Internationally, refugee law provides that where refugees find themselves with little hope of getting back home “for the foreseeable future” because of the long term political problems back home, their countries of asylum (the countries to which they have fled) should offer them a long term or “durable” solution to their situation.
Source – Chris Watters
For that reason, the Refugees Act, 130 of 1998, states that after being a refugee for five years, the refugee can apply for permanent residence.
However, before the refugee can apply for permanent residence (on the grounds of being a refugee), he or she must, in terms of section 27(c) of the Refugees Act, obtain a certificate from the Standing Committee for Refugee Affairs [“SCRA”]. That Committee must first certify that the refugee will remain a refugee “indefinitely”.
What matters here is what the word “indefinitely” means. The Oxford English Dictionary says that it means (in this context) for an “unlimited” period. The concern is how can anyone possibly meet that threshold? How many apparently intractable political situations have become resolved against all the odds? So does that mean that no-one then can get the certificate?
So, how does the average Joe Refugee then get permanent residence? Until a few years ago, the SCRA had adopted a policy position that “indefinitely” would mean “for the next twelve months”. A decent and humanitarian gesture indeed – and entirely consistent with the aims and objects of the Act, in my opinion.
But the SCRA has changed its mind. The SCRA has confirmed that it now applies the dictionary meaning of the word “indefinitely”. Consequently, applications for the certificate by refugees from countries with political, military and other such problems and with no obvious end in sight, are being declined.
So what are the options for the affected refugees?
One option has to be to challenge the constitutionality of the term “indefinitely” in the subsection and to challenge the reasonableness of some of these findings.
There is however another option for some refugees. This based on the fact that the Department of Home Affairs accepts that it is lawful for refugees (and asylum seekers) to apply for and hold temporary residence permits issued in terms of the Immigration Act – at the same time as having asylum seeker and/or refugee papers.
So, for example, if the refugee has what is prescribed to be a scarce skill eg an IT network engineer and has been employed in that field for five years, the refugee would, in principle, qualify for a temporary quota work permit (usually issued for between three and five years).
Moreover, and importantly in this context, he or she would also qualify for permanent residence – on the grounds of having the prescribed scarce skill.
It is important to stress that the refugee (or asylum seeker) will now be applying for a permit in terms of the Immigration Act – entirely unrelated to their status as a refugee or asylum seeker. Consequently, he or she must meet all the requirements of the permit they wish to apply for. The only concessions made to their status as refugees is that they do not need to have a passport from their country of origin nor do they need a police clearance from that country. It is equally important to stress that the refugee or asylum seeker retains that status as well – and the relevant rights, duties and protections attaching to that status.
For some, given the wording of the Act and the current ‘policy’ regime from the SCRA, seeking relief via the Immigration Act may be the only practical route to getting some finality and certainty into their lives.
So the moral of the story is that it is very important for refugees to prepare a comprehensive CV and to present it to their legal representatives to assess, in case he or she has rights in terms of the Immigration Act too.