The fate of millions of displaced people is not always a priority for governments around the world. It is therefore appropriate that world refugee day is celebrated annually on June 20 to raise awareness of the challenges these people face.

Over the past decade, the South African government has shown signs of fatigue when it comes to protecting people seeking asylum in the country. He acted against the commitments and promises enshrined in the Refugee Act 130 of 1998 which entered service in 2000.

For a long time, national and international organizations, including the United Nations High Commissioner for Refugees, hailed this legislation as the most progressive in the world. The law was hailed because it sought to integrate refugees into South African society and provide them with the same constitutional socio-economic protection enjoyed by citizens.

In a recent academic document, I showed how the government is distancing itself from its commitments and promises to welcome refugees and asylum seekers as its own people and to protect them. Such a decision may be linked to the global trend of asylum fatigue, which is exacerbated by the growing fear that economic migrants are using the asylum system to enter South Africa in order to access basic services and to obtain jobs, thus presenting a potential threat to the preservation of national interests, including national resources, national security and public safety.

Nowhere is South Africa’s asylum fatigue more evident than in the amendments to the aforementioned Refugee Act. With these amendments, the government wants to make it difficult, if not impossible, for people fleeing persecution and seeking asylum to enter the country, access its national resources and enjoy the rights of refugees who are – because of of their universal nature – enshrined in the Bill of Rights. We are mistaken if we think it is about filling loopholes and loopholes in the protection offered by the law.

In their article “Making South Africa Undesirable: A Critique of Refugee and Informal Sector PolicyJonathan Crush, Caroline Skinner and Manal Stulgatis also demonstrated how national authorities place limits on the ability of refugees and asylum seekers to find safety in South Africa. They argue that these limitations are being progressively imposed “with the aim of making the country an undesirable destination for asylum seekers and refugees”. South Africa is becoming an undesirable destination by frustrating refugees and asylum seekers by limiting their access to refugee protection and the rights deriving from their refugee status. These restrictions have gradually diminished the importance of refugee rights.

The loss of refugee protection in South Africa can best be interpreted through the prism of social legal theory, which, according to Alan Calnan from Southwestern Law School in Los Angeles, understands law as “a historical social growth – or more precisely, a complex variety of growths – related to social relations and complexity”. The theory further notes that “some of these legal manifestations grow and evolve, while others wither away, or are absorbed or supplanted”. Consequently, “the law has roots planted in the history of a society, develops in the social soil parallel to other social and legal growths, linked and in interaction with the surrounding conditions”.

The gradual disappearance of refugee protection therefore seems to have emerged and evolved within the framework of the post-1994 reconstruction and development program and its legal and political procedural framework, which is morally informed by the history of discrimination, racism, repression and xenophobia in South Africa. This particular program is reinforced by Article 9(2) of the Constitution, known as “substantial, remedial or restitutive equality”.

Based on this assumption, the protection of refugees in South Africa has become infinitely complex and contested. Therefore, the government does not follow an interdisciplinary approach to provide refugees and asylum seekers with socio-economic protection.

The radical need to reduce inequalities in South Africa has the consequence of denying the protection of the rights of refugees in the pursuit of the socio-economic development of historically disadvantaged citizens. It is true that the rights and interests of refugees and asylum seekers are not given due consideration in transformative, reparation or restitution measures such as affirmative action or black economic empowerment.

This has resulted in the government’s reluctance to provide full legal protection for refugees or favorable protection for asylum seekers in the social welfare system. This approach is even more evident in their exclusion as beneficiaries of Covid-19 emergency relief packages.

The government usually justifies this exclusion by saying that many illegal aliens or economic migrants in the country could impose a significant financial burden on the state if they were to be included in subsidized socio-economic programs. This implies that refugees and asylum seekers are viewed politically as economic migrants who are in the country seeking greener pastures and not asylum.

On top of this, foreign nationals (including refugees and asylum seekers) are accused of preventing the state from providing services to South Africans, as there are so many of them in the country.

This political vision could inflame violence or xenophobic attitudes towards indigent foreign nationals, and thus could develop a national attitude of denying refugees and asylum seekers certain socio-economic rights and benefits in order to preserve these rights and benefits for vulnerable South Africans.

However, it should be emphasized that exclusion and discrimination against indigent foreigners is not something new. It is part of the history of South Africa. The exclusion of others from socio-economic protection has clearly developed as a form of discrimination in the country, which now manifests itself in institutionalized hostility and xenophobia towards other foreign African nationals.

Aditi Lalbahadur of the South African Institute of International Affairs maintains that there is a history of institutionalized xenophobia in South Africa which prevents refugees and asylum seekers from accessing state resources and obtaining the right to live and work in the country.

Institutionalized xenophobia is evident in political statements that portray both refugees and asylum seekers as bogus refugees who are in the country to reap the benefits of democracy. Their plight is not taken into account in efforts to solve the socio-economic problems affecting the society in which they live.

Therefore, socio-economic laws – enacted for the purpose of reparation – do not speak of refugee law. Moreover, it appears that the more the refugee regime is modified, the more measures are introduced to restrict access to social protection, leading to institutionalized exclusion, and not to fill gaps and loopholes in the initial refugee regime.

Legal indicators of a declining refugee protection regime in South Africa have evolved through several issues, including aspirations for socio-economic transformation rooted in historical racism, hatred and discrimination.

However, the difficulties in differentiating between the legal situations of the different categories of foreigners cannot be ignored. There is a lack of knowledge to differentiate between (i) economic migrants and foreign nationals with asylum seeker status; (ii) asylum seekers and foreign nationals with refugee status; (iii) refugees and foreign nationals with permanent resident status; and (iv) permanent residents and naturalized foreign nationals.

Unsurprisingly, they are all grouped together as foreign nationals expected to leave South Africa.

Such ignorance or inability to differentiate between categories of foreign nationals renders the principle of refugee protection opaque. This inability is linked to the country’s code of conduct which he has built for his own progress and prosperity. Brian Tamanaha of the University of Washington Law School argue that there are certain fundamental rules of social relations that guide a particular society, community or group towards viability or survival. Reputedly linked to human nature and the need for self-preservation, these fundamental rules emerge from self-interest but also from human altruism and develop in such a context.

Because members of a particular community or group understand that there are limited resources to meet their basic needs, they become hostile towards outsiders and do not want to compete with them for these resources. As Tamanaha succinctly puts it, these self-interested desires elicit or motivate the need to protect personal, community, or national resources. It is in this context that the protection of refugees in South Africa is gradually being reduced.

Due to asylum fatigue, the government is only trying to protect, preserve and safeguard national resources for the happiness of citizens, while leaving refugees and asylum seekers behind. DM