An Interview with South African Refugee Lawyer Fatima Khan

Professor Fatima Khan is a refugee lawyer and the Executive Director of the University of Cape Town Refugee Law Clinic. The clinic is funded by United Nations High Commission for Refugees (UNHCR), the University of Cape Town, the Atlantic Philanthropies and the Sigrid Rausing Trust. The clinic houses a centre for applied research, and has provided legal assistance to refugees and asylum seekers since 1998.  Ms. Khan lectures on Refugee Law to undergraduate and graduate students at the University of Cape Town, and is currently editing and co-authoring a bound volume that will analyze refugee legislation in various global jurisdictions.

[You may stream or podcast a 20 minute interview with Ms. Khan here]

Philip Duguay: You are a scholar who studies interpretation of international refugee law across various national jurisdictions. Where does South Africa lie on the spectrum in terms of its acceptance and implementation of the 1951 UN Convention on the Status of Refugees? In other words, how much weight does the Convention carry in South African case law?

Fatima Khan: The Convention carries a lot of weight in terms of South African law. The entire Convention has been accepted into South African law. However, I must say that South African refugee law is far more progressive and advanced than the Convention, which is in my view a ‘Euro-centric’ document. The definition of the refugee in South African law, for example, is far more extensive than the definition of the refugee in the UN Convention. The UN Convention only accounts for refugee status on an individual basis, whereas that’s not the case in South African law where you can be granted refugee status on the basis of a serious disruption in the country of origin. In that case, you do not need to prove as an individual that you have suffered persecution. It is enough for you to claim status on the basis of the failed state that you have come from, or the fact that the state you have come from has been occupied. Unlike the UN Convention, that’s completely stuck on the fact that you should feel persecution as an individual, South African law is a complete breakaway from that. It is completely in line with the OAU [Organization of African Unity, now the African Union] definition.

PD: Isn’t Zimbabwe a failed state? Why don’t economic migrants from that country have the ability to seek asylum status here?

FK: Well, it would be very difficult to say that Zimbabwe is a failed state. Zimbabwe has a central government. There may be issues within the Zimbabwean government at the moment, but they clearly are a functioning government.  Zimbabwe is not your typical state where there is a ‘serious disruption of public order,’ – this is the basis on which you would be granted refugee status in South African law and also under the OAU Convention. Another ground would be that the country has been occupied, and clearly this has not happened in Zimbabwe.

PD: Right now there are 3.5 million Zimbabweans living in South Africa, the majority of whom live here because they would probably starve to death in Zimbabwe.

FK: In terms of the OAU definition and as it has been interpreted in case law, when you analyze a serious disturbance of the public order, it should be synonymous with a civil war, where it should be impossible for someone to live a normal life. Now, that clearly is not the case in Zimbabwe. People may be very, very poor there because of the failed economy, but that does not mean that there is a violent disruption and that people are unable to walk the streets and that bombs are falling, as you would have today in Mogadishu [Somalia], or Goma in the eastern DRC [Democratic Republic of Congo], for example. Those would be your typical cases where the definition would be extended to include groups rather than individuals.

PD: What are some major differences between the OAU definition of a refugee and the 1951 UN Convention definition?

FK: The group versus individual component of the OAU definition would be the major difference. South African law has extended it further. It also includes, what we call, ‘derivative’ status. If you are a ‘dependent’ of the principal applicant, you may be granted status as well. The manner in which that is extended is because a dependant is widely interpreted, or widely defined, in South Africa. In most western states, dependents would be just the nuclear family, whereas in South Africa, the term has already been interpreted far more widely. It could be your brother’s children. It could be an elderly infirm member of the family. In that way the definition is further extended.

PD: And that’s based upon community norms in South Africa?

FK: Yes. It is based upon the definition of family and dependents in South African law and norms within South Africa.

PD: Who are your clients? Where are they coming from?

FK: I think I can quite safely say that most of our clients are from other African countries. In particular at the moment that would be Zimbabwe, the DRC, Somalia, Rwanda, Burundi, the Ivory Coast, and Ghana. These are the typical nations, but we do have people from the sub-continent as well: we have people from Bangladesh, India, Pakistan, and Sri Lanka.

PD: What are the grounds on which they are making asylum claims?

FK: I would find it hard to generalize. I must say we have had a range of grounds. If we look particularly at Africa you would think it is mostly because of civil war but that clearly is not the case. We have had, for example, many African men seeking status on the basis of their sexual orientation. We have had women on the basis of gender issues such as female genital mutilation or family issues such as forced marriages. So that would give you an idea of the range, but this is in addition to the more typical cases made on the grounds of political opinion, discrimination against religious groups, ethnicity – a lot of cases are made on the basis of ethnicity.

