How to apply?

Anyone who intends to apply for asylum in South Africa must declare his or her intention at an official port of entry and provide his or her names and surname, date of birth, nationality, habitual place of residence prior to travelling to South Africa and biometrics (e.g. photograph, fingerprints or retinal patterns). The Department of Home Affairs must then issue an asylum transit visa must then been issued to the asylum seeker.

This visa shall be valid for 14 days. Within that period of time, the visa holder must report in person to any Refugee Reception Office or any other place designated by the Director-General of Home Affairs.

Upon reporting or on a date allocated upon reporting to the Refugee Reception Office, the asylum seeker must submit:

  • the prescribed application form
  • a valid asylum transit visa issued at a port of entry
  • any valid identification document or a declaration of identity
  • his or her biometrics, including any dependant

Prior to being permitted to apply for asylum, any person who fails to produce a valid asylum transit visa must show good cause for his or her illegal entry in South Africa. All information contained in the application form and any documentation submitted in support thereof is binding on the applicant and may not be amended. The Refugee Status Determination Officer may require the applicant, who made an assertion in his or her application for asylum, to provide proof or corroboration of the correctness of the assertion.

An asylum seeker visa shall be issued to the applicant and contain the conditions upon which he or she may reside in South Africa, work and obtain basic education. Prior to issuing any right to seek employment to an asylum seeker, the Department of Home Affairs must assess the applicant’s ability to sustain himself or herself and any dependants.

If the right to work is endorsed on the asylum seeker visa, the employer must provide a letter of employment and undertake (1) to ensure that the asylum seeker is in possession of a valid asylum seeker visa for the duration of his or her employment and (2) to keep on record copies of the relevant visa issued to the employee at all times. If the right to study is endorsed on the asylum seeker visa, the school must provide a letter of enrolment to confirm that the asylum seeker has enrolled with their educational institution and which grade he or she is attending.

Applications for asylum must be determined after a personal interview before a Refugee Status Determination Officer on a specified date and time. The proceedings of any interview must be recorded.

During the interview, the Refugee Status Determination Officer may (a) require further information, evidence or clarification from the asylum seeker, and (b) require further information, evidence, clarification or corroboration from any other relevant person, body or source.

When considering an application for asylum, the Refugee Status Determination Officer must ensure that the asylum seeker fully understands the procedures, his or her rights and responsibilities and the evidence presented.

At the conclusion of the interview, the Refugee Status Determination Officer must either:

The Standing Committee for Refugee Affairs must review any decision taken by a Refugee Status Determination Officer rejecting an application as manifestly unfounded, abusive or fraudulent. An asylum seeker whose application for asylum has been rejected as unfounded may lodge an appeal with the Refugee Appeals Authority within 10 working days.

In addition, the Standing Committee  may monitor and supervise all decisions taken by Refugee Status Determination Officers and may approve, disapprove or refer any such decision back to the Refugee Reception Office with recommendations as to how the matter must be dealt with.

The decision

The RSDO has an obligation to provide the applicant with a written decision identifying the reasons for rejecting the application. These reasons must be adequate [PAJA, s 5(2)] and individualised to “enable the applicant to make out a proper case on review or appeal” [Khan, F & Scheier, T op. cit 165]. In addition, the decision must be “justifiable in terms of the evidence”, “related rationally to the facts” [Katabana v SCRA] and be free of error of law, such as an incorrect standard of proof [Fang v RAB].

If the application for asylum is approved, a certificate of recognition of refugee status is issued  is valid for a period of four years and is renewable. The certificate contains the person’s name, date of birth, photo, thumb print and a bar coded number. A refugee must apply for renewal of the certificate at least 90 days prior to the expiry thereof.

The refugee is entitled to an identity document, similar to a South African identity card, which must contain the identity number of the holder, the person’s name and surname, gender, date and place of birth, the country of which the holder is a citizen, if any, a recent photograph, and the holder’s fingerprints.

A recognised refugee is entitled to seek employment.

Spouse & Children

A person who applies for refugee status and who would like one or more of his or her spouse and dependants to be granted refugee status must, when applying for asylum, include the details of such spouse and dependants in the application. Any refugee whose child is born in South Africa must, within one month of the birth of his or her child, register such a child as a dependant at any Refugee Reception Office.

In determining the authenticity of a marriage declared at the time of making an application for asylum, the Refugee Status Determination Officer must authenticate the marriage certificate; and conduct an interview, separately and on the same date, with both the parties to the marriage to ascertain the existence of a genuine marriage relationship.

