40 lawyers to help the South African DHA to clear its backlog of cases, which piled up again «after many of the lawyers left for greener pastures». In 2004, there were some 52, 000 cases awaiting status determination in SA (ibid, 2004).

During the apartheid era, people who came to SA seeking asylum were not recognised as refugees by the South African government, as the country had not ratified the UN and the OAU conventions relating to the status of refugee. The Human Rights Watch (HRW) states that the so-called Aliens Control Act of 1991 was the only piece of legislation that regulated

the movement of non-nationals into SA until 1993, when the country signed a first «basic agreement» with the UNHCR (HRW, 2005). Amended in 1995, the «Aliens Control Act dealt with refugees and asylum seekers in an ad hoc manner». No statutory basis for determining refugee status existed. According to the HRW, all procedures were contained in internal circulars of the DHA until 1998, when the country promulgated the 1998 Refugee Act, Number 130 (ibid, 2005). This Act, which came into force after its regulations were published

in April 2000, defines the legal standards for refugee status, establishes the state's asylum

procedures, and sets out the rights and obligations of refugees and asylum seekers. Some

sections of this legislation give a few advantages to FMs, particularly refugees, such as the access to the rights contained in the Bill of Rights (except the rights reserved for the citizens,

for example the right to vote), the right to apply for an immigration permit (formerly called permanent residence) after living in the country for five years, the right to get an identity document and a passport (see section 26 of the Refugee Act), the right to work, and the right

to access health care services and primary education facilities (Para Legal Advice, 2003; and

SA, 1998 26).

It is important to note that, in spite of comprehensive laws contained in the Refugees Act and other legislations, many FMs still continue to face significant obstacles to their right to seek and enjoy effective protection in SA, as I will show later in this report.

b. Internally Displaced Persons (IDPs)

The term IDP refers to a person who has been forced to move from one place to another, without crossing an international border, mainly because of issues such as natural disasters (drought, volcanic eruption and so on), or as a result of civil wars. Such a person is technically still under the protection of the government of his/her own country and he/she is not, therefore, in a refugee situation (Turton, 2003: 13). In some cases, IDPs can be assisted

by the UNHCR at under the request of their government.

This report, however, does not deal with this category of FMs, as mentioned in Chapter One. For this reason, my attention will not be focused on issues facing this category of FMs.

c. Asylum Seekers

The term `asylum seeker' refers to people who have made a claim for asylum but whose cases have not yet been determined (Turton, 2003: 14). Generally, asylum seekers flee their countries of origin because of political conflicts, wars, and/or persecution (Para Legal Advice,

2003). According to Turton, this category of FMs has emerged in response to the growing difficulties of making clear distinctions between people moving for political, as opposed to economic, reasons, «since political upheavals usually go hand in hand with violent conflict,

economic distress and human rights abuses» (Turton, 2003: 14). In Africa, as elsewhere in the

world, it become very difficult, in practice, to separate asylum seekers from economic

migrants, and yet such a separation is seen by governments as «an essential condition of an effective asylum and immigration policy» (ibid, 2003).

In SA, asylum seekers are the most vulnerable category of FMs who face many challenges, including xenophobia, marginalisation, discrimination (from the work place and public hospital), and exclusion. With regards to the exclusion, it is important to note that the SA Refugee Act, at the time of its publication in 1998, officially excluded asylum seekers from

the basic right to work and study. The South African Human Rights Commissioner and other CSOs dealing with FMs challenged this clause in the Act for a very long time (Para Legal Advice, 2003). As a result of this challenge, asylum seekers can now study and work in SA, but these rights seem to be ignored by many organisations and companies, including the state's agencies and departments.

Besides the above-mentioned challenges, there is also the issue regarding the backlog of asylum applications. In SA, a person can remain an asylum seeker for more than one or two years (even five years) without gaining a refugee status. And yet, according to the 1998

Refugee Act «an asylum seeker application should be adjudicated within 180 days, including

the appeal» (www.southafrican.info, 2004), but this rarely happens. The HRW (2005) believes that «poor planning and inadequate preparation for the coming into force of the Refugee Act has largely been responsible for the backlog of asylum applications» (HRW,

2005). The state has, therefore, not adequately manage the transfer of asylum applications issued under the Aliens Control Act to the new system, and few immigration officials are hired and trained to administer the 1998 Refugee Act (ibid, 2005).

This section highlighted the meaning and different types of FMs, as well as certain challenges they face in SA due to the poor planning and the inadequate preparation for the coming into force of the 130 Refugee Act. This confirms how much FMs suffer from social injustices in

the South African context that can only be addressed if the government can become more aware and respond more efficiently to the claims of FMs. The next section will consider the relationships between planning and forced migration, particularly with regard to the

promotion of social justice for migrants.