Chris Fick & Associates

A3blRecent regulations framed to give effect to the Immigration Amendment Acts, have many South Africans wondering whether someone dozed off and misunderstood what Mr Frost was really talking about when he said “Good fences make good neighbours.”

Being the “gateway to Africa” comes not just with trade benefits and prestige, but also with duties and responsibility. Our constitutional democracy demands from us that we treat people with dignity and respect, and that we care for the prejudiced and helpless among our number. To understand how far we have missed this lofty goal, one only has to look at how little we understand about asylum seekers and refugees.

There is quite often a misuse of both terms and many people incorrectly use them interchangeably. An asylum seeker is a person who has lodged an asylum application with Department of Home Affairs and who is waiting for a determination on his asylum application. Upon success of the application, the asylum seeker becomes a refugee.

A refugee is defined as someone who is forced to flee their country due to a well-founded fear[1] of being persecuted on account of their race, religion, nationality, political opinion, gender, sexual orientation, or membership of a particular social group; whose life, physical safety or freedom would be 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 their country of origin; who is a dependant of any one who falls into the above categories.

Terms and Conditions on the ticket

The South African Refugee Act 130 of 1998 recognises two definitions for a refugee.

The first definition refers to people with a well-founded fear of persecution. This definition is taken from the 1951 UN Refugee Convention. It provides protection to persons fleeing their country of origin because of a well-founded fear of persecution by their government or by non-state actors that the government is unable to stop.

The second definition makes reference to people who fled their country of origin due to threats to the public order. This second definition is adopted from the Organisation of African Unity Refugee Convention and provides protection to persons who were forced to flee because of violence, war and civil disturbances in their country of origin.

In both cases, the spouse or dependent minor of a recognised refugee is entitled to refugee status, even if his or her individual claim has been rejected.


Arrival:[2] The new first point of contact with our country will be the border and its gates. These are generally manned by people in uniform. Upon arrival, the applicant will have to state that they’re an asylum seeker. Then, to give his or her justification for this claim, the same words that have evoked the persecution that lead to fleeing their home have to be spoken out loud and recorded in writing. Then they’ll be fingerprinted.

1st Interview: issued with an asylum seeker’s (section 22) permit. It is valid for 6 months and is renewable. It permits the asylum seeker to work or study within the Republic. Once the investigations have been concluded, the Department will notify the asylum seeker, either confirming that his or her grounds for seeking asylum are well-founded (in which case he or she will attain refugee status) or that the grounds for seeking asylum are unfounded. The decision of the Refugee Status Determination Officer (RSDO) may be appealed to the Refugee Standing Committee.

Appeal[3]: If the asylum seeker fails to appeal or the Refugee Standing Committee upholds the decision of RSDO, the refugee will be asked to leave the country within a stated period of time, or furnish reasons while he or she should not be deported[4].

Upon being declared a refugee[5]: This status allows the bearer to reside and to work and study in South Africa. A refugee (section 24) permit is valid for two years[6], and is renewable.

Starting a new life: A refugee holding a refugee permit for a period of five years qualifies for permanent residence in the Republic of South Africa. To submit his Permanent Residence application the applicant would need to get a certificate from the Standing Committee for Refugee Affairs certifying his or her indefinite refugee status. This delays many such applications. The board has to ascertain that the refugee will be a refugee indefinitely before issuing the certificate. It should be noted that five years residence in SA while on an asylum seeker’s permit will not allow qualification for Permanent Residence.

The Big Top

The process for gaining asylum status is onerous. The standard of proof required for granting an asylum status in South Africa is on the balance of probability, and must be considered in light of all circumstances, that is, past- and forward-looking appraisal. The burden of proof lies on the person submitting the asylum claim. An asylum seeker needs to prove that they have a well-founded fear of being persecuted, or that a real threat to his or her life and freedom exists on returning to the country of nationality. In this regard, the asylum seeker would need to produce any document which will support his or her claim. These can be newspaper articles, a country’s laws, pictures, or any country information available on the subject alleged.

The principle of non-refoulement is an International Law principle which prevents states from returning asylum seekers and refugees to countries in which their lives and freedoms may be threatened. Countries have, so far, been bound by this and it is not uncommon to hear of cases in which the UNHCR or other international Human Rights Organisations are instituting legal proceedings against states which have defiled this principle. However, refugees and asylum seekers are subject to the laws of the harbouring state.

With the recent trend of some African nations enacting anti-homosexual laws, as well as the ever-present civil unrest in several African countries, it would seem nationals from countries with anti-homosexual laws and civil unrest are, for now, likely to succeed in their asylum claims in South Africa. Hopefully, when they reach our borders, it’ll be the scent of a new day that greets them and not the smell of stale popcorn, spilled drinks, wood shavings and sweat.

Article by George Mua ( and Richard Keeton (

[1] This refers to your particular experiences and circumstances instead of the general situation in your country of origin. Your very personal response to the prospects of returning to your country of origin will be assessed together with available information on the conditions in your country of origin to determine whether you will be subject to danger if you are forced to return.

[2] While under current legislation an asylum seeker can make their refugee application at any Refugee Reception Centre in the Republic, this is soon to change.

[3] There are two kinds of appeal; if the asylum application is considered manifestly unfounded – the RSDO will send the decision directly to the SCRA for appeal/review; if its unfounded the RSDO will notify the asylum seeker of this decision and his right to appeal to the refugees appeal board.

[4] Many asylum seekers have been in South Africa for quite some time and are in relationships with South African citizens or have children with them. It will be unfair, if not unconstitutional (right to family), to deport this type of asylum seekers as they can still reside in the country on different permits depending on their relationships to South African citizens

[5] Usually, this will require a second interview to ascertain your initial claims.

[6] This used to be four years, but changed in 2013.

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This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.