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IURI 323 2022 Study section 4.1 Part III

International Law / Internationale Reg (North-West University)

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IURI 323
International Law
Prof. Hein Lubbe & Dr. Neels Kilian
Study section 4.1 – Part III
The treatment of refugees and stateless persons

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Disclaimer
▪ The slides are NOT a complete summary of the work, it merely serves as a
FRAMEWORK to provide structure.

▪ It remains YOUR RESPONSIBILITY to SUPPLEMENT the slides with the

textbook and authority.

Prescribed study material

Study guide 18-20 & Textbook 502-538

IURI 323 2022 Study section 4.1 – 2/22

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Learning outcomes
At the end of this study section you should be able to:

▪ critically analyse the rules concerning the treatment of refugees and

stateless persons; and

▪ apply the above to factual situations.

IURI 323 2022 Study section 4.1 – 3/22

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Framework
1 Introduction
1.1 Definition
1.2 International sources

2 International law position

3 Founded fear of persecution

3.1 Race
3.2 Religion
3.3 Nationality
3.4 Member of a particular social group
3.5 Political opinion

IURI 323 2022 Study section 4.1 – 4/22

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Framework
4 SA position prior to the Refugees Act

5 SA position after the Refugees Act

5.1 Introduction
5.2 Application procedure
5.3 Asylum seekers & decisions
5.4 Amendments to the Refugees Act
5.5&6 Refugees & Immigration
5.7 Failed application & deportation

6 Stateless persons

IURI 323 2022 Study section 4.1 – 5/22

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1 Introduction
1.1 Definition of a refugee

▪ A person outside the state of his/her nationality who is unwilling or unable to

return due to a founded fear of being persecuted based on:
▪ Race
▪ Religion
▪ Nationality
▪ Member of a particular social group
▪ Political opinion

Recent development: The Global Compact on Refugees, adopted by an overwhelming

majority in the UN General Assembly in December 2018, directly addresses this growing
concern. It recognizes that “climate, environmental degradation and natural disasters
increasingly interact with the drivers of refugee movements.” -
https://www.unhcr.org/climate-change-and-disasters.html

IURI 323 2022 Study section 4.1 – 6/22

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1 Introduction
1.2 International sources

▪ After WW2 the UN High Commissioner for Refugees (UNHCR) was

established in 1950 and the Convention Relating to the Status of Refugees
of 1951 was adopted thereafter.

▪ This convention read together with its Protocol of 1967 regulates the
public international law position of refugees and gives effect to article
14(1) of the Universal Declaration on Human Rights which determines
that:
▪ "...everyone has the right to seek and enjoy in other countries asylum from
prosecution".

IURI 323 2022 Study section 4.1 – 7/22

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2 International law position

▪ NON-REFOULEMENT principle:
▪ International law prohibits a state to return a refugee to his/her
state of nationality if it is likely that he/she will be persecuted based
on factors mentioned earlier.
▪ States must rather accommodate them.

▪ Exception to the rule that states are sovereign to refuse access to its
territory or to prescribe conditions or limitations.

▪ Forms part of customary international law.

▪ What does it mean?

IURI 323 2022 Study section 4.1 – 8/22

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3 Founded fear of persecution

▪ No definition of "persecution“ but in Pitcherskaia v INS (facts - Dugard 510) the
court said that the measure is “what a reasonable person would deem offensive”
and that the intent of the state is irrelevant.

▪ UNHCR Handbook on Procedures and Criteria for Determining Refugee Status:

▪ “...a threat to life or freedom on account of race, religion, nationality,
political opinion or membership of a particular social group is always
persecution. Other serious violations of human rights – for the same
reasons – would also constitute persecution.”

▪ Two elements:
▪ Subjective: Applicant’s reaction to events in his/her state of nationality.
▪ Objective: Subjective fear must be supported by objective facts.

IURI 323 2022 Study section 4.1 – 9/22

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3 Founded fear of persecution

▪ The assessment of an application for asylum must be done on a case-by-case basis
with due regard to the individual's specific circumstances.

▪ The threat of persecution must exist for the claimant in his/her country AS A WHOLE.
▪ If there is an area in which she would be safe, her claim for asylum may be
unsuccessful.

▪ A person who has already been persecuted can still qualify as a refugee even if the
situation in his/her state of nationality changes for the better...but only "if compelling
reasons exist."

▪ "Bootstrap refugees"
▪ Persons who enter a state and only become refugees afterwards due to changing
circumstances in their state of nationality.

IURI 323 2022 Study section 4.1 – 10/22

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3 Founded fear of persecution

▪ Of the five factors, race, nationality and religion are comparatively easy
to identify as basis for persecution or fear thereof.
▪ The same cannot be said for political opinion and membership of a
social group.

▪ Explain political opinion and membership of a social group as basis for

persecution by means of examples.
▪ Political opinion – Dugard 511-513
▪ Elias-Zacarias & Re Inzuna
▪ Sosial group – Dugard 513-515
▪ Ex parte Shah, K, Fornah, Kasinga, Fang & Jacob

IURI 323 2022 Study section 4.1 – 11/22

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4 South Africa
▪ In 1995, South Africa became a party to the Convention, Protocol and the
Organisation of African Unity Convention Governing the Specific Aspects of
Refugee Problems in Africa.
▪ African Unity Convention has wider definition for “refugee” than the
UN Convention and Protocol.

