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Fahamu Refugee Legal Aid Newsletter

 

The Fahamu Refugee Legal Aid Newsletter is a monthly electronic publication that provides news, reflection, and learning on the provision of refugee legal aid. It is aimed primarily to be a resource for legal aid providers in the Global South where law journals and other resources are hard to access. It complements the information portal, http://www.frlan.org. The newsletter follows recent developments in the interpretation of refugee law; case law precedents from different constituencies; reports and helpful resources for refugee legal aid providers; and stories of struggle and success in refugee legal aid work.

Rwandan refugees in South Africa advise their host government ahead of UNHCR’s recommended invocation of the Cessation Clause

The following is a briefing prepared by Callixte M Kavuro, Chairperson of Rwandan Dialogue for Truth and Justice.

RDTJRwandan Refugees living in Cape Town (RRCT) was facilitated by Shirley Gunn, Director of Human Rights Media Centre (HRMC) to express their view on the cessation clause during a ‘Discussion Panel on the Migration Policy and Regional Integration in South Africa’ held on 12–13 February 2013. The HRMC were given an hour on the day of 13 February 2013 to submit recommendations for amendments that should be made on migration policy and how refugees and migrants can be effectively integrated in South African society. The HRMC found it necessary to bring up the lack of policy and policing in the cessation clause, focusing on Rwandan refugees as a case study.

The HRMC, as one of many organizations dealing with refugee matters in South Africa, sought a cessation clause policy approach that subscribes to human rights values, principles and law, and that ensures the inclusion of refugees’ voices. During a discussion, they stated with emphasis and agreed that:

1. The Refugees Act No 130 of 1998 is progressive; refugees are not confined to camps and can build livelihoods. We acknowledge the tremendous efforts that have been made by refugees to survive day-to-day and legally pursue their education and see to their families’ needs.

2. Information and educational programmes are necessary for the integration of refugees in local communities.

3. Maroon IDs and A4 status papers pose limitations to the real independence of refugees. This must be addressed.

4. Better management and administration of the Act’s implementation is the core issue; if addressed it can serve to lessen the hardships faced by refugees to integrate, participate and contribute to South African economy.

5. Monitoring of refugee reception operations and refugee service delivery is the joint responsibility of government and stakeholders.

6. Refugee Reception Centres should remain open in metropolitan areas with efficient administration and trained personnel.

7. Refugees are vulnerable to quick-fix solutions due to maladministration and backlogs at the Department of Home Affairs, as is the department.

8. Consultation with ALL relevant stakeholders is key to developing policy on migration and should include membership-based organizations, formed by refugees themselves, like RRCT (Rwandan Refugee living in Cape Town and RDTJ (Rwandan Platform for Dialogue, Truth, and Justice).

9. South Africa has the largest number of refugees in the world but the Department of Home Affairs does not have proper statistics on refugees in the country. This must be remedied.

10. The large numbers of refugees poses problems that are well known therefore durable solutions are needed.

The presentation was based on the intervention report, Rwandan refugee memorandums on the cessation clause, and on findings of focus group research with members of the Rwandan refugee community living in Cape Town, which was submitted to the Minister of Home Affairs and Portfolio Committee on Home Affairs.

The presentation indicated that:

1.       The government of Rwanda has, since 2002, been requesting UNHCR to invoke the cessation clause for Rwandan refugees. Once the cessation clause is put in place, the refugee status of Rwandan refugees ceases to exist. Rwandan refugees then either have to return to Rwanda or acquire permanent residency in the country where they sought protection, in this case South Africa. Exceptions are made for some Rwandans on the grounds of past persecution.

2.      In 2009, UNHCR declared that it considered invoking the cessation clause for Rwandan refugees in 2011, but after a series of intervention reports from international NGOs the deadline was moved to 30 June 2012, and then 30 June 2013. The cessation clause will only count for refugees who fled Rwanda between 1959 and 1998 because UNHCR acknowledges that refugees who fled after 1998 may still have well-founded fears of persecution.

3.      According to the government of Rwanda, the country is safe for refugees to return to, contrary to many international reports and the intervention report of HRMC, RRCT and RDTJ that argue that the cessation clause for Rwandan refugees is not a favourable or durable solution as Rwanda is not safe.

4.      The call for the cessation clause of the Rwandan government and UNHCR has caused anxiety in the Rwandan refugee community. The fact that the South African government has not yet provided a formal response to the call of the cessation clause increases stress, as Rwandan refugees living in South Africa are uncertain about their future.

Therefore, if South Africa chooses to invoke the cessation clause, Rwandan refugees will be forced to choose between repatriation (returning to Rwanda) and local integration (acquiring permanent residency). It is expected that many refugees will choose local integration as they are either too scared to return to Rwanda or prefer to remain in South Africa as this country has become their new home. Many Rwandan refugees have been in this country for over fifteen years and have established deep social and economic bonds. In fact, a third of the Rwandan Refugees were born in exile and thus lack a historical bond with their country of origin.

After five years, refugees in South Africa can apply for permanent residency, and many Rwandan refugees have done so, but Home Affairs faces large backlogs in processing applications and is unlikely to be able to deal with the increase of Rwandan applications should it invoke the cessation clause.

Rwandan refugees attaining a permanent residence status will lose UNHCR’s protection and the South African government will become solely responsible for them.

UNHCR aims to continue ‘to meet the needs of those individuals unable to return to their country of origin for protection-related reasons’ (UNHCR 2011:1). According to RRCT, many refugees fear prosecution in Rwanda because they have been outspoken against the new Rwandan government. Intervention reports show that people in Rwanda cannot speak openly about their opposing views of the Rwandan government because the weak democracy does not allow that.

UNHCR’s strategic plan clearly explains that the cessation clause only counts for refugees who fled Rwanda between 1959 and 1998. Why is Rwanda safe for people who fled the country before 1998, when clearly the country is currently not safe for many other Rwandans?

UNHCR’s strategic plan explains that ‘states will need to determine the timeline for declaring cessation and its subsequent entry into force’ and when states cannot meet the deadline of June 2013, they are advised to suspend the cessation clause until pertinent arrangements can be implemented (UNHCR 2011: 7).

The South African government can only consider invoking the cessation clause when comprehensive processes for local integration and repatriation can be implemented, ensuring the safety and well-being of Rwandan refugees. This includes making sure that Rwanda is safe and that there is durable peace.

According to RRCT and RDTJ, many Rwandan refugees want to return to Rwanda someday, but only once it is truly safe to do so. They therefore feel that invoking the cessation clause is premature.

The South African government should respond to the cessation clause urgently because the suggested deadline is 30 June 2013.

HRMC and RRCT recommend that the South African government must not invoke the premature cessation clause and that Rwandan refugees remain protected according to their refugee status. Permanent residency applications must be processed in a ‘reasonable period of time.’

When considering a cessation clause:

·         The South African government must consult stakeholders, especially those who would be most affected by the cessation clause.

·         Responses by the South African government to calls for cessation clauses must be timely; delays cause additional stress on affected refugees.

·         Invoking the cessation clause comes with the responsibility to conduct independent research rather than blindly following recommendations of governments, UNHCR and other parties. This should not be taken lightly as the lives of many people depend on it.

·         Criteria for exemption must be made clear and processes must not compromise the security of applicants. The exemption assessment questionnaire needs revision as some requested private and personal information is irrelevant and invades refugees’ rights to privacy, dignity, equality and personal security.

·         Statistics must be accurate. Without this no policy can be properly designed and implemented.

  • The South African government must define and communicate how long a ‘reasonable period of time’ is to process permanent residency applications.

 

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