No. 338: Exclusionary policy leads to xenophobia / Catherine Musuva / The Sunday Independent
21 June 2015
Tackling the scourge of xenophobia in South Africa requires an honest acknowledgement by the government that the manner in which it regulates the entry of international migrants and responds to their presence once in the country reinforces xenophobia.
Xenophobia is not only expressed through violent outbursts by citizens targeting black African migrants but also by discriminatory attitudes and behaviour towards migrants.
In exercising its right of admission, the government has adopted an immigration regime that falls in the category of differential exclusion, as opposed to assimilation. This approach, according to academics Stephen Castles and Alastair Davidson, accepts migrants within strict confines "as workers, not as settlers; as individuals, but not as families or communities; as temporary sojourners, but not as long-term residents". It also embraces undignified detention and deportation as a way to manage migration.
South Africa's immigration policy is anchored both in law and in the everyday practices of immigration officials. The institutional and symbolic effects of a policy of differential exclusion make it difficult for the majority of migrants residing in the country legally to integrate into society and thus constitute institutional xenophobia. Migrants, being non-citizens, are constrained from enjoying a broad range of rights and from accessing essential services.
The daily realities of migrants reveal the tenuous nature of the legal status of many of them until they acquire permanent residence (if they are lucky), which is the most secure status. Research has also shown violations of progressive provisions in the constitution, Refugees Act and Immigration Act are routine, widespread and systematic.
Staying legal can be a time-consuming and complicated exercise for migrants. Asylum seekers, refugees, and temporary residents must contend with bureaucratic indifference, disorder, long queues and dehumanising treatment by officials at Refugee Reception and Home Affairs offices when renewing visas. This makes it difficult for migrants to retain their legal status over an extended period of time. Home Affairs also has inconsistent procedures for renewing permits before and after they expire and the validity period of extended permits is not always predictable.
The processing of visas is fraught with delays and backlogs. Asylum claims can take years to adjudicate instead of the six months set out in the regulations. In terms of administrative law, an appeal hearing should take place within a reasonable period. However, this is rarely the case, as Home Affairs has built up an enormous backlog over the years and some migrants have been waiting up to four years for an appeal hearing.
Even though Home Affairs says it takes three months to issue a refugee travel document, the experience of refugees is that it takes much longer, if the travel document is issued at all.
Those with temporary resident visas have to wait beyond the eight weeks Home Affairs claims it takes to process a work permit. Permanent residence status remains elusive for many refugees who meet the criteria of having lived in the country for more than five years. The challenges of getting documentation also contribute to the production of illegal immigrants.
Migrants see these institutional practices as deliberately aimed at frustrating them and not simply as Home Affairs' inefficiency. It appears these practices are part of a strategy to make integration of migrants difficult and to discourage those with short-term visas from considering staying for the long term. They are aimed at denying migrants access to the rights that come with their immigration status and denying them entitlements that would be expected after having spent a long period in a foreign country. They also severely limit the kind of work migrants can get.
Home Affairs is aware of the damage delays and uncertainties can have on the lives of migrants, as this is the same department that issues identity documents to citizens - vital for accessing many services and opportunities.
Immigration officials seem to actively operate from the notion that the state exists only for citizens, irrespective of the ideals reflected in the constitution and the Refugees Act.
Although the government publicly proclaims legal migrants are welcome, the reality is often different. It seems it has unofficially adopted a "self-deportation" strategy or, more accurately, a strategy of attrition through enforcement, to drive out migrants.
The idea of attrition through enforcement is to create conditions that frustrate migrants to the point that they opt to leave the country of their own volition. Anti-immigrant groups and politicians in the US have called for a range of laws there that would make life so difficult for illegal migrants they would be forced to return to their home countries. Such proposals include provisions that deny access to education, basic utility services, housing and jobs to migrants who don't have legal documentation.
The strategy in South Africa differs in that it does not specifically target illegal migrants but the thinking is similar - make life unbearable for certain categories of migrants so that they are forced to leave.
Migrants living in South Africa struggle to integrate legally because they are held back by institutional procedures and practices that exclude them from enjoying a broad range of rights and accessing essential services.
An ID book or number is also a prerequisite for acquiring many services from the government and private sector providers and only permanent residents and naturalised South Africans possess this key document.
As long as immigration policy is based on exclusion, xenophobia will continue to be a feature of society.
Musuva is a senior research and training officer at the Centre for Conflict Resolution in Cape Town.