By Barbara Whittle

The Immigration and Refugee Law Committee of the Law Society of South Africa (LSSA) submitted comments to the Department of Home Affairs (DHA) in November 2014 on the First Draft Amendment of the Refugees Regulations (Forms and Procedure) issued in terms of the Refugees Act 130 of 1998 (the Act). The purpose of the DHA 1590 Form is to form the basis of a refugee status determination and protection evaluation in order to determine whether someone qualifies to be recognised as a refugee.

The LSSA pointed out that the draft form does not provide the kind of advisory that is both logical and part of international best practice as well as being consistent with the ethos of our constitutional dispensation. The LSSA submitted that, providing such an advisory may help address some of the abuses committed as part of the application process by representatives and others, however well-intentioned, and some instances of applications found to be manifestly unfounded.

According to the LSSA, it would make the task of all concerned a little easier if the application form itself was prefaced by a brief synopsis of the requirements of s 3(a), (b) and (c) of the Act, as well as an advisory as on some of the key provisions relating to applications, including the relevant rights and duties of asylum seekers. The LSSA provided a draft in this regard.

The committee pointed out a number of anomalies in the form, including the following, among others:

It should be clarified as to whether the inquiry about employment in the form refers to the applicant’s employment in South Africa or elsewhere. If the form seeks employment details ‘elsewhere’, the LSSA expressed concern that, whereas the logic for seeking this information is not immediately clear or stated in the form, applicants may be concerned that the DHA may try to contact a foreign employer, which could disclose that the employee has left the country – and indicate where he or she has fled to. In that event, and mindful of the DHA’s obligations in terms of s 21(5) of the Act, the LSSA urged that the form should record expressly that foreign employers will not be contacted.

As regards criminal records, the LSSA pointed out that sight should not be lost of the fact that there is an important distinction between being the subject of an ‘arrest’ – which requires that a person is being arrested on a charge and will appear in court on that charge – and, on the other hand, being ‘detained’. ‘Many undemocratic regimes (and even some supposedly democratic ones too) give their security authorities the power to detain their opponents, real or perceived, without there being any checks or balances on that power. … [T]hese persons can be held in secret, without trial – for years even – and without the right of access to family or lawyers,’ noted the LSSA. It recommended that, where the form refers to ‘arrest’ it should be altered to read ‘arrested or detained’.

The LSSA raised concern about the lawfulness of the questions relating to whether a person applied for asylum in a third country; and if not, why not. The LSSA pointed out that s 2 of the Act clearly provides that, if a person seeks status and can set out a prima facie case for persecution, our country cannot return him or her to that condition – even if via a third country – and that person’s application must be assessed here.

‘Posing such a question in the form, without explaining why it is asked, may “invite” the refugee to invent reasons which may impact negatively on his or her credibility. We have to guard strictly against the false comfort of “armchair logic”; we need to understand the situations that many people have in fact fled from,’ said the LSSA.

As regards the question as to whether the applicant had notified ‘the refugee commissioner’, the LSSA submitted that very few people in South Africa would be able to indicate who the ‘refugee commissioner’ in South Africa is, much less how and where he or she may be found. The LSSA pointed out that, if the question were revised to refer to the ‘refugee authorities’ in the third country, the question would possibly elicit the information it actually seeks to secure.

The full submissions by the LSSA can be accessed on the LSSA website www.LSSA.org.za under ‘Legal practitioners’ then ‘LSSA comments on legislation’.

Compiled by Barbara Whittle, communication manager, Law Society of South Africa, barbara@lssa.org.za

This article was first published in De Rebus in 2015 (Jan/Feb) DR 22.