▪ South Africa had no specific legislation with regard to refugees and all
cases were governed by the Aliens Control Act of 1991.

▪ South Africa adopted the Refugees Act 130 of 1998.

IURI 323 2022 Study section 4.1 – 12/22

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4 SA position prior to the Refugees Act

Aliens Control Act

▪ Everybody who did not have South African nationality were regarded as
aliens.

▪ Must have a residence or immigration permit and without it is

automatically an illegal immigrant.

▪ Persons who applied for asylum or refugee status received a residence

permit subject to conditions and limitations only valid for a certain period.

▪ Kabuika and Baromoto-cases?

IURI 323 2022 Study section 4.1 – 13/22

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5 SA position after the Refugees Act

5.1 Introduction

▪ Confirms the international law prohibition (non-refoulement), the

objective and subjective element of a founded fear and the definition of
"persecution" based on the five factors mentioned earlier.

▪ Persons suspected of having committed crimes against the peace and

security, war crimes, crimes against humanity, will NOT qualify for refugee
status.

▪ Persons who enjoy the protection of any other state, will not qualify as
refugees.

IURI 323 2022 Study section 4.1 – 14/22

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5 SA position after the Refugees Act

How does the definition of a refugee differ from that in international

instruments?

▪ The Refugees Act uses broader terms to describe a refugee.

▪ Apart from the circumstances used in international instruments, the following

is also included:
▪ Foreign aggression, occupation, foreign domination, and serious
disturbance of public order.

▪ “…in either a part or the whole of her country..."

▪ In line with the 1969 OAU Convention.
▪ Wider than "The threat of persecution must exist for the claimant in her
country as a whole."
IURI 323 2022 Study section 4.1 – 15/22
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5 SA position after the Refugees Act

▪ A refugee will under the following circumstances seize to qualify for

refugee status:

▪ Protection from own state.

▪ Reacquires nationality.
▪ Acquires nationality of state in which he/she sought asylum.
▪ Voluntary re-establishes him/herself in state of original nationality.
▪ Circumstances in his/her state of nationality changes for the better.

IURI 323 2022 Study section 4.1 – 16/22

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5 SA position after the Refugees Act

5.2 Application procedure

▪ The procedure is similar to that of the Aliens Control Act.

▪ Applications are made in person to a refugee reception officer at any
refugee reception office.

5.3 Asylum seekers & decisions

▪ Pending the outcome of the application, refugees are allowed to study or

work.
▪ Section 33: Just administrative action
▪ Four different decisions can be made - see Dugard 523-526.

IURI 323 2022 Study section 4.1 – 17/22

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5 SA position after the Refugees Act

5.4 Amendments to the Refugees Act

▪ Since 2008, the legislature has enacted changes, but except for the 2015
amendment the amendments have not come into force.
▪ Read Dugard 527-531, and just take note of these amendments that
might come into force by the time you are in practice.

5.5 & 5.6 Refugees & Immigration

▪ Limited provision is made for refugees who apply for residence and
immigration permits – see Dugard 531-532.
▪ Note that although refugee law and immigration law overlap, they are
separate regimes – see Dugard 531.
IURI 323 2022 Study section 4.1 – 18/22
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5 SA position after the Refugees Act

5.7 Failed application & deportation

▪ “…people who, after due consideration of their claims to asylum in fair

procedures, are found not to qualify for refugee status, nor be in need of
international protection [and thus] are not authorized to stay in the country
concerned.”
▪ South Africa has two policies – see Dugard 533:
▪ Voluntary return
▪ Detention & Deportation

Ineffective protection in South Africa

▪ Read Dugard 533-534 and express yourself critically on the level of protection
that refugees enjoy in South Africa.

IURI 323 2022 Study section 4.1 – 19/22

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6 Stateless persons

▪ This right is not always realised, but human rights law has created a solution to
ensure that these individuals’ human rights are protected.

▪ The 1954 Convention relating to the Status of Stateless Persons, and the 1961
Convention on the Reduction of Statelessness are the key international
conventions addressing statelessness.
▪ They are complemented by international human rights treaties and provisions
relevant to the right to a nationality.” - https://www.unhcr.org/un-conventions-on-
statelessness.html

IURI 323 2022 Study section 4.1 – 20/22

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6 Stateless persons
▪ South Africa is party to neither of these conventions, but it is
nevertheless obligated to protect the right to nationality under various
international human rights instruments.

▪ Statelessness takes two forms, but their effect is the same:

▪ De facto?
▪ De jure?

▪ Without legal mechanisms in place for identification and documentation,

stateless persons face practical and legal problems in their everyday lives
▪ Employment, registering for health care and education…

IURI 323 2022 Study section 4.1 – 21/22

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6 Stateless persons
▪ Read Dugard 536-538, and make short notes on the following cases
indicating that you grasp the consequences of being stateless:
▪ Nibigira v Minister of Home Affairs
▪ B NO v Minister of Home Affairs
▪ DGLR and KMRG v Minister of Home Affairs

▪ What domestic legal protection exists for stateless persons in South

Africa?
▪ See Dugard 538.

IURI 323 2022 Study section 4.1 – 22/22

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