How to Apply for Asylum

REFUGEE RIGHTS

INFORMATION BOOKLET

Information for Refugees and Asylum Seekers in Cape Town

Refugee Rights Project UCT Law Clinic University of Cape Town Fourth Level, Kramer Law School Building 1 Stanley Road, Rondebosch 7701 Phone: (021) 650 3775 Fax: (021) 650 5665 Email:

TABLE OF CONTENTS

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REFUGEE PROTECTION – THE LAW IN SOUTH AFRICA 1

REFUGEE RIGHTS IN SOUTH AFRICA2

ASYLUM SEEKER RIGHTS IN SOUTH AFRICA2

HOW TO APPLY FOR ASYLUM IN SOUTH AFRICA3

IMPORTANT POINTS TO KNOW ABOUT THE

ASYLUM PROCESS AND YOUR RIGHTS4

WHAT HAPPENS IF YOU HAVE BEEN

GRANTED REFUGEE STATUS?5

HOW CAN YOU GET A REFUGEE IDENTITY

DOCUMENT OR A TRAVEL DOCUMENT?5

WHAT HAPPENS IF YOUR APPLICATION FOR

ASYLUM HAS BEEN REJECTED? 6

HOW CAN YOUR REFUGEE STATUS BE WITHDRAWN?6

DO YOU NEED EDUCATION & SKILLS TRAINING?7

DO YOU NEED WELFARE AND ACCOMODATION HELP?8

DO YOU NEED LEGAL ADVICE? 9

DO YOU NEED FINANCIAL SERVICES? 10

DO YOU NEED TO SEE A DOCTOR? 11

DO YOU NEED MENTAL HEALTH COUNSELLING? 12

HIV/AIDS INFORMATION 13

PUBLIC SCHOOLS FOR REFUGEE AND

ASYLUM SEEKER CHILDREN 14

EMPLOYMENT INFORMATION15

HOUSING INFORMATION16

WHAT IS VOLUNTARY REPATRIATION?17

WHAT IS FAMILY REUNIFICATION? 18

HAVE YOUR RIGHTS BEEN VIOLATED?

DO YOU HAVE ANY COMPLAINTS?19

REFUGEE PROTECTION – THE LAW IN SOUTH AFRICA

In 1996, South Africa committed itself to the protection of refugees by signing the 1951 United Nations Refugee Convention as well as the 1969 Organization of African Unity Refugee Convention.
In 2000, South Africa’s Refugees Act 130 of 1998 came intooperation.
The Refugees Act defines refugee as a person:

i. who is outside their home country and who has a well-founded fear of being persecuted on account of his/her race, religion, nationality, political opinion or membership in a particular social group; OR

ii. who is outside their home country and whose life, physical safety or freedom is threatened on account of external aggression, occupation, foreign domination or other events seriously disturbing or disrupting public order in either part or the whole of that country.

The first category is based on the definition of refugee found in the 1951 UN Convention on Refugees and the second category is based on the definition of refugee found in the 1969 OAU Refugee Convention.
Persecution is when someone’s civil, political or human rights are violated to the extent that the person must flee from his/her home. Persecution does not include violation of one’s socio-economic rights. Severe discrimination that threatens a person’s survival may also be considered persecution.
Refugees are given special status in South Africa to remain in the country until it is safe to return to their home countries.
Asylum Seekers are people who have made an application for refugee status in South Africaand whose claims have not yet been finalized by the Department of Home Affairs.
According to the Refugees Act, no person can be denied the opportunity to apply for asylum. Asylum seekers are allowed to stay in South Africa until a final decision has been made on their application.
The Department of Home Affairs issues various types of permits. You cannot apply for refugee status if you have come to South Africa to searchfor a job, seekfurther education, visit family/friends or start a business in South Africa. Instead you should apply for a work permit or a study permit or a visitor’s visa.
You are excluded from refugee status if you have committed a crime against humanity, a war crime or a crime against peace.
You are excluded from refugee status if you committed a serious non-political crime outside South Africa, which if committed in South Africa would be punishable by imprisonment.
You are excluded from refugee status if you are currently enjoying the protection of another country, meaning that if you have already received refugee status in another country.
You can lose your refugee status if you voluntarily obtain the protection or nationality of your country of origin or of a new country, or if you voluntarily return to the country which you fled from and take up residence there with the intention of settling permanently.
You can also lose your refugee status due to involuntary acts such as when there is no longer a threat in your country of origin or if you take on the protection of your country because circumstances in your country have changed.

REFUGEE RIGHTS IN SOUTH AFRICA

Refugees in South Africa have the following rights:

The right to a formal recognition of refugee status in the prescribed form (Form BI-1693 i.e. Section 24 Permit).
Full legal protection, which includes the rights set out in Chapter 2 (Bill of Rights*) of the South African Constitution and the right to remain in South Africa, subject to the provisions of the Refugees Act.
The right to acquire property, and enter into leases and other contracts.
The right to take up employment or be self-employed in the profession of theirchoice.
The right to primary education. Refugee children may study at South African public schools and refugee parents may qualify for school fees exemptions for their children.
The right to access secondary and tertiary education.
The right to have access to primary and emergency health care and referrals for further medical treatment.
The right to a refugee identity document, as referred to in section 30 of the Refugees Act.
The right to a travel document, as referred to in section 31 of the Refugees Act.
The right to apply for permanent residence, after five years of continuous residence in South Africa from the date on which he or she was granted asylum, if the Standing Committee certifies that he or she will remain a refugee indefinitely.

