Following the end of apartheid in 1994, South Africa has seen a large influx of refugees and asylum seekers from across the continent. According to the United Nations High Commissioner for Refugees (UNHCR), South Africa received the highest number of asylum seekers in the world between 2006 and 2011, the majority of whom originate from countries like Zimbabwe, Somalia or the Democratic Republic of Congo. South Africa’s 2011 census, which provides the most recent official figures, found that there were about 2.2 million immigrants living in the country, representing 3.3 percent of the total population.
South Africa’s generous legal provisions, which guarantee all asylum seekers the right to work and reside legally in the country while their papers are processed, its relatively large and modern economy, and its progressive constitution make it an attractive destination. This is also true for African lesbian, gay, bisexual, transgender and intersex (LGBTI) people who seek to escape criminalisation and victimisation in their home countries. South Africa’s post-apartheid constitution was the first in the world to outlaw discrimination based on sexual orientation and gender identity.
However, peoples’ experiences on the ground are often much less favourable. Over the past decade, anti-immigrant sentiments have flared up across the country in form of large-scale xenophobic attacks, most notably in 2008, 2013 and 2015. The department of home affairs, responsible for immigration matters, is crippled by the lack of a coherent migration policy, poor management and corruption.
Victor Mdluli Chikalogwe of People Against Suffering, Oppression and Poverty (PASSOP), a community-based non-profit organisation that works to protect and promote the rights of refugees, asylum seekers and immigrants in South Africa, sheds light on the challenges faced by them, and LGBTI people in particular.
Perspectives: Migration has long been a tense issue in South African politics and society. How would you describe the current mood in the country?
Chikalogwe: The attitude of South African society towards immigrants, and especially LGBTI asylum seekers leaves much to be desired. The feeling of many ordinary South Africans on the street is that the people from other African countries have come here to wrestle away the already scarce economic opportunities available in a country with unemployment of around 27 percent. The various xenophobic flare-ups we have witnessed over the last decade are just the tip of the iceberg. Immigrants, refugees and asylum seekers from the continent face xenophobia on a daily basis: when they go shopping, when they are looking for jobs, and in the neighbourhoods they live in. Rejection, cold responses and even insults are regular occurrences in their everyday lives.
Comments made by well-known politicians like the mayor of the City of Johannesburg, Herman Mashaba, calling migrants “criminals” or Minister of Small Business Development Lindiwe Zulu calling migrants “undesirable” do not help the situation. There clearly is no political will even at the top of government to address the issues. For LGBTI people, the situation is compounded by the fact that, even though it has a very liberal constitution, South Africa is still a society full of prejudice and conservative views towards same-sex relations and gender nonconformity. Homophobic comments and, in some cases even violence, in the form of beatings, corrective rapes and killings, are part of the reality LGBTI people face. Law enforcement tends to turn a blind eye. Victims have come to realise that there is still a huge gap between the laws and their implementation in South Africa.
Many refugees and asylum seekers tell you about abuse and poor treatment by the department of home affairs. What are some of the challenges they face and their experiences?
In 2012, the Cape Town Refugee Reception Office and, a year later, Port Elizabeth stopped accepting any new cases, forcing asylum seekers in the Western and Eastern Cape to travel to Pretoria, Durban or Musina, close to the border with Zimbabwe, to renew their status. For asylum seekers in Cape Town, this means travelling to Pretoria at their own expense as frequently as every month, a journey most asylum seekers cannot afford. Asylum seekers often struggle to find employment, and employers are not keen to grant days off of work every month to renew status. Even if the asylum seeker does make it to a Refugee Reception Office to renew their status, they are often placed in queues and not serviced for days or even weeks, missing valuable time at work or school.
The conditions at these centres are squalid. In a June 2018 visit to a Refugee Reception Office, the shadow minister of home affairs remarked that he had seen animal shelters in better condition. Further, the policies used by the department of home affairs are inconsistently applied, and there seem to be no universal guidelines for accepting cases. Since December of last year, our organisation alone has seen 168 cases of refugee status withdrawal and 441 final rejections of asylum status and 713 appeal cases, many of which were administered without proper or consistent explanation. On paper, the framework that the South African government uses to evaluate asylum cases is fair and idealistic – anybody with a well-founded fear of persecution in their country of origin is eligible to apply. In practice, cases are frequently denied even with clear evidence that the asylum seeker will face dangerous circumstances if they are subjected to forced return. While the department of home affairs does not publish statistics regarding how many asylum seekers and refugees are being processed, we know that many asylum seekers are waiting for status, or have been denied despite having valid claims of persecution.
There are thousands of refugees and asylum seekers who languish for years under the stressful home affairs documentation and refugee status determination (RSD) process. Refugees and asylum applicants are frequently insulted and verbally abused by staff members of home affairs. We have seen dozens of instances where government officials and RSD officers have demanded bribe money from our clients in exchange for extensions and visa renewals. When clients refuse to pay, they have been subject to racist and vitriolic commentary, and often have their asylum documents ripped up right in front of them.
The South African government, despite having been instructed by the Supreme Court to reopen the closed centres in the Western and Eastern Cape, actively puts measures in place to make the refugee and asylum process as difficult as possible to deter new applicants and force applicants to return to their country, in contravention of the UN Convention on Refugees.
Where do most LGBTI asylum seekers come from, and what are some of the reasons they decide to leave their home countries?
