The Government of South Africa is committed to the granting of asylum to refugees; to provide them protection; and to search for solutions in line with its obligations and responsibilities which it assumed under the International Law, as well as by incorporating a number of basic principles and standards in the Constitution

It is perhaps important to point out the difference between the provisions of the 1951 UN Convention and its 1967 Protocol on the one hand, and the 1969 OAU Convention on the other hand. The 1951 UN Convention requires an asylum-seeker to demonstrate a direct and personal "well-founded fear of persecution" to be granted refugee status. In the case of the 1967 Protocol, refugee status includes "those compelled to leave their country for reasons of external aggression, occupation, foreign domination or events seriously disturbing public order either in part or the whole of the country of origin."

The Green Paper on International Migration, published in May 1997, argued that refugee protection is fundamentally a human rights issue (as opposed to a migration issue) and proposed four principles that should underpin refugee policy and legislation:

1. It must be temporary: refugee protection is not an alternative or backdoor to permanent immigration and, as is recognised internationally, must always be regarded as temporary. In other words, refugees need to be protected for as long as they remain at risk and until they can return home safely.

2. It must have regard for rights: fundamentally, refugee protection is about international legal entitlements and therefore must meet four basic international standards:

• the right not to be returned to the risk of persecution (non-refoulement);
• security rights (including protection from physical attack and assistance to meet basic human needs);
• basic dignity rights (including protection against discrimination, rights to family unity, freedom of movement and association and freedom of religion); and
• self-sufficiency rights (including the right to work and education).

• the social structures of refugee communities be kept intact;
• refugees should be able to develop skills that would help them during their stay in South Africa and on their return to their country of origin; and
• contact be maintained between refugee communities and their counterparts in their country of origin.

With the exception of the need for collectivised protection, the principles proposed in the green paper on International Migration were incorporated into both the Draft Refugee White Paper and the Refugees Act of 1998. Furthermore, the Refugees Act sets out the structures and mechanisms to govern status determination procedures. These include, amongst others, the establishment of Refugee Reception Offices, the appointment of staff within the Department of Home Affairs to specifically attend to applications for asylum, and the creation of a Standing Committee and an Appeal Board to review decisions taken by officials and hear appeals by asylum seekers whose applications for refugee status have been rejected.

While perhaps not entirely perfect, the policy and legislative framework put in place by the White Paper and the Refugees Act certainly represents a significant departure from the past and is to be welcomed. However, the new law was only implemented in April 2000 and it is too soon to evaluate its effectiveness. Moreover, the reality of being an asylum-seeker or refugee in South Africa is fundamentally different from that which is envisaged by the Refugees Act.

Prior to 1 April 2000, those refugees whose applications were successful received a Section 41 permit. This permit legalised their presence in South Africa and meant they did not require additional documents such as study permits or tourist visas. Since April 2000, asylum seekers who apply successfully for legal status receive a permit in terms of Section 22 of the Refugees Act. They are, however, still not entitled to seek work or to study until they have been adjudicated upon. (According to regulations, this can only occur 180 days after the permit is issued.) All refugees are required to have their permits renewed on a regular basis (every three months).

After being granted status, refugees are entitled to the protection of government in terms of international human rights law. However, many refugees do not feel safe and protected. They point out that they do not receive material or practical assistance from either government or the UNHCR and that this exposes many of them to extreme hardship and suffering. Finding food, accommodation and jobs is a daily struggle for most of them.

In March 1998, the Human Rights Watch published a report titled: "Prohibited Persons" Abuse of undocumented migrants, asylum seekers and refugees in South Africa. In this report, they document incidents of physical abuse against asylum seekers, refugees and other foreign nationals, as well as occurrences of bribery and corruption amongst officials in the Department of Home Affairs, the South African Police Services (SAPS), the South African Defence Force (SANDF) and other agencies responsible for implementing immigration legislation. The picture that emerges from this report is a disturbing one - in addition to the trauma of having to flee their home country, refugees are further traumatised by those who are supposed to protect them. Despite the fact that the Human Rights Watch report was published more than two years ago and that the Refugees Act was subsequently promulgated, the reality of being a refugee in South Africa today has not changed in any substantial manner.

The plight of refugees and asylum-seekers must be located in the broader context of the official and public discourse regarding migrants and migration in South Africa. If popular perceptions are anything to go by, then particularly black migrants and immigrants are entering South Africa illegally in their millions, taking away jobs, depressing wages and engaging in all sorts of criminal and other unsavoury activities. Given these perceptions, it follows that South Africans hold very negative views about black foreigners - views which are not just reflected in unsubstantiated statements about the negative impact they have on South African society, but are also manifested in violence, even against those who are in South Africa legally, including refugees and asylum-seekers. At the core of the conflict, is competition for scarce resources and the perception that non-nationals pose a significant threat in terms of limited opportunities and resources.

There is merit in the argument that in terms of jobs, education, health, welfare and other opportunities and social services, South Africans should not be disadvantaged. The conflict emerges however, when non-citizens are scapegoated and held responsible for the hardships faced by poor and disadvantaged South Africans. It is this attitude - the need to blame someone or some group without looking at and dealing with the historical and structural causes of our problems - that leads to the kind of violent action against persons often described as "aliens" or amakwerekwere (a derogatory local term for black African foreigners).

We are thus confronted with a very particular dilemma - at a policy and legislative level, our commitments and obligations towards refugees and asylum-seekers are clearly outlined. In reality, however, the policy becomes almost meaningless, because it is at odds with the discourse that is communicated to South African citizens. Even the 1999 White Paper on International Migration, while recognising and acknowledging the potential contribution of migrants to the South African economy and society, focuses on the need to detect, apprehend and deport persons in the country illegally. While this is not directed at bona fide asylum-seekers and refugees, it is inevitable that they will be affected by this, despite our commitment to provide protection and safeguard their rights.

How then do we begin to address this dichotomy between policy and legislation on the one hand, and the realities on the ground on the other?

The first and most obvious route to follow is to grant refugees themselves an opportunity to participate in the shaping of mechanisms and systems that will ensure their protection, particularly in the areas of accommodation, food provision and employment. This implies that government officials who are responsible for the implementation of South Africa's Refugees Act, must actively canvass the opinions and perhaps even the expertise of South Africa's refugee communities. This also goes together with the development of strategies to ensure that non-governmental organisations that are currently involved in providing these services, are drawn in and consulted.

There is a dire need for the much more pro-active monitoring of individuals and agencies involved in the enforcement of immigration law, to ensure that the current abuse and maltreatment of refugees and asylum-seekers comes to an end. The Human Rights Commission has initiated some of this work, but there are perhaps other institutions and non-governmental organisations that can also be drawn more closely into this type of activity.

Opportunities, in the form of sports and cultural events, and perhaps even informal seminars and workshops, need to created for South African citizens and refugees to interact with and begin to develop an appreciation of each other. This can be combined with a broader strategy to engage political and civic leaders to develop and communicate a positive discourse and image of refugees and asylum-seekers, and migrants more generally.

At a regional level, it makes sense to work towards the establishment of regional networks of refugee communities and non-governmental organisations active in the field, as well as governments in the region. This can be part of a movement towards the harmonisation of refugee policies across the region and the development of a system of collectivised protection or burden-sharing.