In return, refugees must respect the rights of others and follow the laws and regulations of South Africa.

ASYLUM SEEKER RIGHTS IN SOUTH AFRICA

Asylum Seekers in South Africa are protected by the Bill of Rights* enshrined in the South African Constitution.
Asylum Seekers have the right to remain in South Africa, subject to the provisions of the Refugees Act. This means that they have the right notto be deported from South Africabefore their asylum application is finalized.
Asylum Seekers are entitled to a fair process in the adjudication of their asylum application.
Asylum Seekers, while awaiting the determination of their asylum application, may study and take up employment in South Africa.
Asylum Seekers have the right to basic health care and emergency health care.
Asylum Seekers have the right to primary education. Asylum seeker children may study at South African public schools and asylum seekers may qualify for school fees exemptions for their children.
Asylum Seekers have the right to access secondary and tertiary education.
Asylum Seekers may not apply for refugee identity books or travel documents.

In return, asylum seekers must respect the rights of others and follow the laws and regulations of South Africa.

*Bill of Rights (Chapter 2) of Constitution

Protection provided under Chapter 2 of the Constitution of South Africa of 1996means the right to human dignity, the right to life, freedom and security of the person, freedom of religion, belief and opinion, freedom of expression, freedom of movement and residence, freedom from arbitrary arrest and detention, freedom from torture, protection from abusive use of state power or authority, the right to be considered as a person in front of the law and to have access to courts of law.

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HOW TO APPLY FOR ASYLUM IN SOUTH AFRICA

The application for asylum must be made as soon as possible after entering into South Africa.
You must make your application for asylum in person at a Refugee Reception Office with a Refugee Reception Officer (RRO).
A child’s asylum application is normally included in the application of the child’s parent, grandparent or legal guardian.
A spouse’s application is also normally included in the primary applicant’s application.
To apply for asylum, you must fill out an Eligibility Determination Form (Form BI-1590) in duplicate. The RRO must help you fill out this form. This stage of the asylum application is referred to as the “first interview.”
Some of the questions that you must respond to at this stage include: your name, nationality, ethnic group, religion, family members, education and work experience, why you left your home country, whether you were politically active or were in the military in your home country and the current situation in your country.
It is important to be truthful when answering these questionsbecausetheanswersthat you provide will be used to determine whether you qualify for refugee status in South Africa. Home Affairs will refer back to this first interview when making a determination on your refugee claim and might refuse your application if you have been inconsistent in your answers throughout the entire asylum application process.
You have the right to have your answers on the application form read back to you by the RRO. If you would like to make any changes in your answers, ask the RRO to make the changes in writing before you sign the application form. While the RRO must do his/her best to provide you with a competent interpreter at this stage, you may also bring your own interpreter to assist you, at your own cost.
It is important that you bring to the interview any original documents or evidence that verifies who you are, where you are from, and why you are claiming refugee status. Home Affairs will only keep copies of these documents.
Upon completing your application form, the RRO must provide you with an asylum seeker permit (Section 22 permit). This permit legalizes your stay in South Africa until a final decision is made on your refugee claim.
You will be fingerprinted and photographed for the asylum seeker permit. The permit does not recognize you as a refugee yet. The permit is valid for only a limited period and should be renewed in time.
According to the Refugees Act, within 30 working days after your application, you will be invited for a status determinationinterview with a Refugee Status Determination Officer (RSDO). You are allowed to bring legal counsel or a representative to this interview to assist you. The RSDO must explain the procedure to you and make sure that you understand your rights and obligations. While the RSDO must do his/her best to provide you with a competent interpreter at this interview, you may also bring your own interpreter to assist you, at your own cost.
According to the Refugees Act, the asylum process should be completed within 180 days. However, due to a backlog of applications at the Department of Home Affairs, there are currently serious delays in the process. This means that asylum seekers must sometimes wait several years before they get refugee status in South Africa. It is required that you remain as patient as possible as Home Affairs is attempting to resolve this backlog problem. You can also contact a legal counsellor for assistance.

