NATIONAL ASSEMBLY

QUESTION FOR WRITTEN REPLY

QUESTION NO. 1690

DATE OF PUBLICATION: Friday, 8 May 2015

INTERNAL QUESTION PAPER 13 OF 2015

1690. Mr M H Redelinghuys (DA) to ask the Minister of Home Affairs:

(1) Whether, with reference to the SA Human Rights Commission (SAHRC) Report on the Investigation into Issues of Rule of Law, Justice and Impunity arising out of the 2008 Public Violence against Non-Nationals published in May 2008, his department has implemented the recommendations of the specified report; if so, (a) which recommendations have been implemented and (b) what is the intended time frame for the implementation of the remaining recommendations;

(2) Whether his department has conducted an evaluation of any challenges faced during the 2008 xenophobic crisis and formulated an action plan for future improvements for submission to the SAHRC; if so, (a) who conducted the evaluation and (b) what was its outcome;

(3) Whether his department has (a) provided the SAHRC with annual assessments of all immigration-related cases and (b) ensured the provision of legal counsel to foreign nationals that are being deported prior to their repatriation;

(4) Whether his department has developed specific guidelines to prevent xenophobia?

NW1910E

REPLY:

(1)  Yes. The SAHRC report contains a total of 21 recommendations for the Department of Home Affairs. The Department has implemented 19 of these recommendations.

(1)(a) The recommendations implemented are attached as Annexure A.

(1)(b) A timeframe cannot be provided as the two recommendations cannot be addressed fully, see attached Annexure B.

(2)(a-b)Whilst the Department has not conducted an evaluation, in the sense of generating a ‘report’ on the challenges faced during the 2008 xenophobic crisis, it adopted a number of measures to improve its services to clients and assist in the combating of xenophobia through its Chief Directorate: Asylum Seeker Management. They include:

- Xenophobia Roundtable Indaba,

- Improving the on-line refugee system to be an integrated system across all refugee reception offices and with the Deportation section,

- Enhancement of HR capacity at Refugee Reception Offices to process asylum applicants. Posts were created for managers for Refugee Reception Officers, Refugee Status Determination Officers and Quality Assurers,

- Training of officials by the Standing Committee for Refugee Affairs and the United Nations High Commissioner for Refugees,

- Participation in social cohesion initiatives led by the Department of Arts and Culture and participation in activities linked to Outcome 14

- Referral of cases of abuse of processes to the Branch: Counter Corruption and Labour Relations for further investigation.

- Implementation of improvements in process flows and operational management at Refugee Reception Offices in order to enhance the efficiency of offices to receive and process asylum applications. These initiatives had the effect of enabling asylum seekers to obtain the necessary documentation to facilitate their integration into society.

(3)(a) This matter is answered under (1)(b) above with reference to Recommendation no. 3 in Annexure B.

(3)(b) This matter has been answered under (1)(a) above with reference to Recommendation no. 4 in Annexure A.

(4) The Department of Home Affairs has been vocal in noting that the prevention of xenophobia is a matter that requires an all-of-government and all-of-society approach, for as much as the Department issues enabling documentation to foreign nationals to facilitate their integration into society, such persons become part of communities as they conduct their daily lives and access services.

Thus, enabling social cohesion requires the cooperation of all tiers of government and civil society. Nonetheless, the Department is in the process of reviewing an integration strategy to be shared with Social Cluster Departments, aimed to prevent violence against foreign nationals since asylum seekers and refugees will be systematically integrated into communities through this strategy.

The Department of Home Affairs is an active participant in the Inter-Ministerial Committee set up by the President to address current challenges. It also continues to participate in the United Nations Protection Working Group which has formulated an action plan arising from the xenophobic attacks. Importantly, the Department of Home Affairs has also initiated a comprehensive Immigration Policy review, which will address, amongst its themes, issues of national building and social cohesion.

Annexure A: PQ 1690 – Whether with reference to the SA Human Rights Commission

(i) Rec No 1: Conduct a thorough and transparent evaluation of the challenges faced during the 2008 crisis and formulate an action plan for future improvements: There is an Immigration Priority committee in the operating arm of the JCPS cluster, namely the NATJOINTS (National Joint Operational Intelligence Structure). This priority committee is chaired by the Department of Home Affairs.

The DHA is guided by reports and findings made by intelligence/law enforcement departments regarding risks and threats and works jointly with other departments in the cluster to address such risks and threats. The terms of reference of this priority committee include addressing anti-foreigner sentiment. Tasks of this committee include visiting areas with significant numbers of foreign-owned businesses not only to engage with foreign nationals to register their businesses but also to find out whether such business owners support the local community. Due to capacity challenges, the amount of time dedicated to such engagements is limited.

