Towards a regional integrated migration regime: A future perspective

1. Toward a Regional Integrated Migration
Regime: A Future Perspective
The Implications of a Regional Approach to Labour for
South Africa’s Asylum System
www.migration.org.za
Roni Amit
Ph.D., JD
SIHMA & the Catholic Parliamentary Liaison Office
3 September 2014

2. Easing Pressures on the Asylum System
Migration management:
• Effects of a regional approach to labour
within SADC on the asylum system
• First safe country principle as a mechanism
for easing pressure
Are these sufficient to establish a well-functioning
www.migration.org.za
asylum system?

3. www.migration.org.za
A Look at the Overall Numbers
YEAR ASYLUM SEEKERS
2002 24,187
2003 41,741
2004 41,369
2005 43,289
2006 53,361
2007 45,637
2008 207,206
2009 341,602
2010 124,336
2011
106,904
2012 61,500
2013 70,010

4. Top Asylum Nationalities in SA (over 1000)
Country 2011 2013
Zimbabwe 51,031  16,420
Nigeria 2156  7363
DRC 7668  7175
Ethiopia 12,670  7165
Bangladesh 4752  3858
Mozambique 560  3751
Pakistan 2929  3540
Lesotho 185  3424
Malawi 3774  2493
India 1159  2470
Ghana 1221  2466
Somalia 9986  2051
China 1204  1563
Uganda 1606  1371
TOTAL 100,901 65,110
www.migration.org.za

5. www.migration.org.za
Asylum Seekers from SADC
Country 2013
Angola 42
Botswana 12
DRC 7175
Lesotho 3424
Madagascar 1
Malawi 2493
Mauritius 0
Mozambique 3751
Namibia 1
Seychelles 0
Swaziland 55
Tanzania 466
Zambia 184
Zimbabwe 16,420
TOTAL 34,024

6. Regional Representation in the Asylum System 2011
www.migration.org.za
64%
25%
2%
8%
1%
SADC
E Africa & Great
Lakes
South Asia
West Africa
Central Africa

7. Regional Representation in the Asylum System 2013
www.migration.org.za
49%
17%
14%
15%
2% 3%
SADC
East Africa
South
Central Asia
West Africa
East Asia
Other

8. www.migration.org.za
What the Numbers Tell Us
• SADC : 64% to 49%
• Asia : 8% to 14%
• W Africa : 2% to 14%
• 51% of 2013 asylum seekers not from SADC
• Not all individuals from SADC are economic
migrants
• SADC agreement will have limited effect
• Role of first safe country? Will it work?

9. 1st Safe Country Principle
• Policy move: attempts by governments to
transfer obligations to other states: asylum
seekers must seek asylum in first country
they transit where possibility of asylum exists
• Status in international law? DHA
characterises it as an intl law obligation
“The UN Convention on asylum seekers provide
for the 1st Country Rule which states that an
asylum seeker should seek refuge in the first
safe country that he/she reaches.”
2013 Annual Report on Asylum Statistics
www.migration.org.za

10. What the First Safe Country IS NOT
• An established procedure of international law
• A mechanism that entitles states to legally refuse
entry at the border
• A pre-screening measure
• An administrative shortcut
• A way to avoid the non-refoulement principle
• Not always a cost-saving mechanism
www.migration.org.za

11. www.migration.org.za
What the First Safe Country IS
• A practice developed by states to allocate intl
obligations toward asylum seekers
• Mechanism involving an assessment of whether
an individual can seek asylum in another county
• An administrative process
• Process for receiving and considering asylum
claims fairly and evenly without violating rights
set out in Refugee Convention
• Practice that upholds non-refoulement principle
on sending state

12. Status of the 1st Safe Country Principle in Intl
Law
Treaty Law
1951 UN Convention Relating to Status of Refugees
• No requirement that refugee seek protection in the
nearest country
1969 OAU Convention
• No requirement that asylum seekers seek protection
from first country they transit after fleeing
• Article 2(3): non-refoulement principle prohibits
‘rejection at the frontier’
www.migration.org.za

13. www.migration.org.za
Customary International Law
Consistent state practice based on a general sense of
legal obligation
Key elements of a customary norm
• Repetition: how often it is practiced
• Duration: how long it has been practiced
• Generality: how many states have adopted the
practice
Customary norms in refugee law
• Access to asylum
• Non-refoulement

