Migration Policy in South Africa

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Content

South Africa as a Destination Country: Five Classic Features

Recommendations

Introduction

Migration is an important feature of South Africa’s history. The country is built on migration – whether it is migrants within the country moving from rural to urban and industrialized regions, or those from neighboring countries that venture to South Africa as contract laborers, in search of work and a better life for themselves and their families. 

For a long time, South Africa has been the primary destination country in the region, but migration patterns have changed since the 1990s. With the relaxation of apartheid policies starting in 1990, leading to the end of the apartheid system in 1994, South Africa moved toward a more inclusive, diverse, and open society, and more regular migration from other African countries emerged.

Yet, despite this long history, migration and the place of migrants in South Africa remain contested both in policy and practice. This is noticeable in how migrants are spoken of and dealt with. Migration myths abound: The current discourse on migration in South Africa often depicts immigrants as responsible for crime in the country, a strain on resources, and claims they take up opportunities that ought to be reserved for South Africans. Nuance tends to lack. At its worst, xenophobic sentiments manifest as targeted violence toward foreign nationals, primarily from other African countries.

South African migration policy and practice mirrors developments in other destination regions in Africa, Europe, and globally. In the face of high immigration rates, especially when coupled with a fragile domestic job market, governments in destination countries tend to resort to restrictive immigration and protection regimes. Migration becomes a salient and contentious issue and can fuel misconceptions and anti-migrant sentiments. Host to a fifth of all migrants in sub-Saharan Africa, South Africa is no exception. While it benefits from foreign labor, South Africa has been imposing more stringent labor migration regulations and border management. South Africa’s post-1994 crime wave in the country, partly associated with growing numbers of migrant workers and refugees, led authorities to drastically restrict access to asylum and permanent residency and to increase migrant returns. These actions show a largely inward-looking stance on migration management that prefers securitization to inclusivity and regional integration, but they have done little to decrease long-standing problems like corruption and mounting backlogs in the country’s asylum system.

This paper shows South Africa as an example for other countries of destination of migration, in- and outside the African continent. In doing so, the paper asks three questions: To what extent does the South African case show similarities with Europe as a destination of migration? How much is South Africa illustrative of the challenges of other destination countries in Africa? And what can European and German policymakers learn from South Africa’s experience?

The first section outlines how five common traits of major regions of destination for migrants have defined South Africa’s migration policy in recent years: increased levels of immigration, the debate around irregular migration, the rise of xenophobia, the predominance of deterrent policies, and the difficulty to reconcile national and regional migration policies with regards to free movement. The second section offers concrete recommendations on what European policymakers can learn from the experiences of South Africa and what they can do to support better functioning migration policies in the primary destination region in Africa. South Africa may not be Europe’s closest neighbor, but the challenges they share as migration magnets should nudge Europeans to learn from its experience, identify areas of common interest, and leverage the relationship more strategically.

While the primary focus of this paper is on South African policy and practice as adopted and implemented by the state, the perspectives of the larger South African society are also reflected. Perceptions do not always translate to reality, but the case of South Africa demonstrates how perceptions can frustrate policy efforts toward a cohesive and inclusive society. There are other key issues that are part of South Africa’s migration discussions, such as issues of asylum-seeking, international protection, brain drain, internal migration, trafficking, and smuggling, which are certainly areas of concern in South Africa today, but they fall outside the scope of this case study.

South Africa as a Destination Country: Five Classic Features

Booming Migration to South Africa: The Making of a Migration Magnet

The demand for workers has made South Africa the main destination country in Africa. Historically, regional mobility to South Africa was primarily triggered by the increased demand for labor in extractive industries. Between 1940 and 1980, for example, an estimated 1.5 million migrants from neighboring countries were contracted to work as miners and farm workers, and during the decade of 1990–2000 another 1.7 million workers were recruited from Botswana, Mozambique, Lesotho, and Eswatini (formerly Swaziland) via the Employment Bureau of Africa.

More than nine out of ten migrants in Southern Africa live in South Africa alone – more than 4.2 million out of the total 4.5 million migrants

Today, migration is a key part of the regional dynamics of Southern Africa, where mobility remains primarily circular. South Africa is host to the lion’s share of all migrants in the region. More than nine out of ten migrants in Southern Africa live in South Africa alone – more than 4.2 million out of the total 4.5 million migrants (see Figure 1). About a fifth of all 23 million migrants in sub-Saharan Africa reside in South Africa. This means Sout Africa has the tenth highest net immigration and emigration levels in the world.