(ii) Rec No 4: Ensure that detainees at Lindela Repatriation Centre have access to legal counsel prior to deportation and eliminate undue administrative delays to such consultation: Civil society organisations have access to the Lindela Holding Facility to monitor detainees and consult with them. Since September 2014, DHA has also extended an invitation to the South African Human Rights Commission (SAHRC) to have a permanent presence at the Lindela Holding Facility so that they can assist persons who require legal representation. The SAHRC also receives information about persons who are being held at Lindela and whose detention is to be extended in order to assist such persons with legal representation.

(iii) Rec No. 5: Take immediate steps to counter the administrative injustices flowing from inconsistency in information systems across refugee reception offices and Lindela Repatriation Centre: Since April 2008, all refugee reception offices are linked up to a National Immigration Information System (NIIS) which contains all the biometric and personal information of clients who apply for asylum nationally. The Lindela Holding Facility also has access to this system, which allows Lindela to verify whether a detainee is an asylum seeker prior to being admitted at Lindela. Should a person be found to be an asylum seeker whose claim is still pending during the screening process, such person will not be admitted at Lindela.

(iv) Rec No. 6: Ensure that all relevant officials and contractors adhere to the Immigration Act 2002 and Refugees Act 1998. All relevant officials sign Annual Performance Agreements and are bound to uphold the laws of the country, including the Immigration Act and Refugees Act 1998. Several Chief Directorates within Immigration Services have also sought to standardise practices through the development of Standard Operating Procedures that are reviewed as the need arises.

All officials who join the Department of Home Affairs also undergo a period of induction, including a number of modules on Immigration Management to become familiar with key pieces of legislation administered by the Department and existing Standard Operating Procedures. Should an official fail to abide by the Immigration Act and/or the Refugees Act, disciplinary action (and legal action through the courts, where applicable) can be undertaken.

(v) Rec No. 7: Ensure that all officials and contractors work with constitutional principles foremost in their minds and work cooperatively and in good faith with legal service providers to ensure that the right to individual liberty is protected. The answer to Recommendation 6 above refers. As mentioned earlier, legal service providers also have access to the Lindela Holding Facility.

(vi) Rec No. 8: Conduct and provide to the SAHRC an annual assessment of DHA progress in actioning its recommendations relating to abuses of process. The DHA has implemented a number of initiatives since the 2008 incidents of xenophobia; however, it has not provided the SAHRC with annual progress reports. A review of existing Standard Operating Procedures (SOPs) and development of new procedures, where required, has been undertaken by the Chief Directorate: Asylum Seeker Management and Chief Directorate: Inspectorate.

Immigration directives are issued through internal communications in order to ensure that every official in the Department is aware of the information, regardless of where that official is based. Further, all newly appointed officials undergo specific induction training including Immigration Management modules. Training of immigration services staff has also been undertaken in cooperation with UNHCR and IOM. Where there are specific abuses of process, such matters are taken through internal disciplinary channels.

(vii) Rec No. 9: Implement disciplinary procedures against officials who were responsible for departures from legislated administrative procedures or possible refoulement. More detailed information on the personal particulars of officials allegedly involved in departures from legislated administrative procedures would be required to take action against specific officials. However, such information has not been provided to the Department. Disciplinary action was taken against five (5) departmental officials who conducted a deportation despite an order not to deport a Botswana national who was facing a capital crime in Botswana.

(viii) Rec No 10: Adopt a consistent approach to voluntary repatriation during a displacement of non-nationals. The Department’s role is to assist victims of displacement to obtain, often through re-issuance, documents that may have been lost. If the victims wish to return to their home countries, the Department liaises with their embassies/consulates, takes their personal particulars, issues such persons with travel cards to capture their movement, as well as arranges their transport in collaboration with their respective embassy.

(xi) Rec No 11: In line with section 41 of the Constitution, develop cooperative relations with key structures of national and provincial government to facilitate a speedy response to displacement and a quest for durable solutions for displaced persons before terminating government shelter and assistance.

The Department of Home Affairs participates in a number of government cluster structures and works cooperatively with other government structures. The provision of shelter and assistance falls outside of the mandate of the Department of Home Affairs. However, the Department assists with the verification of status of displaced persons and the re-issuance of documents (where applicable) to enable their reintegration into society once a decision to terminate government shelter and assistance is made by the government collectively.

(x) Rec No. 12: Develop specific guidelines on the DHA’s legislated xenophobia prevention and deterrence mandate. The mandate of the Department of Home Affairs aims to prevent xenophobia by providing enabling documents to different categories of migrants. Through its Stakeholder Management Directorate within the Chief Directorate: Asylum Seeker Management, the Department has conducted a series of training sessions and workshops with ward councilors and Metro police in various areas in Tshwane.

