The Criminalisation of Asylum Seekers: Arbitrary Detention in South Africa
This minor dissertation is a research paper on the use of arbitrary detention to criminalise asylum seekers in South Africa. After the democratic transition in 1994 South Africa became a leading destination for asylum seekers from across the African continent. South Africa’s post-apartheid immigration and refugee system were based on a human-rights approach and aimed at creating a culture of inclusion and tolerance. Despite a progressive Refugee Act, the most prominent aspect of the South African asylum system is its use of arbitrary detention as a form of immigration control. The goal of this research is to analyse the criminalisation of asylum seekers through arbitrary detention in South Africa. This is done through an analysis of the roles the Refugee Act and the Immigration Act play in the asylum process. In understanding the nexus between arbitrary detention and the deprivation of liberty, this research analyses the normative frameworks that inform international and South African legislation. The use of detention as an immigration tool has resulted in a cycle of criminalisation. The South African institutions and erroneous application of immigration laws has criminalised the act of seeking asylum - a universal human right. After an in-depth analysis of the asylum process in South Africa and how arbitrary detention has criminalised asylum seekers, this research discusses the alternatives to detention most applicable in the case of South Africa. The erroneous application of laws, politicization of asylum seekers and use of detention for administrative and deterrence reasons are the primary reasons for the unlawful detention of asylum seekers in South Africa. This research reveals that there are alternatives to the use of detention as the first port of call, this largely lies in the reform of the country’s implementation of refugee law. The progressive nature of the Refugee Act guarantees protection from arbitrary detention, by redressing the management of the asylum process and institutions, the Refugee Act can be better implemented to reflect the human-rights approach it embodies.
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