IMPORTANT POINTS TO KNOW ABOUT THE ASYLUM PROCESS AND YOUR RIGHTS

There is no fee payable for eligibility interviews or for the issuing or renewing of asylum seeker or refugee permits at the Refugee Reception Office. If you are requested to pay for any of these services, you have the right to refuse the request and you should report the matter to a higher government official, the UNHCR, or an NGO.
There is a R115application fee for a UNCTD (United Nations Convention Travel Document, otherwise known as a Refugee Passport).
The information that you provide for your asylum application is strictly confidential and will not be shared with anyone, including the government of your home country.
If you travel to your home country while your Section 22 asylum seeker permit is still valid and then you return to South Africa, you may cease to be considered a refugee because you re-availed yourself of the protection of your home country.
At all stages of the asylum procedure, the RRO must do his/her best to provide you with a competent interpreter. If this is not possible, you are allowed to bring your own interpreter to assist you, at your own costs.
You must ensure that your Section 22 permit remains valid at all times and carry it with you wherever you go. You may be arrested if you do not have a valid permit on you.
You must apply for renewal of your Section 22 permit in person at the Refugee Reception Office before it expires, as your permit is NOT renewed automatically.
A good idea is to make copies of your permit and try to remember the case number (i.e. CTR/000###/04) of your permit.
If you lose your permit, you should report the loss to the nearest police station and get a statement from the police. You should bring the police statement with a copy of your permit (if you have a copy) and the RRO will issue you with a new permit.
With your asylum seeker permit, you are allowed to move freely around the country and you can live wherever you want in South Africa. It is advisable, however, to try to stick with the same Refugee Reception Office throughout the asylum determination process, as this reduces the possibility of Home Affairs losing your file or a delay due to the change of offices. However, you have the right to renew your permit at the closest Refugee Reception Office to you.
Asylum applications which are found to be abusive or fraudulent, including those submitted by economic migrants, are processed through a fast-track procedure for manifestly unfounded claims with no right to appeal, which may result in deportation from South Africa.
You cannot apply for an identification document, travel document or permanent residence as an asylum seeker.
Note: You should not apply for a passport from your home country’s embassy while in South Africa as an asylum seeker or refugee, since this may affect your asylum application or your refugee status.

WHAT HAPPENS IF YOU HAVE BEEN GRANTED REFUGEE STATUS?

If your asylum claim is accepted you will receive or can apply for the following:

I. Status Document

You will receive a formal written recognition of refugee status (Form

BI-1693) from the Department of Home Affairs, also known as a section 24 document.

II. Refugee Identity Document

Upon receiving your status document, you should immediately apply for a refugee identity document at the Refugee Reception Office.
The refugee identity document will be valid for the duration period of your refugee status i.e. 2 years and it may be renewed. You must apply for renewal of this document in person at the Refugee Reception Office prior to the expiry of the document. Home Affairs may not withdraw your refugee status and replace it with a Section 22 Asylum Seeker permit when it expires.
The refugee identity document means that you do not need to carry around your status paper.
Most banks will allow you to open up a bank account with a refugee identity document.

III. UNCTD (Refugee Passport)

Once you receive your refugee ID book, you may apply for a United Nations Convention Travel Document (UNCTD), also at the Refugee Reception Office. This is a United Nations Travel Document that is issued by the South African government specifically for refugees.

The UNCTDallows you to travel outside of South Africa.
There is a fee of approximately R115 for this passport.
The UNCTD does not allow you to travel to your home country, where you suffered persecution. The UNCTD allows you to travel to any other country, subject to the visa requirements of that country.
Note: You should not apply for a passport from your home country’s embassy while in South Africa as a refugee, since this may affect your refugee status.

IV. Permanent Residence

After 5 years of continuous residence in South Africa as a recognized refugee, you may apply for permanent residence in South Africa, if the Standing Committee certifies that you will remain a refugee indefinitely.
In order to apply for permanent residence, you must write a letter to the Standing Committee motivating your request based on the fact that you believe you will remain a refugee indefinitely due to the present conditions in your home country. You should address the letter to the Standing Committee for Refugee Affairs c/o The Refugee Reception Office Cape Town. If you need assistance preparing this letter, please contact a refugee legal counsellor.

WHAT HAPPENS IF YOUR APPLICATION FOR ASYLUM HAS BEEN REJECTED?

You will be given a written decision stating the reasons why your application has been rejected.
You have the right to appeal the decision within 30 days of the date you received the rejection letter. Seek advice from a legal counsellor about your appeal.
You must initiate your appeal in person at the Refugee Reception Office.
You may have legal representation, at your own costs, at your appeal.
The Appeal will be in front of the Refugee Appeal Board, which is an independent tribunal that offers rejected asylum seekers a second chance to prove their refugee claim. The appeal is an oral hearing where you will be given the opportunity to present your case and reasons for applying for asylum.
Normally, within 90 days of your appeal, you will receive the decision of the appeal. If you have not received the decision within 90 days, contact your legal counsellor to follow up.
If your appeal has been accepted, then you will be issued with a formal recognition of your refugee status (Form B1-1693) by the Department of Home Affairs.
If your appeal has been rejected, you do not have any right to further appeal and you will be given the opportunity to leave South Africa on your own before your section 22 asylum seeker permit expires. If your section 22 permit expires and you are found in South Africa, you may be arrested and deported to your home country.
Your appeal rejection may be reviewed by the High Court if the decision of the Appeal Board was reached improperly. This is not a review on the merits of your refugee claim; rather it is a review on “how” the Appeal Board made its decision. If the Court finds that the Appeal Board reached its decision incorrectly, the Court may send the matter back to the Appeal Board for a new appeal hearing. Please contact a legal counsellor if you wish to discuss whether your appeal rejection is reviewable.

HOW CAN YOUR REFUGEE STATUS BE WITHDRAWN?