In April 2022, a video of Home Affairs Minister Aaron Motsoaledi launching a stinging attack on illegal foreign nationals went viral on social media platforms. In the video, the minister is heard saying that South Africa is the only country in the world that accepts “rascals” and “low-lifes”.
Some may say the minister was just brutally honest about how he, or by extension the government, felt about foreign immigrants or fellow African foreign nationals (referred to as “illegal foreigners” or “economic migrants”) in the country.
He further said he would only step down when these people (including illegal or undocumented foreigners) were all arrested, jailed, and the keys thrown away. This statement could potentially fuel xenophobic violence against innocent, poor foreign nationals, even though the minister said that he would never keep quiet, despite xenophobic incitement.
The minister’s remark is, however, untrue. South Africa does not accept rascals. Neither does it generally accept indigent or poor foreign nationals.
As we celebrated World Refugee Day on 20 June, we should also keep in mind that the issue of a high number of undesirable foreign nationals hinges on the inability of the state to implement effectively the rules and principles of immigration law, on the one hand, and refugee law, on the other.
It has also transpired that some unprofessional and unpatriotic immigration officers put their own interests above national interests when they accept bribes to allow the so-called “rascals” into the country.
Failing in its duties
The minister must accept he heads a corrupt department that is failing in its duties. For example, owing to insufficient material and human resources, the department’s asylum system has, over a decade, faced backlog problems that have led to the claims of over 153 000 asylum-seekers becoming stuck in the system.
Furthermore, the department has turned these asylum seekers into illegal foreigners when it closed the Refugee Reception Offices (RROs) in Port Elizabeth and Cape Town in 2011 and 2012 respectively; when it refused to accept applications of delayed applicants; when it failed to renew the permits of those asylum seekers who are awaiting the outcome of judicial reviews; or when it didn’t want to re-issue permits to those who were arbitrarily detained.
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Regarding the closure of RROs, it is true that poor and vulnerable asylum seekers were unable to travel from these cities to Durban, Pretoria or Musina every three months for extension or renewal of their permits. Although the RRO in Port Elizabeth was reopened in 2018 after litigation, the one in Cape Town remains closed – despite a court order to reopen – for new asylum applications or for asylum seekers who filed their applications somewhere else in the country.
Other foreign nationals, who are becoming illegal in the country, are Zimbabweans, whose special dispensation permits were withdrawn.
The law and rascals
Pursuant to the provisions of immigration law, foreign nationals, who are believed or suspected to be rascals, low-lifes, fugitives or criminals, cannot be issued with a visa.
They fall under the category of prohibited persons and must be apprehended for deportation if they are tracked down in the Republic. Conversely, indigent or economic migrants fall under the category of “undesirable people”, a term that refers to any foreign national, who is or is likely to become a public charge.
It follows that a visa is issued to a foreign national on condition that the holder does not become an undesirable person. Undesirability further includes a foreign national who has overstayed the prescribed number of times or who has been ordered to leave the country. Undesirability renders a foreign national declared an illegal foreign national. Both criminality and poverty render foreign nationals undesirable or illegal to stay in the Republic.
The term “illegal foreign national” is defined in such a way that it refers to a foreign national who contravened the provisions of immigration law. If foreign nationals have committed serious crimes inside or outside of the Republic or if they are in the Republic without any financial means or skills to support themselves and their families, they have contravened the provisions of the Immigration Act 13 of 2002 (as amended) and, thus, become illegal foreign nationals.
The government is, therefore, mandated by immigration law to take steps to prevent the entry of illegal foreign nationals into the Republic and to facilitate the tracing and identification of illegal foreign nationals in, and their removal from, the Republic. This approach is necessary for national security, public order and self-preservation.
Having said that, national resources must largely be distributed for the benefits of citizens, in that foreign nationals can become a public charge if they cannot support themselves and their dependents and, thus, in dire need of state support. This state support comes in different ways, including social grants, free healthcare services, free basic education, financial student assistance, etc.
Indigent and poor foreign nationals are admitted in the country simply because the condition of self-sufficiency is not absolute. Accordingly, immigration law provides for certain exceptions. The rule of self-sufficiency is, in principle, relaxed to allow asylum seekers to enter the Republic.
Some foreign nationals are exempted from this rule because the South African government has concluded bilateral agreements with their home governments, or it is a desirable thing to do. For example, special dispensation permits were granted to former Angolan and Mozambican refugees as well as Zimbabwean asylum seekers.
More fundamentally, asylum seekers are admitted to the country on humanitarian grounds and on an international understanding that they should be assisted to restore normalcy to their lives or to alleviate their misery and suffering. This is the reason why the Refugees Act 130 of 1998 seeks to integrate refugees into South African society and allows them to have access to the aforementioned state support. However, only asylum seekers who are recognised as bona fide refugees can have access to social grants.
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Foreign nationals, who are holders of special dispensation permits, are also exempted from certain immigration conditions that make it difficult for them to enter, stay, study, work or to start a business in the Republic. Owing to their socio-economic vulnerabilities, they can have access to subsidised public services.
Thus far, foreign nationals with permanent resident status can have access to most public services, including social grants and housing, and those who want to study can apply for financial assistance through the National Student Financial Aid Scheme (NSFAS).
Having said that, the government should accept its responsibilities arising from extending rights and benefits to certain foreign nationals. It should implement its laws and policies without xenophobic bias.
Regard is given, however, to the fact that South Africa has also porous borders, through which foreign nationals enter the country illegally and then use or abuse the asylum system to regularise their stay, work and study here. The government sought to resolve this issue by establishing the Border Management Authority to control the border and to prevent rascals from entering the country.
The Department of Home Affairs should work to ensure that genuine asylum seekers have access to the asylum system and that illegal foreigners, especially those who sidestepped the immigration system because they do not meet the criteria of admission, are traced and apprehended.
The department should refrain from taking unreasonable steps that will render foreign nationals illegal, such as the closure of RROs, disregarding court orders, unnecessary delays in extending permits, and withdrawing certain permits without alternative measures.
Instead, foreign nationals’ right to documentation must be upheld and respected because documentation is key to combating illegality.
We know that political rhetoric fuels xenophobia and deceives the population into believing that the government is working hard to protect its sovereignty against rascals. Politicians should refrain from statements that could lead people to take the law into their own hands and thus harm innocent foreign nationals who are allowed to stay in the country
Phrases, such as “arresting and jailing foreigners” and “throwing away the keys”, are not only xenophobic, but also a symptom of a dictatorship. The due process of rule of law should be observed in all matters that may violate the dignity of a person or deprive that person of humane treatment. Calling indigent and poor foreign nationals rascals is an affront to human dignity that the Constitution seeks to protect.
– Dr Callixte Kavuro is a postdoctoral research fellow in the Department of Public Law at Stellenbosch University.