The copyright of this thesis vests in the author. No quotation from it or information derived from it is to be published without full acknowledgementTown of the source. The thesis is to be used for private study or non- commercial research purposes only. Cape Published by the University ofof Cape Town (UCT) in terms of the non-exclusive license granted to UCT by the author. University 1 ....“We’d Go Home If We Could”..... Political Xenophobia, Citizenship and Human Rights of Asylum Seekers and Refugees: Cape Town -- A Pilot Study Kristin Anderson {ANDKRI001} Town Cape A minor dissertation submitted in partial fulfillment of the requirements for the award of the MPHIL degree, Master of Social Science in Justiceof and Transformation Faculty of the Humanities, University of Cape Town, 2011 COMPULSORY DECLARATIONUniversity This work has not been previously submitted in whole, or in part, for the award of any degree. It is my own work. Each significant contribution to, and quotation in, this dissertation from the work, or works, of other people has been attributed, and has been cited and referenced. Signature: Kristin Anderson Date: January 25, 2011 2 Abstract This thesis is concerned with the conceptions of three key and interactive groups -- human rights lawyers/advocacy officers, asylum seekers and refugees, and Department of Home Affairs officials -- who are in different ways involved with asylum seekers and refugees in Cape Town in the dual contexts of the new rights-based Constitution and the recurrence of political xenophobia More specifically the thesis investigates their respective conceptions of (human / constitutional / legal) rights, citizenship and political xenophobia This thesis analyzes the respective conceptions of these three groupings with the following inter- related general research objectives: • To investigate what the three different groups consider refugee/asylum seekers’ human rights and/or status as non-citizens under the Constitution • To ascertain how conceptions of (non-)citizenship and human rights of all three groups relate to the recurrent problem of political “xenophobia”. • To investigate relevant understandings of the distinctive legal status and transitional situation of refugees/asylum seekers with temporary domicile as distinct from immigrants as prospective citizens. Town • To explore how the conceptions of refugee and asylum seekers’ human rights and citizenship have consequences for the practice and dealings of Home Affairs. The research is a qualitative pilot study that analyzes the material generated from in-depth, semi- structured interviews. The respondents -- four humanCape rights lawyers/advocacy officers, ten asylum seekers and refugees, and four Department of Home Affairs officials -- do not constitute representative samples but do illustrate some typicalof conceptions of from each group. The findings are thus not meant to be generalizations of what all members of these groups believe but aims to identify key issues for further research. The findings outlined in the study fall into four themes: 1. The paradox of refugee rights: Constitutional provision versus effective rightlessness: The findings suggest that although the respondents hold the Constitution in high esteem in providing for the rights of everyoneUniversity they also argue that in practice there is a denial of refugee and asylum seekers’ rights under the Constitution, making them effectively rightless. This must raise questions about the general implications, as well as the comparative advantages and disadvantages, of the South African provisions of basic rights to “everyone” rather than these being linked to citizenship. At the same time a central finding of the thesis is that, unlike immigrants, refugee and asylum seekers do not primarily conceive of themselves as prospective citizens. This differs significantly from the self- conceptions of other types of migrants who do think of themselves as potential long-term members of South African society. 2. Statelessness, refugee rights and the problem of agency : A main theme in our findings concerns the implications of the position of refugees at the practical level of agency: as non-citizens they are not in a position to mobilize themselves to ensure protection 3 of their rights The human rights lawyers may inadvertently add to this by taking a paternalist protective role towards asylum seekers and refugees while the DHA officials consider them primarily as objects for policy implementation. To some extent the refugees and asylum seekers tend to look to the international community as a different arena of mobilizing more effective protection of refugee rights in practice, not that of the internal politics of the host society but rather the intermediate sphere of international civil society and legal organizations. 