PD: You have told me before there are some immense institutional challenges in this country – an overburdening of the system. I wonder how that affects your clients’ chances of success, assuming they have a valid case, of course.

FK: Despite the fact that we have such progressive law, we are struggling to have that progressive law implemented, for various reasons, and the major reason at this point in time, in my opinion, is lack of resources. The government just cannot cope with the number of refugees seeking asylum. They absolutely cannot cope. In 2008 and 2009, and these are recorded figures, South Africa was the country that received the highest number of asylum seekers in the world. In both years, the figures were close to a quarter million applicants. These are documented people. These are people who managed to get documented at our now seven refugee reception offices in the country. There could be as many who failed to get documented. This could be because they are disregarding the system in the country, or the Department of Home Affairs, who are responsible for the issuing of status, cannot process that many per day or per week or for the year for that matter. I know that in the Cape Town office, for example, they are processing between 350 and 400 asylum seekers per day. This is five days a week and you can do your sums! The Cape Town office might receive close to 100,000 applicants per year, and the Cape Town office and the Johannesburg office are receiving the most applications per year. A few years ago, in early 2007, the Cape Town office was processing no more than between 20 and 30 applications per day, so we know there has been a massive increase.

PD: What has changed since then?

FK: Well that changed because of litigation. Human rights activists litigated against the Department for failing to allow asylum seekers access. A structural interdict was issued by the court at the time. The Department of Home Affairs was forced to extend their services. They used to only have seven staff members in their office, and two refugee reception officers. Now we know that they have, at the first instance, 35 refugee reception officers, in addition to other staff members.

PD: What are some of the other institutional challenges?

FK: Just looking at receiving 300 to 400 people per day, you know that officials are completely over-burdened, and your status determination officers absolutely cannot, under the circumstances, conduct proper interviews. We have seen rejection letters and we know that they have just not managed to extract the relevant facts, either because of time constraints or just because they are xenophobic and not interested. The large numbers of those seeking asylum has strongly affected the officers in the course of their work. Once you are rejected by the status determination officer the matter has to go to the Refugee Appeal Board, and currently there are only four [refugee appeals] judges in the entire country. We are looking at a massive, massive backlog.

PD: You indicated to me before that 90% of cases at first instance are rejected. How many of those 90% go on to appeal?

FK: They have an automatic right of appeal…. My assumption is that most refugees know this and make an effort to get to the Appeal Board.

PD: So you’re telling me that potentially four judges are dealing with hundreds of thousands of cases per year.

FK: If you look at 2009 you have a quarter of a million people seeking asylum, so we have 225,000 cases that must be heard by the review board. That’s an impossible task.

PD: And so currently that board is hiring new judges?

FK: The board is currently in the process of hiring new judges, and they aim to have an Appeal Board of 32 judges, which is a fair number. In most jurisdictions that’s a fair number. You have a similar number in Canada and Australia.

PD: I know that South Africa exerts full jurisdiction over refugee questions via the Refugee Act of this country, but is there any overview or review conducted by UNHCR? Is there any interaction between UNHCR and the South African government?

FK: Our Act clearly states that our Department of Home Affairs, and even the Refugee Appeal Board may consult with UNHCR on matters, in particular regarding conditions in the country of origins of refugees. So there is interaction.… This is only to inform Home Affairs about those conditions. The other aspect where UNHCR can assist, and where it has vast experience, is with status determination. UNHCR is often brought in to train Home Affairs staff on status determination issues. We have participated in those training sessions with UNHCR already, so we know this has been done and is being done extensively. They intend to do this on an annual basis. On the other hand, UNHCR are assisting refugees through the status determination process in a very big way by funding people like us to help refugees through the asylum process.

PD: What practical advances in international law could make the lives of your clients better, or improve the capacity of the South African government in assisting genuine asylum seekers?

FK: Internationally speaking, what is missing in the UN Convention and the [1966] Protocol is firstly, the right to family unity. You can look at this issue in two ways: as family unity or family reunification, where certain members have already been granted status and others can come and join them. That is something that is missing in the Protocol. What is also absent, and is specifically missing in the UN Convention, is a system for assisting unaccompanied minors. This is something that can be extended in terms of international law. Furthermore, the principle of refoulement in the UN Convention is not regarded as absolute. It is restricted – section 33 restricts section 32. I think in international law we have made so many advances in that area, especially with the adoption of the Convention on Torture. That is something that should be acknowledged in a further protocol. It should be an absolute right that should not be restricted. Would you return somebody to Rwanda where you know that person will be executed? Or, should you return the Rwandan genocidaire to ICTR [International Criminal Tribunal for Rwanda], where he will be punished, but he will be served a punishment that is not cruel or inhumane. No one should be returned to a place where they will face cruel or unusual punishment.