Operation Fiela: Sweeping Dignity Aside

The incident left South Africa and the world desperately calling for action on the part of the South African government. Operation Fiela, which places foreign nationals in the same category as illegal firearms and drugs to be seized, is not quite the action that many had in mind.

By allowing Operation Fiela to sweep through South Africa indiscriminately without taking into account the individual circumstances of those arrested, and failing to address less visible manifestations of xenophobic practices by the Department of Home Affairs, the government is in fact condoning institutionalised xenophobia by sweeping aside the right to dignity of foreign nationals.

Operation Fiela has been framed as an operation to do away with multiple forms of crime in “crime hotspots”. However an overwhelmingly large percentage of those arrested during the course of Operation Fiela have been so-called illegal foreigners.

This has led non-governmental organisations to state that the operation appears to be targeting undocumented migrants, a claim that has been strongly denied. The government has justified Operation Fiela’s arrest of foreigners by stating that those who are “law-abiding” have nothing to fear. What this sweeping operation fails to take into account is that the question of whether a foreigner is legal or illegal cannot be reduced to a checkbox exercise. Frequently, an individual’s classification as “illegal” is in fact not through any fault of their own, but due to policies put in place by the Department of Home Affairs that render it impossible for them to abide by the law and ensure that their permits are valid. This is particularly so in the case of refugees and asylum seekers.

Many people, including the South African police, are unaware of the process that an asylum seeker has follow in order to be apply for refugee status in South Africa or just how long the process takes. While the Department of Home Affairs purports to endeavour to determine refugee applications within six months, it frequently takes between five and ten years for a claim to be finalised. In February of this year, the Durban High Court chastised the Department of Home Affairs for having taken more than seven years to finalise the claim for asylum of a Congolese man entitled to refugee status, after which he was erroneously rejected.

This situation and these deplorable time periods are sadly the norm rather than the exception. Refugee Status Determination Officers appear to view refugee status determination as a form of influx control, rather than an investigation into whether or not an individual is in need of genuine humanitarian protection in terms of South Africa’s domestic and international legal obligations. It seems that claims are rejected on an almost blanket basis, even in cases where refugee status should clearly have been granted. This in turn clogs up the appeals process and causes claims to take an even longer time period to be finalised.

The individual concerned is forced to live life in limbo for this period and attend the Department of Home Affairs as often as every one to six months in order to extend their temporary permits. If their claim is ultimately decided in the negative, their permit is withdrawn and they are issued with a letter stating that they have a mere 30 days to leave the country. They are given no option to apply for extension of this time period, irrespective of how long it has taken to process their claim. This means that someone who has lived in South Africa and formed a home and a life for their family over ten years, is suddenly forced to pack up their entire lives and leave within 30 days. As one can imagine, there are circumstances where this is simply not possible.

What Home Affairs fails to recognise is that their ineptitude, rather than deterring migrants from entering South Africa (as some believe could be the Department’s deliberate strategy), in fact gives rise to a system liable to abuse. Asylum seekers who do have legitimate claims for refugee status, are forced to continue to live an existence in limbo, while those who do not have legitimate claims will nonetheless be able to remain in South Africa for a number of years while their claim is being determined.

Along with the unreasonably long period of time it takes to process applications, further barriers to legalising their stay have arisen for asylum seekers through policies employed by the Department of Home Affairs. In 2010, the refugee reception offices in Cape Town, Johannesburg and Port Elizabeth attempted to shut down so that new asylum seekers could not obtain permits in these centres. The Department claimed that these centres were being closed down in order to allow for the funding of a new Refugee Reception Centre in Lebombo on the Mozambican border. To this day, no express assertion of when this new centre will be opened has been given. The Supreme Court of Appeal found in strong terms that the closure of the Port Elizabeth Refugee Reception Centre is unlawful and have ordered for it to be reopened. Home Affairs has indicated its intention to take this matter on appeal to the Constitutional Court

A further policy employed by the Cape Town Refugee Reception Office has been to decline to extend the permits of any asylum seeker who did not obtain their first asylum seeker permit in Cape Town. The effect of this is that asylum seekers, including those who have been living in Cape Town for ten years or longer while waiting for their claims to be processed, are forced to find the means to travel from Cape Town to Musina or Durban as frequently as once a month to extend their permits. This not only constitutes a violation of asylum seekers’ rights to freedom of movement, equality and dignity, but for many, particularly those working to support their families, this is simply not possible.

This policy is currently being challenged for a second time in the Cape High Court. The fact that we need the courts to intervene represents the sad state of affairs. In the meantime, however, these individuals are still in possession of expired documents through no fault of their own. They consequently face the risk of being swept up and arrested in the course of the Operation Fiela raids, in spite of the fact that they may have legitimate claims for refugee status which are still in the process of being determined.

The combination of these policies appears to form part of a more subtle Fiela-type strategy, namely to sweep foreign nationals seeking asylum in South Africa into the corners of the country. This would effectively create a camp-based system in South Africa, where asylum seekers are confined to South Africa’s borders while their claims are being determined. In this way, urban areas would essentially become asylum-seeker free zones.

The problem with this lies in the fact that, due to Home Affairs’ inefficiencies in processing claims, asylum seekers may be confined to the borders for up to ten years. This is despite South Africa’s international obligations to have an integrated urban policy for refugees. A de facto camp-based system of this nature would create a potential humanitarian crisis.

Further, placing all asylum seekers in concentrated areas would also render them even more vulnerable to targeted xenophobic attacks. This is not in line with South Africa’s Constitution, enshrining dignity and respect for all. It sends a message to the public that foreign nationals are not welcome in South Africa, thereby endorsing xenophobic attitudes.

A fundamental problem with the robust Operation Fiela raids lies in the fact that many of those arrested may, in fact, be legally entitled to refugee status or other Visas under South African law, yet are in possession of expired documents because of policies such as those referred to above. While the government continues to reiterate that xenophobia and xenophobic sentiments will not be tolerated, condemnation loses all meaning when accompanied by tacit condonation.

Wallis is presently completing her Articles of Clerkship through the Legal Resources Centre (LRC). Views in this article are not necessarily GroundUp’s.