14. www.migration.org.za
Customary International Law
NO consistent widespread state practice requiring
asylum seekers to request protection of first safe
country
• Countries have established practice through
bilateral and multilateral agreements, which bind
only signatory states
• Stem from shared interests, not a sense of legal
obligation
• Not indicative of a customary norm of intl law

15. What is the status of 1st Safe country
principle in International law
Neither treaty nor customary international
law supports SA’s view that countries are
bound under international law to enforce a
first safe country principle
1st safe country may be implemented if it is
applied in a manner that is consistent with
intl law, particularly obligations of Ref Conv
www.migration.org.za

16. Implementing the 1st Safe Country
General Principles (UN EXCOMM)
Individuals can only be returned if:
• are protected against refoulement
• will be allowed to remain and have basic human
rights respected
• have meaningful links or connections to
receiving state
• will have opportunity to apply for asylum and
status determination has procedural safeguards
www.migration.org.za

17. 1st Safe Country Principle in Practice
EU: Dublin Regulation
‘the states must make sure that the intermediary
country’s asylum procedure affords sufficient
guarantees to avoid an asylum seeker being
removed, directly or indirectly, to his country of
origin without any evaluation of the risks he
faces.’ (ECHR, MSS v Belgium and Greece)
• Legislation and guarantees not sufficient
• Must investigate practice
www.migration.org.za

18. 1st Safe Country Principle in Practice
Americas: Canada-US Safe Third Country Agreement
“The obligation of non-return means that any person
recognized or seeking recognition as a refugee can
invoke this protection to prevent their removal. This
necessarily requires that such persons cannot be
rejected at the border or expelled without an
adequate, individualized examination of their claim.”
(IACHR, John Doe v Canada)
www.migration.org.za

19. 1st Safe Country Principle in Practice
www.migration.org.za
Australia: Third Safe Country Principle
“It cannot have been intended under the Convention that
refugees could be shunted from one Convention country to
another in the absence of any special connection with that
other.”
“The principle of effective protection requires that the
applicant has a connection with the third county in the sense
that one can be satisfied that the country in question will
accord him or her effective protection.” (NAGV v Minister for
Immigration

20. General Principles Governing Practice
• Whether an individual can be sent to ‘safe country’
must be based an individualized determination
• Cannot be based on safe country lists
• Depends on individual circumstances and
interaction with conditions in receiving country
• Unilateral state action to return asylum seekers to
countries without prior agreement increases risk of
refoulement, including chain refoulement
• Sending country responsible for indirect
refoulement
www.migration.org.za

21. Implications for Sending Countries
First safe country is NOT an administrative shortcut
• May increase administrative burden
• Investigation tnto individual’s situation, practice of
refugee protection in the receiving country, and
how individual will be treated there
• More burdensome than conducting status
determination
www.migration.org.za

22. UNHCR 2014 Country Operations Profiles
Country Asylum Seekers Refugees Total
Kenya 52,285 534,938 607,223* (includes 20,000
www.migration.org.za
• *
stateless)
South Africa 232,211 65,881 298,092
Uganda 24,221 220,555 244,776
DRC 1461 113,362 114,823
Tanzania 407 102,099 102,506
Republic of Congo 2651 51,037 53,688
Angola 20,039 23,783 43,822
Zambia 2220 23,594 25,814
Mozambique 10,674 4445 15,119
Zimbabwe 480 6389 6869

23. www.migration.org.za
Final Points
• Can SA negotiate agreements with these countries?
• Can it ensure compliance with requirements?
• Will 1st safe country create a greater administrative
burden, particularly if done properly to avoid
indirect refoulement
• Another mechanism for circumventing rights of AS?
• Regional labour agreements must extend beyond
SADC to ease pressures on aslyum system
• Is there any political will to improve the functioning
of asylum system, or will it continue to function as
a mechanism of immigration control?

24. Toward a Regional Integrated Migration
Regime: A Future Perspective
The Implications of a Regional Approach to Labour for
South Africa’s Asylum System
www.migration.org.za
Roni Amit
Ph.D., JD
SIHMA & the Catholic Parliamentary Liaison Office
3 September 2014