While the decline in mining employment displaced many migrant workers in labor-intensive and unregulated economic sectors such as domestic work, construction, and agriculture, important migration corridors that link semi-skilled migrants with South African mines and farms remain, for example Mozambique–South Africa and Zimbabwe–South Africa. Today’s largest diasporas in South Africa are a result of these long-standing regional migration flows. Seven out of every ten foreign-born in South Africa hail from Zimbabwe, Mozambique, and Lesotho, with smaller shares of migrants from other parts of Southern Africa, as well as West and East Africa, and Western Europe, especially the United Kingdom (UK) (see Figure 2). The political stability in post-apartheid South Africa also offered a haven to refugees fleeing conflicts in nearby countries, such as Mozambique and Angola, or further afield, such as the Democratic Republic of Congo (DRC).

Women make up sizable shares of migrants: In 2019, women accounted for more than 44 percent of international migrants in South Africa. At the regional level, it is estimated that 70 percent of informal cross-border traders are women and account for up to 40 percent of all trade in the Southern African Development Community (SADC). Data from the 2011 national census and the 2012 and 2017 Quarterly Labor Force Surveys (QLFS) shows that about one in four migrant women in South Africa work as domestic workers, often with little or no labor protection.

Irregular Migration: Unclear Scope, Contentious Debate

Irregular migration is a topic of heated debate in South Africa, but its scope remains unclear. Reliable data is scarce, and official estimates vary widely from 500,000 to over 2.2 million people living irregularly in South Africa (a much higher guesstimate of 11 million is unlikely). Given the country’s population of around 60 million, undocumented migrants are estimated to account for between less than 1 percent to around 4 percent of the total population.

The fracturing of the contracted foreign labor system has contributed to spontaneous and informal cross-border movements. In the absence of legal pathways, many low-skilled migrants from the rest of Africa either enter the country unlawfully, or without sufficient documentation, or violate their visa conditions after entering lawfully by taking up employment on visitors’ visas or by overstaying – including migrants from within the sub-region as well as from outside, most notably from the Horn of Africa.

As elsewhere, irregular migrants tend to be more vulnerable to discrimination and exploitation from corrupt state officials, but this problem is particularly pronounced in South Africa. Reports suggest corruption is rampant among officials in the Department of Home Affairs. Evidence shows that migrants experience corruption at multiple stages of the documentation process and that existing laws and norms are fueling the illicit document market. Despite clear efforts to tackle the problem over the years, employees at Home Affairs themselves estimate that as many as 85 percent of staff members participate in corruption. Home Affairs also claims that irregular migration leads to corruption.

For most of South Africa’s history, undocumented migration from the region was sanctioned by the state and at times incorporated into labor supply schemes.

The current dire situation of irregular migrants is rooted in a history of denial of access to residency and citizenship for African migrants. For most of South Africa’s history, undocumented migration from the region was sanctioned by the state and at times incorporated into labor supply schemes. Until the 1960s, people from Botswana, Lesotho, and Eswatini could move freely in and out of South Africa and reside and work in South Africa. But during apartheid, immigration was shaped by a “two-gate” policy.  Migration of white people was considered desirable and thus they were allowed access through the “front gate” as their presence did not threaten the “European culture” the apartheid state sought to encourage. Meanwhile, African migrants often entered the country through the “back gate,” only tolerated as they satisfied the demand for labor in mining and agriculture. This “back gate” was characterized by policing, detention, and deportation. This was further compounded by policies restricting access to Black South Africans outside of the “homelands.”

Xenophobic Language and Attacks Are Widespread

Xenophobia and anti-migrant sentiments are widespread in South Africa. For instance, in a national survey of South African citizens conducted in 2001 by the Southern African Migration Programme (SAMP), close to half of respondents felt that migrants were a “criminal threat,” 37 percent thought they were a threat to jobs and the economy, and 29 percent considered them a health threat.

Economic worries echo particularly in the marginalized and poor Black majority under the strain of poverty, inequality, and the lack of opportunities: Unemployment sits precariously at 29.1 percent as of 2020, with higher rates among youth. Migrants and refugees in South Africa are often accused of “stealing” jobs from locals, especially as unemployment among foreign nationals is well below the national rate.

