Refugee Legislation in South Africa: A Feminist Foreign Policy Analysis - Part 2

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This is the second part of a two part series that utilises a feminist foreign policy (ffp) framing to analyse refugee policy in South Africa. The study was undertaken as part of the completion of an MSc in African Development. Part 1 previously outlined the feminist foreign policy principles, migration legislation and discourse analysis that I engage with in my analysis to determine the extent of gender inclusivity in refugee law. The second and following part explores ideas of national security and sovereignty which dominate discussions about the asylum regime to provide a contextual understanding of the barriers to a gender sensitive refugee policy in South Africa. This section will show that these barriers are often rooted in a wider debate about the economics of migration, which helps explain recent changes to the country’s refugee policy.

Drawing upon a feminist foreign policy (ffp) analysis which foregrounds the recognition that policy is embedded within its political context, this study uses discourse analysis. This method is in keeping with a long-standing feminist focus on discourse analysis as a means through which one can explore the effect of discourse on gendered experiences and relations (Connelly, 2000). This study explores the views of prominent members of South Africa’s Department of Home Affairs (DHA) through press statements and interviews between 2015-2017. In 2015 there was an upsurge in xenophobic attacks in South Africa leading to seven deaths and subsequently strained relations between other African nations, particularly the Malawian government which made efforts to repatriate its citizens (Misango and Monson, 2016). These years, therefore, give an understanding of the political climate at the time of drafting the White Paper on International Migration to South Africa which proposes the restrictive amendments which are due to be finalised in the first quarter of 2019, as outlined in Part 1. The tensions and incongruence of immigration legislation has, however, been long evident within the country (Alfaro-Velcamp and Shaw, 2016). These conditions propose barriers to a gender-sensitive migration policy in South Africa.

Economics of Migration

The White Paper on International Migration 2017 has proposed substantial changes to South Africa’s asylum regime (Crush, 2017). The White Paper is an attempt to address the challenges brought about by mixed migration flows to South Africa and the country’s porous borders. The paper outlines how South Africa’s ‘international migration policy has not sufficiently responded to inward mixed migration flows primarily from our immediate and regional neighbours’ (White Paper on International Migration, 2017). This, the paper continues, has resulted in economic migrants being unable to gain appropriate visas and work permits and has resulted in the abuse of the asylum system by economic migrants (White Paper on International Migration, 2017). Situating the study within this context draws on a ffp effort to recognise all policy as politically and socially embedded. By this I refer to the political, economic, and social structures which influence the policy (Marshall, 1999). For example, a feminist policy analysis critiques foreign policy analysis that lacks an appreciation for the context-specific influences within which it is shaped, as previously debated in Part 1. By focusing on the political context which shapes policy making in this way, ffp considers what the state prioritises, and the broader political and social trends which influence these priorities.

Former Minister of Home Affairs, Malusi Gigaba, summarises the case in South Africa, suggesting that,

“in South Africa we have a situation of economic migrants seeking for jobs, but they are not in the bracket of critical skills, they are low skilled people, and we don’t have permits for that, so they go to the process of asylum seeker which is clogging the system” (Malusi Gigaba, 2016).

This concern for ‘clogging up the system’ dominates the discussion about economic migrants posing as refugees in South Africa but is part of a global trend and outdated legal definitions in the asylum-seeking process (Betts and Collier, 2017). This concern motivates the proposed White Paper amendments and detracts from the recognition of specific vulnerabilities amongst asylum-seekers. This concern is underpinned by misleading conceptions of migrants, and asylum seekers, as risks to national security, with the suggestion that,

“We need to attract people with skills and ensure that tourists are able to come to our country, but as we do that we need to ensure the security of the country and protect the sovereignty of the South African government” (Malusi Gigaba, 2016).

Whilst national security as a theme is unexpectedly evident since the introduction of refugee policy with the Refugee Act of 1998, its frequency appears to gradually and steadily increase and has become the core concern of amendments to the refugee system in both the Green Paper (2016) and White Paper on International Migration (2017).

Refugee or Economic Migrant?

Attributing the failures of the refugee system to the prevalence of economic migration flows to South Africa helps explain the radical shift in refugee policy. One suggestion was that only 5% of those applying for asylum actually meet the criteria for refugee status whilst the rest are economic migrants (Department of Home Affairs interview, 2017). The dominance of economic migrants in discussions relating to asylum seeking is an indication of challenges mixed migration poses to the country’s convoluted migration policies.

“South Africa has 24% unemployment, what will come second is someone who is persecuted in their own country. We will take responsibility for that. [But] the countries of the world never agreed to take responsibility for those who are facing economic challenges” (Mkuseli Apleni, 2017).

