Rights Organisations Criticise Proposed Refugee Law

Home Affairs published a draft White Paper in December on citizenship that adopts the First Safe Country Principle as its guiding principle.

• Home Affairs has published a draft White Paper on citizenship adopting the First Safe Country Principle, which makes asylum seekers who pass through safe third countries ineligible for asylum in South Africa.
• The Scalabrini Centre has criticised this because a majority of African countries criminalise homosexuality and lack legal protections against gender-based violence, meaning they cannot be considered safe.
• Lawyers for Human Rights warns the policy raises constitutional concerns including violations of rights to dignity, equality and access to courts.

In December, the Department of Home Affairs published the Draft Revised White Paper on Citizenship, Immigration and Refugee Protection. Opportunity to comment on the paper closed on the weekend.

According to the department, the White Paper adopts the First Safe Country Principle as the guiding principle for refugee policy in South Africa.

According to this principle, “asylum seekers who have been granted refugee status or lawful protection in another country, or who pass through safe third countries to reach South Africa, are ineligible for asylum in South Africa”.

Home Affairs claims that this will deter migrants and refugees from “picking and choosing South Africa as their preferred destination to claim asylum”.

The introduction of the White Paper comes after numerous court judgments have raised the alarm on xenophobia in South Africa and actions of vigilante groups such as Operation Dudula.

In November, the high court in Johannesburg stressed that “human dignity has no nationality”, warning that “the fact that an individual is a non-citizen or undocumented does not mean that her / his basic human rights can be violated without consequences”.

In December, in a separate but related matter, the same court stated that “Xenophobia is one of the greatest threats to democracy and human rights we presently face … It is merely another kind of racism.”

The 2025 White Paper is a revised version of a paper released for public comment in late 2024. It differs from the previous version in two major respects: the government has abandoned its intention to withdraw from the major refugee conventions, and it has acknowledged its constitutional obligations in respect of refugees, their socio-economic rights, and the principle of non-refoulement.

Non-refoulement is the principle that no person may be returned to a country where they are at risk of their fundamental rights being violated. GroundUp has covered previous decisions by the Constitutional Court that applied and upheld this principle.

Concerns raised

Civil society organisations dealing with the rights of asylum seekers, refugees and migrants have raised some concerns.

James Chapman, from the Scalabrini Centre, told GroundUp that the White Paper is “a lot better in some respects from the previous version”, with the department no longer seeking to withdraw from refugee conventions.

However, the First Safe Country Principle is an attempt to “bypass” established legal protections for refugees. There is as yet no standardised approach to determine what is to be considered a “safe country”.

For instance, a majority of African countries still criminalise homosexuality. Almost none of the countries that LGBTQI+ refugees pass through on the way to South Africa can be considered “safe” for them.

Another example Chapman gave was the legal protections South Africa has in place to combat gender-based violence. In many African countries similar protections are not in place. Would these countries be considered safe for a woman fleeing abuse and violence on her way to South Africa?

Chapman said multilateral frameworks would need to be in place between South Africa and its neighbours to make the policy effective and in line with human rights.

In Scalabrini’s view, the White Paper adopts a very Western as opposed to pan-African approach to immigration, favouring privileged migrants of a certain socio-economic class over poorer migrants from our African neighbours.

Lawyers for Human Rights (LHR) also expressed its reservations about the First Safe Country Principle, describing the principle as “highly contested and context-specific”.

LHR warned that the assumption that a person has accessed or could reasonably access safety in a first country of arrival is often legally and factually incorrect.

LHR said the principle also raises constitutional concerns:

• arbitrary exclusion from the asylum system, without an individualised assessment of protection needs;
• constructive refoulement, where people are denied access to asylum procedures and indirectly forced back to unsafe contexts; and
• violations of the rights to dignity, equality, just administrative action, and access to courts.

In LHR’s view “African asylum seekers and refugees are likely to be disproportionately affected” by the adoption of this policy. For these reasons, the White Paper “represents a regressive and risky policy choice”.

Home Affairs’ embrace of constitutional and international obligations are in this respect only “rhetorical”.

“Without clear legal safeguards, regional cooperation mechanisms, and an honest engagement with the realities of migration in Africa, the policy is likely to erode refugee protection rather than strengthen it,” said LHR.

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