Research findings counter this narrative. The 2014 Migrating for Work Research Consortium (MiWORC), the 2018 OECD-ILO study, and the 2018 Stats South Africa report on labor market outcomes all show that while unemployment among migrants is lower than among South Africans, it does not automatically follow that they are “stealing” jobs from South Africans, since they often take on jobs locals are unwilling to perform in the service, agricultural, construction, and to a lesser extent today, mining sectors. As in other destination countries around the world, migrants tend to find employment in precarious and unregulated environments due to lower entry costs, but also due to multiple barriers in accessing the formal labor market, including difficulties in obtaining and renewing their legal documentation, accessing financial services, and opening bank accounts.

Xenophobic sentiment also marks the language and terms South Africans use to talk about migrants. Non-citizens are referred to as “aliens” or “foreigners,” but the pejorative colloquial “makwerekwere” is also common. Public discourse tends to conjure images of mass migration with metaphors of “waves,” “floods,” and “swamps” supposedly inundating the country. The climate of hostility is further sustained by media reporting and political discourse. Politicians have, for instance, alleged that undocumented migrants are responsible for the inability of the state to effectively deliver to the public, for increased crime and violence in communities, and for other societal issues. The adoption in 2019 of an action plan to combat xenophobia has done little to effectively combat xenophobic speech. 

Violent physical attacks on non-nationals are commonplace in South Africa – particularly against African foreign nationals and those from South Asia. In May 2008, a series of violent outbreaks against foreign nationals marked a peak in a sustained climate of xenophobia in the country. More than 60 were killed, over 600 injured, and tens of thousands were displaced and sought sanctuary in churches and police stations, particularly in and around the urban centers of Cape Town and Johannesburg. Police forces were late to respond, and few cases were eventually prosecuted.

Many even consider the violence justified: The 2017 Human Sciences Research Council’s Social Attitudes Survey found that 71 percent of the South African public identified the threat posed by immigrants as the main explanation for anti-immigrant violence; a third of the respondents answered that xenophobia is a response to the criminal activities of foreigners; and close to 40 percent answered that it was in response to the economic activities of foreigners.

South Africa’s Migration Policy Regime: Enforcement and Deterrence First

South African migration policy, while balanced on paper, in practice tends to tilt to the side of deterrence and enforcement. South Africa’s current vision for migration policy is articulated in the 2017 White Paper on International Migration produced by the Department of Home Affairs (DHA). The paper comprehensively encompasses all areas related to in- and outward migration. It promotes a balanced approach recognizing the opportunities of regional and international migration on the one hand, and the shortcomings of the current system on the other hand.

Overall, the White Paper puts forward six key approaches. First, it sets out a risk-based and securitized approach to migration to safeguard South Africa’s sovereignty and the safety of its citizens. Second, it seeks to uproot a system that perpetuates irregular migration and in turn “leads to unacceptable levels of corruption, human rights abuses and national security risks.” Third, it points out the problem of national attitudes toward migration. Fourth, it addresses the gaps between South African legislation and SADC objectives. Fifth, it intends to end a system that perpetuates “colonial patterns of labor production and trade” by reserving the right to migrate for those with high levels of skills and capital. Sixth, it aims to expand high-skilled immigration, while affirming a national preference for employment.

The White Paper is supposed to serve as a blueprint for revising and updating existing legislation: The 1998 Refugees Act and the 2002 Immigration Act have already been amended accordingly, the 1995 Citizenship Act is in the review process, and the Border Management Authority Act is one of the new laws that the country has adopted since the White Paper (see Figure 4).

But the laws that have been revised or drafted on the base of the White Paper do not show the balanced approach of the paper, but rather a more heavy-handed approach. The effects of this approach are visible in three central areas: immigration, asylum, and border management.

Immigration: Increased Detention of Irregular Migrants 

The 2018 Immigration Act Amendment Bill (which contains the proposed amendments to the 2002 Immigration Act that have yet to be passed into law) adds provisions on the detention of “illegal foreigners” for purposes of deportation. While the measures are presented as solutions to an overwhelmed immigration system, three worries come with this “detain and deport policy.” First, the Department of Home Affairs has a poor record with regards to running detention centers. In 2014, the South African Human Rights Commission detailed human rights abuses at the Lindela Repatriation Centre, including procedural violations, inhumane and unsafe conditions, violence, and the unlawful detention of high numbers of people. Second, the detention approach runs against the Common African Position on the Global Compact for Migration issued by the African Union. The Position specifically calls on all countries to discourage and abolish the utilization of migrant detention facilities regardless of migrants’ legal statuses given the risks of human rights violations. Third, evidence shows that detention does not actually deter migration. Instead, it pushes migrants to take greater risks. This might weaken other migration management outcomes, such as reducing the resolution of cases, shifting resources, and clogging the court systems.