Understanding the context in which refugee policy is grounded lends to a ffp analysis of its gendered implications. In this particular case, the economic burdens placed on refugees are better understood as part of a failure to recognise vulnerabilities within refugee populations and within a broader debate about the challenges presented by South Africa’s mixed migration flows (Crush, 2017).  At no point was there any direct reference to gender or to any other aspect of social characteristics that might in turn increase a refugee or asylum seeker’s vulnerability. Recognising this vulnerability within its wider political context suggests ffp has something to offer in the way of power analysis (Lee, 2018). For example, the extent to which marginalised communities’ interests are represented and protected by legislation and the degree to which these groups are involved in the policy making process. As outlined in Part 1, in a ffp perspective, policy cannot and should not be separated from its context as this separation is misleading and makes it impossible to encapsulate the complexity of lived experience.

These reforms mark the official turning point for the asylum system in South Africa that has been culminating for some time. The White Paper (2017) reveals an explicit assumption that the refugee system is inherently linked to that of economic migration. In justification, the policy frequently evokes the right of a sovereign state to maintain control over its borders and migration policy and reaffirms this sovereignty as a constitutional right (White Paper on International Migration, 2017). The route out of refugee status and into citizenship has been severed with the latest reform. It will be replaced with a points-based system for both short-term and long-term residency permits for which refugees will have to qualify if they desire (Green Paper on International Migration, 2016). It will be interesting to see with time what changes this policy reform might bring about in relation to the demographic breakdown of those applying for asylum in South Africa, given an increase in the number of women migrating to South Africa independently of spouses or partners (Mbiyozo, 2018).

Conclusion

Overall, a feminist foreign policy framing of refugee legislation in South Africa has offered two important insights. Firstly, that there is a lack of recognition of the gender-sensitive vulnerabilities and risks experienced in the asylum system across all South African refugee legislation. These policies fail to understand how socio-economic characteristics might inform hierarchy and vulnerability amongst refugees which have been seen to contribute to economic hardship and security risks. A ffp agenda would seek to integrate a politics of recognition into the migration policy sphere to better account for these vulnerabilities. Secondly, by focusing on gendered aspects in both subject and analytical perspective, a feminist foreign policy approach challenges hegemonic ones by asking questions concerning how marginal groups are represented, and thus how they can be better integrated into the policy making process. This has the potential to destabilise traditional notions of the state’s role in policy, recognising that the state has an active role to play in perpetuating or challenging these inequalities which are embedded in the structural and political context of South Africa. Only by building on these insights will South Africa develop a gender-sensitive refugee system.  


Alex Farley holds an MSc in African Development from the London School of Economics. Her research focuses on the intersection between gender and migration. Follow her on Linked In.


Interviews :

M. Gigaba, Home Affairs Defends New Visa Regulations, 14 August 2015, SABC Digital Media News

M. Gigaba, The Desmond Tutu Refugee Reception Centre Launch In Tshwane, 17 February 2017, SABC Digital Media News

M. Apleni, The Impact of new Regulations on Asylum-Seekers and Refugees, 19 June 2014, SABC Digital Media News

M. Gigaba, New immigration laws are here to stay, 4 June 2015, SABC Digital Media News

M. Gigaba, Department of Home Affairs Launches Inaugural Naturalisation, 28 June 2016, SABC Digital Media News

M. Gigaba, Minister of Home Affairs on World Refugees Day, 19 June 2016, SABC Digital Media News

M. Apleni, Mkhuseli Apleni on the Poor Treatment of Refugees, 20 June 2018, SABC Digital Media News

M. Gigaba, Malusi Gigaba on the New System for Visa and Permit Applications, 13 July 2014, SABC Digital Media News

M. Gigaba, Home Affairs White Paper on International Migration, 15 May 2017, SABC Digital Media News

D. Gumede, Parliament Held Public Hearing on Refugee Amendment Bill, 15 November 2016, SABC Digital Media News

M. Gigaba, Cabinet Approves Refugees Act Amendments, 27 September 2015, SABC Digital Media News

List of references:

Alfaro-Velcamp, T. and Shaw, M. (2016) Please GO HOME and BUILD Africa: Criminalising Immigrants in South Africa, Journal of Southern African Studies. Routledge, 42(5), pp. 983–998.

Alwan, C., Weldon, S. L. and Weldon, A. (2017) What is Feminist Foreign Policy? An Exploratory Evaluation of Foreign Policy in OECD Countries.

Crush, J., Skinner, C. and Stulgaitis, M. (2017) Rendering South Africa Undesirable: A Critique of Refugee and Informal Sector Policy, (Accessed: 12 June 2018).

Hiropoulos, A. (2017) Migration and Detention in South Africa: A review of the applicability and impact of the legislative framework on foreign nationals, (Accessed: 12 June 2018).

Lee, D. (2018) What is Feminist Foreign Policy? Analysis of Canada’s Feminist International Assistance Policy, pp. 1-51.

Marshall, C. (1999) Researching the Margins: Feminist Critical Policy Analysis, Educational Policy. Sage Publications: Thousand Oaks, CA, 13(1), pp. 59–76.

Mbiyozo, A. (2018), Gender and Migration in South Africa, Institute for Security Studies, pp. 1-36.

Misango, J.-P. and Monson, T. (2016) Non-Nationals in South Africa, (Accessed: 12 June 2018).

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