In the last two years, it has been determined that Home Affairs must contribute to the government outcome dealing with social cohesion, which is led by the Department of Arts and Culture. In this regard, the Department has organized a Social Cohesion Programme led by Minister, whose first meeting with stakeholders took place in April 2015 in Ekurhuleni.

(xi) Rec No. 13: Be party to the programme of targeted conflict resolution initiatives to be implemented by a department nominated by government’s social cluster: The DHA is a participant in the Social Cluster and remains committed to join action mandated by the Social Cluster.

(xii) Rec No. 14: Partner with the South African Police Service (SAPS) and Disaster Management in responding to early warning information or patterns of crimes against non-nationals. The Department participates in the JCPS Cluster and other coordinating bodies within government. The Department remains committed to partnering with SAPS and Disaster Management to ensure a consolidated response to early warning information.

In this regard, the Department participates in joint operations with SAPS to address immigration matters. As mentioned earlier, there is an immigration priority committee in the operating arm of the JCPS cluster, namely the NATJOINTS (National Joint Operational Intelligence Structure). This priority committee is chaired by the Department of Home Affairs and it has undertaken a number of activities to respond to early warning information.

(xiii) Rec No. 15: Maintain a management approach to immigration, including undocumented immigration into informal settlements. The Department has adopted a management approach to immigration; unfortunately, however, it does not have the capacity to monitor, on a regular basis, activities taking place in informal settlements. Its approach has been to empower key stakeholders (such as councilors) on the rights of different categories of migrants, to enable them to engage within their respective communities. The Department has also undertaken steps to assist vulnerable populations such as Zimbabwean nationals through a special documentation project.

(xiv) Rec No. 16: Assist the Department of Human Settlements (DHS) in formulating a policy on the partial formalisation of informal settlements. DHS must lead in this area given its expertise in this subject area. However, the Department remains committed to working with DHS as required.

(xv) Rec No. 17: Work with the Department of Social Development (DSD) on immigration-related aspects of the Population Policy.The Department of Home Affairs developed draft Standard Operating Procedures (SOPs) with DSD to assist unaccompanied asylum seeker and refugee children. The SOPs have not been formally adopted, but engagements have taken place with DSD on this matter. DHA remains committed to making inputs to aspects of Population Policy if requested to do so by DSD.

(xvi)     Rec No. 18: Through the Counter-Xenophobia Unit (CXU), assist in municipal local integrated development planning for social cohesion. The Cabinet took a decision after the 2008 xenophobic attacks to appoint a lead Department which is Department of Arts and Culture that will deal with issues of xenophobia and social cohesion .The Department of Home Affairs is participating in the social cohesion initiatives which are led by the Department of Arts and Culture which was also appointed as the lead Department in relation to Government Outcome 14.

The Counter-Xenophobia Unit (CXU) within the Department has ceased to exist. However, through its Stakeholder Management Directorate within the Chief Directorate: Asylum Seeker Management, the Department has undertaken a number of training sessions with ward councilors and members of the police to sensitise them to the issues of xenophobia and social cohesion.

(xvii) Rec No. 19: Through the CXU, work with the Department of Education (DoE) and SAHRC to incorporate issues of migration and xenophobia into the national syllabus. As mentioned earlier, the CXU does no longer exist within the Department. However, the Department remains committed in providing information to the DoE on the different categories of migrants and the rights accorded to them for purposes of incorporation into syllabi.

(xviii) Rec No. 20: Extend the CXU’s counter-xenophobic performances to all schools in and around areas affected by violence against non-nationals. Since the Department of Arts and Culture is the lead Department in this area, the Department participates in such interventions as guided by the Department of Arts and Culture.

***

PQ 1690 ANNEXURE B whether on with reference to the SA Human Rights Commission

(i) Rec No. 2: Provide to the SAHRC an evaluation of the action taken with regard to the Glenanda/R28 group along with a lessons learned document to prevent future administrative injustices. An evaluation of the action taken was not provided to the SAHRC. It is unlikely that it will be provided to the SAHRC due to the turnover of staff and passage of time. However, as mentioned elsewhere, strict procedures have been implemented to ensure that asylum seekers (whose claims are pending) or refugees are not admitted at the Lindela Holding Facility. Further, compulsory induction training for all immigration officers has been introduced. Such training ensures that immigration officials are fully conversant in the differences between refugee law, immigration law and criminal law.

(ii) Rec No. 3: Provide to the SAHRC an annual assessment of cases brought against DHA and/or its contractors with respect to status determination, arrest, detention and deportation. It is very difficult to provide an annual assessment of cases due to limited capacity within the Chief Directorate: Legal Services. A summary of yearly performance is contained in the Annual Report of the Department.

Issued by Parliament, June 1 2015