There are no official statistics, but most of the cases we receive are from southern Africa. However, people come from all over the continent and even beyond, the Middle East in particular. Out of 76 cases – 53 gay men, 15 lesbians, six transgender women and two transgender men – that we have received since 2016, 15 ran away from persecution based on laws that criminalise homosexuality. The rest left voluntarily before their situation worsened.
The experiences many of the LGBTI asylum seekers have to go through in their home countries are very traumatic. They are not only faced with draconian laws but public rejection and humiliation. Many lose their jobs for being queer. More gruesomely, lesbians are often subjected to so-called “correctional” rapes, with some being forced into marriages and getting children. Gay men get gang-raped and in some instances castrated in an attempt to stop them committing “abomination”. Others are forced into mental health institutions or undignified “treatments” at the hands of churches that perform exorcisms to rid them of their “homosexual demons”.
Given these circumstances, many have to flee in a hurry without proper travel documents or money. The journey to South Africa is itself filled with dangers ranging from extortion to rape and human smuggling. Most of the countries they have to pass through on their way, like Zambia or Zimbabwe, are also very xenophobic states that sometimes detain them.
Is South Africa the oasis that many queer asylum-seekers perceive it to be?
Relatively speaking, South Africa is a safe haven, but there are also many problems. To many LGBTI asylum seekers, the realities they encounter come as a shock because of all the stories they heard about the liberal constitution and freedoms it guarantees to LGBTI people.
It already starts at the border. Despite the fact that South Africa guarantees refugee status to LGBTI people fleeing prosecution on the basis of their sexuality, some LGBTI asylum seekers are simply turned away at South African points of entry. One asylum seeker reported to us that he was told by an immigration official that “we don’t want gay people in South Africa”.
After asylum seekers express their reason for entering South Africa, they should receive a so called asylum transit permit that is valid for about 30 days and allows them to travel to one of the Refugee Reception Offices in Durban, Pretoria or Musina. Here they should be given a 6-months asylum permit. However, there seems to be an unofficial policy among home affairs officials to make the process for LGBTI people as difficult as possible. No matter how strong the asylum case is, they only grant LGBTI people 30 days before they need to extend their permit or get their case heard again. This is done knowing that some people travel up to 1,600 kilometres to get to these centres.
Many LGBTI refugees and asylum seekers favour Cape Town because it’s supposedly a very gay-friendly city. Having to travel every month to Durban, Pretoria or Musina takes a toll on their finances and, when they succeed to find work, it puts them at loggerheads with their employers. We have cases of people who travelled all the way to Musina or Pretoria from Cape Town only to be told that they need to return at a later date after waiting in a queue for a week.
Many of the officials involved with interviewing and processing LGBTI asylum seekers are outright homophobic, despite being bound by their oath of office and the Constitution not to discriminate against anyone based on their sexual orientation. They mock and humiliate LGBTI asylum seekers, asking them to “prove” that they are gay.
In the end, according to our own numbers, only 4 percent receive refugee status. The rest are either given asylum status or they are rejected completely.
All of these factors have resulted in many LGBTI refugees and asylum seekers refusing to proceed with the documentation process andchoosing to live as illegal immigrants. This denies them vital access to socio-economic opportunities like medical services, employment or housing. They also face the risk of getting deported back into the countries they fled from if arrested by immigration officials.
Some end up living in the streets, as they cannot afford decent housing, and face constant harassment from law enforcement and immigration officials.
Migrant community networks often serve as a safety net for refugees and asylum seekers through social and economic support given to each other. Can LGBTI people count on the support of their compatriots?
It’s challenging for LGBTI asylum seekers to take advantage of social networks from their fellow nationals once here in South Africa. What you need to understand is that these communities, be they Nigerian, Congolese or Ugandan, are still a kind of village community away from home. They have the same conservative beliefs and prejudices as their compatriots back home, from whom many of the LGBTI asylum seekers have fled.
In fact, LGBTI asylum seekers rarely want anything to do with their fellow tribesmen and compatriots as they have had very bad experiences with them. We have received reports where Congolese have attacked fellow Congolese LGBTI asylum seekers for “shaming” their nation. So, although social networks may have been helpful under different circumstances, they are rarely so in the case of LGBTI asylum seekers here in South Africa.
The most important social network is the LGBTI community itself and organisations in support of it.
What needs to be done to improve the situation for LGBTI refugees and asylum seekers in South Africa?
We need training for the relevant public servants to ensure that LGBTI asylum seekers are treated fairly and with dignity. Comprehensive knowledge of the rights and procedures regarding gaining refugee status based on sexual orientation or gender identity is often lacking among officials. To stamp out endemic corruption at the department of home affairs, bribery should be met with stiff penalties. The department also has to reopen the Cape Town Reception Office as a matter of urgency to facilitate easy access to services for the local refugee community.
To ensure LGBTI people can live a dignified life once in South Africa, the police urgently need to take measures to protect and properly investigate hate crimes. There is also a need for shelter, nutritional support and health services, as I have pointed out.
The ultimate solution would be, of course, to make sure that LGBTI persons are safe in their home countries. But that remains a far-fetched goal in most instances. The emergence of at least one other country on the continent willing to admit LGBTI asylum seekers would help to take the pressure off South Africa as currently the only available destination. Mozambique, for example, has already decriminalised homosexual relations and is relatively less homophobic
In the meantime, we as civil society will continue to provide safe spaces, apply pressure on government and raise public awareness.