Both parties to a marriage who have been issued with an asylum seeker visa or granted refugee status  must, at the renewal of his or her asylum seeker visa or refugee status, as the case may be, inform the Refugee Status Determination Officer whether or not the marriage still exists by submitting an affidavit to the Refugee Status Determination Officer.

Any person who fails to declare a dependant child and subsequently returns to the Refugee Reception Office to claim asylum on behalf of such dependant child, he or she shall be required to provide proof of relationship in the form of the results of a paternity test, failing which, such child shall be dealt with as an unaccompanied child.

Any dependant must within six months of the termination of dependency apply in person for asylum at the Refugee Reception Office where his or she asylum seeker visa was issued.

Burden of Proof

According to the UNHCR Handbook [para 196],  “while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application.

Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt“.

Status determination should begin with the presumption that the claimant is telling the truth [Khan, F & Scheier, T Refugee Law in South Africa (Juta, 2014) 41]. There is a subjective and objective component to a well-founded fear. The subjective component may be based on the applicant’s reaction to events that impinge on his personality, but to make it well-founded fear, there must be other proof of objective facts that lend support to the applicant’s subjective fear [Fang v RAB]. The applicant must be given the opportunity to peruse the country data and challenge the prejudicial information considered by the RSDO [AOL v Minister of Home Affairs].

Obiter

The RSDO is not a court and is not required to prepare a judgment. Cognisance must also be taken of the large amount of refugees who seek safety in the country. However, given our history, and the manner in which other African countries supported our struggle for democracy, great care should be taken when people seek the same hospitality that their countries granted this country’s refugees during our hour of need. [Katabana v SCRA]

Interpreter

On applicant’s account, and this is the only version before the court, he did not enjoy the hearing to which he was entitled in terms of the relevant provisions of the Refugees Act, the regulations framed pursuant thereto and the provisions of the Constitution. The most egregious shortcoming in this regard, was the [Department of Home Affairs’] failure to provide an interpreter competent in English and in French, in the absence of which no fair hearing or process […] could ever have taken place [Katshingu v SCRA].

Asylum Seeker Visa Extension

Pending the decision on the asylum application, the extension of an asylum seeker visa must be made at the Refugee Reception Office where the application was submitted. However, in Nbaya, the Western Cape High Court ordered Cape Town RRO to renew or extend asylum seekers’ section 22 permit even though the permit holder had originally applied for asylum at a RRO other than Cape Town.

An application for asylum will be deemed to be abandoned if the asylum seeker did not renew his or her asylum seeker visa within 90 days after it has expired: Provided that the asylum seeker advances valid reasons for the non-renewal of the asylum seeker permit.

Asylum Seeker Visa Withdrawal

The Director-General of Home Affairs may withdraw an asylum seeker visa if the applicant is or becomes ineligible for asylum. Ineligibility includes the commission of a schedule 2 crime in South Africa, the re-availment of the asylum seeker to the protection of his or her country of origin or the participation in political activities in South Africa. The asylum seeker may make written representations within seven working days following the notification of the intention to withdraw. The Director-General must, after consideration of these representations, furnish the asylum seeker with a final decision regarding the withdrawal of the asylum seeker visa.

Travel Document

Recognized refugees are entitled to a South African travel document to allow to travel outside South Africa, except to their country of origin. In Anshur v Minister of Home Affairs [unreported], the North Gauteng High Court ordered the Department of Home Affairs to issue travel documents to the applicant pursuant to the Passport and Travel Documents Act, 4 of 1994.

An application for a travel document  must be accompanied by (1) a copy of the applicant’s certificate of recognition as a refugee, which must be valid for a period not less than 180 days at the time of submission of the application for a refugee travel document, (2) a copy of a valid identity card or document issued to the refugee, and (3) the biometrics of the refugee.

An application for a refugee travel document by a person who is under the age of 16 years, must be made with the assistance of the applicant’s parents or legal guardian and must be accompanied by (1) where applicable, a copy of the birth certificate of such person, (2) a copy of the certificate of recognition of refugee status which was issued to that person, and (3) the biometrics of the refugee.

Marriage

In Ochogwu, the Supreme Court of Appeal ruled that the ineligibility of asylum seekers, whose status has not been determined, to marry, whilst lawfully residing in South Africa, was inconsistent with the law.