Refugee and Asylum Processes: Deterring Access to ­Protection

South Africa’s asylum and refugee system is hard to access for multiple reasons. First, wait times are long and decision quality is patchy. The country’s refugee processing system is riddled with a heavy backlog – although it has largely deflated from one million in 2016 to more than 150,000 today.  Most asylum seekers wait for multiple years while their applications are being processed, leading to ever-growing numbers of asylum seekers (Figure 5). At the same time, the country has a particularly high rejection rate of 90 percent of asylum applications. While the government uses this figure to justify its restrictive measures, refugee advocates and others challenge the poor quality of refugee status determination processes and outcomes. Between 2016 and 2017, over 1,200 immigration and 1,900 asylum litigation cases were brought against the DHA. Recent statements from judges who overturned rejections have included strong indictments about the state of the asylum system. These include labelling it as “incompetent” and “deplorable” and accusing DHA officials of “showing blatant disregard for the law, dereliction of duty and bad faith.”

The DHA seems to follow the logic that reducing the incentive for migrants to apply for asylum would decrease the number of claims and allow for a more transparent and responsive system. But this rationale derives from the flawed assumption that the asylum system suffers from a high number of applicants, and not from the flawed processing itself.

Second, the DHA has also made it harder for asylum seekers to lodge their applications and renew their documentations at the so-called Refugee Reception Offices. Starting in 2011, it closed or restricted access to the offices located in urban centers, forcing applicants to resort to those located in border areas, and putting the remaining offices under more pressure. The 2017 White Paper went further, proposing the creation of asylum-processing centers, where asylum seekers would remain for the duration of the determination process. The DHA goes to great lengths to not label these as detention centers, yet the proposed methods mirror detention facilities in everything but name. The human rights costs are high and well-documented, and so are the financial costs. Building a single processing center costs about R 298 million (€17,600,000) – excluding operation costs.

Lastly, legislation also tries to decrease the attractiveness of applying for asylum in South Africa. The 2017 Amendment of the Refugee Act, for instance, removed the automatic right for asylum seekers to work, study, or conduct business. Other key amendments expanded the grounds under which refugee status can be withdrawn (i.e., by seeking consular services with their embassies) and grant authority to the DHA to close or designate a Refugee Reception Office.

Border Management: Arming the “Detain and Deport” Policy

The task of managing South Africa’s borders rests with at least seven different government departments working at ports of entry (air, land, and sea). This has proven taxing given the volume of migration in and out of South Africa. The 2020 Border Management Authority Act therefore establishes a single authority to oversee all aspects of the border environment – the Border Management Authority (BMA) will fall under the authority of the DHA, making it the leading agency for all border-related matters. The BMA Act entered into force in July 2020, and its implementation is being phased in over 15 years.

In principle, the establishment of the BMA is a positive step toward ensuring effective and coherent management of borders and ports of entry. However, there are serious concerns raised by other government authorities (such as the police, defense forces, and the revenue service) as well as by think tanks (such as the ISS) about the capacity of the DHA to lead the initiative and about the securitization of borders and the threat of corruption and abuses more broadly. A key concern is that the establishment of the BMA fuels South Africa’s longstanding “detain and deport” policy – in spite of its high human and financial cost and its questionable effectiveness.

Hesitation Toward Regional Free Movement

Not unlike other migration magnets on the African continent and beyond, South Africa’s stance on regional integration and free movement is marked by protectionist concerns. About 75 percent of all African migrants in Southern Africa are from within the region. As the main recipient of regional migration, South Africa worries about potential spikes in immigration from neighboring countries. This sometimes hinders constructive dialogue with other SADC countries: South Africa prefers bilateral and smaller multilateral arrangements on labor mobility. To this end, it established three Joint Permanent Commissions (JPCs) with Botswana, Lesotho, and Eswatini and concluded four memoranda of understanding on labor migration with Botswana, Lesotho, Eswatini, and Namibia. It is important to note that other larger economies within the regional bloc, like Botswana and Namibia, are also somewhat reluctant to regional free movement.

