Roni Amit - SIHMA Seminar 3 : 3 September 2014

www.migration.org.za

Toward a Regional Integrated Migration Regime: A Future Perspective

The Implications of a Regional Approach to Labour for South Africa’s Asylum System

Roni AmitPh.D., JDSIHMA & the Catholic Parliamentary Liaison Office3 September 2014

http://www.migration.org.za/


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 asylum system?



A Look at the Overall Numbers

YEAR ASYLUM SEEKERS

2002 24,187

2003 41,7412004 41,3692005 43,2892006 53,3612007 45,6372008 207,2062009 341,6022010 124,3362011

106,9042012 61,5002013 70,010



Top Asylum Nationalities in SA (over 1000)Country 2011 2013

Zimbabwe 51,031 16,420

Nigeria 2156 7363DRC 7668 7175Ethiopia 12,670 7165Bangladesh 4752 3858Mozambique 560 3751Pakistan 2929 3540Lesotho 185 3424Malawi 3774 2493

India 1159 2470Ghana 1221 2466Somalia 9986 2051China 1204 1563Uganda 1606 1371TOTAL 100,901 65,110



Asylum Seekers from SADCCountry 2013

Angola 42

Botswana 12DRC 7175Lesotho 3424Madagascar 1Malawi 2493Mauritius 0Mozambique 3751Namibia 1

Seychelles 0

Swaziland 55Tanzania 466Zambia 184Zimbabwe 16,420TOTAL 34,024



Regional Representation in the Asylum System 2011

64%

25%

8% 2% 1%SADC

E Africa & Great Lakes

South Asia

West Africa

Central Africa



Regional Representation in the Asylum System 2013

49%

17%

14%

15%2% 3%

SADC

East Africa

South Cen-tral Asia

West Africa

East Asia

Other



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?



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



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



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



Status of the 1st Safe Country Principle in Intl Law

Treaty Law1951 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’



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



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



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



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



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




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)




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



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



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



UNHCR 2014 Country Operations Profiles

• *

Country Asylum Seekers Refugees Total

Kenya 52,285 534,938 607,223* (includes 20,000 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



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?



Toward a Regional Integrated Migration Regime: A Future Perspective

The Implications of a Regional Approach to Labour for South Africa’s Asylum System

Roni AmitPh.D., JDSIHMA & the Catholic Parliamentary Liaison Office3 September 2014


Roni Amit - SIHMA Seminar 3 : 3 September 2014

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