3. The Constitution, changing institutional culture and “implementation” as the key to introducing new refugee rights practices: All groups of respondents agreed on the significance of the Constitution and applicable legislation for ensuring the rights of refugees and asylum seekers in South Africa. At the same time they also highlighted the practical obstacles to, and constraints on, the effective practice of refugee rights. Generally, these practical obstacles and constraints point to the need for major institutional and structural changes. This raises questions concerning the kind of changes in institutional culture that might further a more professional and rights-based bureaucracy accountable to the Constitution rather than merely following the instructions of their superiors. 4. Rights-based approaches to political xenophobia as the cause and/or consequence of the crisis of refugee rights Town On critical analysis it appears that advocacy of a rights based approach to the refugee crisis and recurrent xenophobia tends to be circular in so far as it both looks to the state for the ‘answer’ to the basic problem of entrenched rights abuses but also conceives of the state as the source of the problem itself. Respondents assume that the state should be responsible for curbing xenophobia and for the protection of asylum seekers/refugee rights but also contendCape that the state is incapable of doing so. A more pragmatic approach to the reoccurring xenophobic violence and political xenophobia could be to foster stronger agency with refugees and asylumof seekers. Rather than assuming that the state should take a lead in the recognition of refugee rights it may be more proactive to have other outside agencies taking a stronger role. The historical analogy of the anti-apartheid struggle - which was primarily initiated by non-state and illegal political organizations - could serve as a model for fashioning an alliance of refugees/asylum seekers, NGO’s human rights advocates that might begin to initiate changes in the institutional culture of state institutions. University 4 Table of Contents Acknowledgements 8 Terms 9 Acronyms 11 Chapter 1 Introduction 1.1 Introduction 12 1.2 Problem Statement and Research Question(s) 13 1.3 Research Design and Methodology 14 1.3.1 Limitations and Reflexivity on Possible Personal Bias 15 1.3.4 Research Ethics 15 CHAPTER 2 Historical Background and Context: From excluding citizens under apartheid to political xenophobia against refugees in the newly democratic SouthTown Africa 2.1 Exclusionary citizenship under apartheid 17 2.2 Migration and refugees under apartheid 18 2.3 The Department of Home Affairs under apartheidCape 19 2.4 Migration flows into post-apartheid Southof Africa 20 2.5 Citizens and non-citizens in the new Constitution 20 2.6 Post-apartheid Refugee and Immigration legislation and practice 21 2.7 Xenophobic violence 23 2.8 South African policy responses to, and debates on, the xenophobic violence.24 Chapter 3 LiteratureUniversity Review 3.1 Citizenship, Territorial Sharing and Migration 26 3.2 The origins and development of notions of “refugees” 26 3.3 Hannah Arendt: the Scandal of Human Rights and the Position of Stateless Peoples and Refugees 27 3.4 Civil and social dimensions of citizenship: implications and consequences for refugees and asylum-seekers 29 3.5 Rights and duties of citizens and of refugees/asylum seekers 30 3.6 The status of refugees in the Constitution and Bill of Rights 31 5 3.7 The development of a new legislative framework for migration and refugees 32 3.8 Conceptualizing Popular and Political Xenophobia 34 3.9 Xenophobia in post-apartheid South Africa 35 3.10 Conclusion 36 Chapter 4 Human Rights Lawyers’ Conceptions of Human and Legal Rights and Political Xenophobia in dealing with Refugees and Asylum Seekers 4.1 Introduction 39 4.2 Unpacking the human rights lawyers’ conceptions of the rights of refugees and asylum seekers 40 4.2.1 Legal and human rights 41 4.2.2 Constitutional rights of refugees and asylum seekers as non-citizens 42 4.2.3 Differentiating the rights of refugees and asylum seekersTown from those of Immigrants 44 4.2.4 Civil & political rights versus socio-economic rights 45 4.3 Refugee rights in practice Cape 46 4.4 Immigration and refugee legislation andof the legal rights of non-citizens 47 4.4.1 The historical legacy: The Aliens Control Act (1991) 47 4.4.2 The Refugee Act 1998 49 4.4.3 The Immigration Act 2002 49 4.5 Implementation of refugee legislation 50 4.5.1 DefectiveUniversity comprehension of the legislation 50 4.5.2 Lack of Resources 51 4.5.3 Corruption and Accountability 51 4.6 Political xenophobia as cause and/or consequence of the violence to non-citizens 52 4.7