Protection for Sale: The big South African asylum racket

In July 2015, the African Centre for Migration and Society (ACMS) and Lawyers for Human Rights (LHR) released a critical exposé that discloses a pattern of widespread and systematic corruption at all levels of the South African asylum system, involving a wide range of officials including security guards, interpreters, refugee officers, and police officers. At the end of 2014 there were 369,393 asylum seekers in South Africa; the highest number of asylum seekers in any single country worldwide. A clue to why such huge numbers of un-processed asylum are tolerated in a single country may lie with the level of rent-seeking behaviour by state officials within the system.

Advice on the South African Home Affairs website directs: “There is no fee payable for eligibility and status determination interviews as well as issuance or renewal of section 22, section 24 and refugee ID. Service to asylum seekers and refugees is free of charge. All asylum seeker are encouraged to report any person who exhorts money from them.” The report, Queue Here for Corruption, reveals that the link between protection and payment begins at the country’s border crossing points and stretches to the ability to access the relevant documents and necessary renewals, with the majority of applicants reportedly paying anywhere from R400-R2500 [US$30-$198] for access to services at Refugee Reception Offices. This is just one stage of many. And with asylum decision process taking an average of 2.8 years, the avenues for repeated extortion are multiplied. According to this report, corruption is not always explicit and when fines are applied to those who fail to comply with rule, the ‘fines’ too may be another form of bribe. One respondent in the report said, “If you don’t pay you don’t get in like me. You are waiting. They did not ask me for money but they did ask others every day inside and outside. They make us wait for weeks in order to fine us later.”

Such extensive corruption is a worry for any country, but particularly for South Africa, which is a major destination for asylum seekers from all over the world. According to UNHCR data, South Africa received 84,174 applications for asylum in 2014, ranking as the premier African and 7th global[1]  protection destination in that year. The country is a particularly popular destination for asylum seekers and migrants from the Horn of Africa, who traverse several countries on the eastern coastline of Africa, eventually making border crossings into the country through Zimbabwe and Mozambique. The number of undocumented migrants crossing into South Africa is unknown, but conservative estimates place this number anywhere between three and six million people.

An analysis of the UNHCR data shows that Eritrean, Ethiopian and Somali nationals made up 21 percent (17,797) of asylum applications in 2014. For Ethiopians the southern route is particularly popular, ranking as the second most populous group seeking asylum in South Africa after Zimbabweans. Data from the Nairobi-based 4Mi project indicates that virtually all irregular migrants register as asylum seekers soon after arriving in South Africa. Unlike countries like Kenya and Tanzania there are major advantages to registering and having the permit that comes with registration. Reportedly, ‘agents’ and facilitators will deal with the payments on behalf of the applicants so individual migrants will not be directly make payments to corrupt officials.

In contrast to many countries around the world where asylum seekers are physically confined to camps, are denied the right to work, and where their opportunities for economic betterment remain as elusive as in the countries they fled, South Africa has a very liberal approach that may be contributing as a pull factor for genuine and fraudulent asylum seekers alike. For those who manage to navigate the bribery hurdles and complete the registration process, a Section 22 permit (also known as an “asylum seeker permit”) entitles the bearer to most of the same rights that South African citizens have, including the right to work, study and access public services. Moreover, a landmark ruling[2] in the South African High Court in 2003 compelled the Minister of Home Affairs to allow asylum seeker permit holders to apply for temporary and/or permanent residence without giving up their status.

While the majority of asylum claims lodged in South Africa are assumed to be genuine, the fraudulent use of asylum claims by economic migrants is well acknowledged. 79 per cent of asylum applications were rejected in 2014, highlighting the extent to which the framework is relied upon by those who do not qualify for such protection. The odds for gambling with such a system are however highly favourable. For those that are rejected, Section 34 of the Immigration Act 2002 prescribes the grounds and the procedures for the detention and deportation of “illegal foreigners”. Rejected asylum seekers are detained in the Lindela detention centre in Krugersdorp, west of Johannesburg, as they await deportation to their countries of origin.

There are no readily available comprehensive statistics of recent deportations, but for those with enough financial capital, freedom can apparently be bought for between R600-800 [US$100-133]. An inmate interviewed in Lindela by IRIN stated: “Deportation is for those who do not have money. Those who can pay police or immigration officers never get registered; they just wait for relatives to bring the money. In such cases, a detainee is collected by special arrangement, on the pretext that he is going for further questioning or to court, and freed on the way. If I had money I wouldn’t be here.” Such migrants reportedly go underground and pay state officers a bribe to look the other way if they are uncovered. Of the applicants interviewed in the joint ACMS-LHR report, the average asylum processing time was 2.8 years, extensively over the 180 day recommended timeline in government regulations. At least 14 per cent of applicants had been waiting at least 5 years, with the longest waiting for more than 18 years. For those acquiring refugee status, none of those returned in 2014 were from Eritrea, Ethiopia and Somalia. For economic migrants posing as asylum seekers, this gives enough time to live, move and work in South Africa as they organise for onward travel (if desired) to third countries such as Europe and the Americas.

The misuse of the system prejudices those who do have a genuine claim and severely risks narrowing the protection space. The commodification of protection status through the payment of bribes to South African immigration officials can in part be attributed to the knowledge among officials that many economic migrants present a false claim when entering South Africa. A Section 22 permit is available to anyone who is willing to pay for it. As a result, those with genuine claims are effectively denied protection guaranteed to them in national, regional and international instruments, including protection against refoulement if deported or denied entry at the border. The distinction between refugee, asylum seeker, documented and undocumented migrant has become more blurred in recent years. The media and the general population often assimilate all into one group without an understanding of the legal nuances, which would provide those in genuine need with protection. This was true in South Africa earlier this year, where the perception among the general population that any foreigner was an economic threat to their prosperity fuelled xenophobic tensions and outbreak of violence in South African cities. This year’s violence was reminiscent of a series of periodic attacks on foreigners that stems back to the mid-1990s.

The current asylum system in South Africa is very friendly to the short and longer-term interests of irregular migrants from the Horn of Africa and also, it seems, friendly to the state official wanting to make more than his or her salary. Endemic, systemic corruption means state officials in city offices and along the borders benefit from the tens of thousands of applicants who queue annually to register as part of the highly lucrative migration economy that typically involves state officials (police, army, Immigration, Home Affairs) in addition to smugglers who bring migrants into the country. Considering that there were almost 370,000 asylum seekers in South Africa in 2014 it is clear this could be a multi-million racket if all illicit payments could be tracked and grouped. As long as this system works both for the migrants and the authorities it will no doubt continue, and perhaps the question in such a context is not so much why South Africa draws so many migrants, but why it does not pull more.

[1] 1st – Russia (274,361), 2nd – Germany (202,717), 3rd – France (97,591), 4th – USA (96,065), 5th – Sweden (95,370), 6th – Turkey (88,830).

[2] Dabone and others v the Minister of Home Affairs and another (case number 7526/03)

Note: This article originally appeared on the RMMS Horn of Africa website.