South African migration policies are not sufficiently aligned with its commitment to increase freedom of movement on the continent.

The publication of the 2017 White Paper seemed to indicate some willingness from South Africa to progress on regional integration. The paper concedes that South African migration policies are not sufficiently aligned with its commitment to increase freedom of movement on the continent. The paper attempts to remedy this and address the issue of irregular migration from neighboring countries by proposing the introduction of new visa options for low-skilled and semi-skilled migrants from the SADC region. These include an SADC special work visa, an SADC traders’ visa, and an SADC small medium enterprise visa for self-employed people and small business owners.

But the White Paper also makes other diverging proposals that would hinder rather than help regional mobility. For instance, it suggests the adoption of a point-based skilled immigration policy, based on the experiences of Australia, Canada, and New Zealand, to replace the current employer-driven approach, combined with a critical skills list or quota. Such a strategy would effectively make low-skilled migration – which makes up a large share of overall mobility in the region – more difficult.

Regional policies are ambiguous, too. Eighty percent of SADC citizens benefit from visa waivers or short-stay visas upon arrival (up to 90 days) in other SADC member states, thanks to the 2005 SADC Protocol on the Facilitation of Movement of Persons (see Figure 6). Additional SADC protocols facilitate the mobility of certain categories of people, such as diplomats and students. In effect, however, the 2005 protocol encourages member states to resort to bilateral agreements, especially in border-related matters, which then take precedence over the non-binding protocol. The result is that long-term regional migration is curtailed: To remain in another SADC country beyond the 90-day period, migrants must comply with national legislations and undergo bureaucratic, lengthy, and expensive verification. Those unable to provide the necessary documents may overstay their visas or choose irregular routes as an alternative.  

The trend is clear across the region: Governments do not seem ready to invest in regional integration on migration. Few countries within the region have made substantive progress toward a regional harmonization of immigration procedures, despite the work of the IOM-SADC Migration Dialogue for Southern Africa (MIDSA). Here again, the security lens might dampen the political appetite for free movement within SADC. Member states often resort to “emergency measures” to manage migration, even more so when serious security challenges exist, such as the violent extremism and terrorism in parts of northern Mozambique. Yet the dominant approach of “securitization seems to have derailed the capacity of regional governance to lower transaction costs and produce win-win outcomes” – all of them cornerstones of functioning and mutually beneficial free movement systems.

Recommendations

Migration policy in South Africa may sound foreign to European ears, but this report shows that many elements of South Africa’s migration policies and debates should sound familiar, be it securitization, increasingly toxic attitudes toward migration, flawed protection systems, or controversial efforts to harmonize migration regimes across regions.

The following recommendations identify lessons learned from South Africa’s experience and highlight common areas of interest that German and European politicians, policy experts, and practitioners should consider in their discussions with South African counterparts.

1.    Recognize a Peer When You See One

South Africa is one of the main destinations for migrants and refugees in Africa. Policymakers in Germany and Europe of course are aware that migration flows in Africa go well beyond northbound migration to European shores. However, their approach to African countries often remains tainted by stereotypes of African countries as primarily sending or transit countries, seeing past the many destination countries – some of them long-standing (such as South Africa) and some of them emerging (such as Morocco, Tunisia, or Ghana). The fact that most movement in Africa is regional and circular, and a few magnets across the continent receive the lion’s share of African migrants, is acknowledged rhetorically but not always politically. 

Acknowledging the peer status of African countries when it comes to migration issues might go a long way in improving the communication between the continents. This matters now more than ever given that Europeans are entering a critical moment for their relations with African partners – with the EU Comprehensive Strategy with Africa and the implementation of the post-Cotonou agreement with the Organization of African, Caribbean, and Pacific (OACP) countries.

2.    Learn from Our Mistakes: Assess the Costs of ­Securitized Approaches to Migration

As this report has shown, South Africa has heavily restricted access to immigration and asylum and has invested in border management and deportations. Yet given the lack of available data, it is unclear whether this policy has actually reduced migrant arrivals. South African authorities recognize the policy is costly, and rights organizations claim it does not comply with refugee rights. Yet authorities have done little to address the shortcomings of the system, especially backlogs and corruption, which have in fact worsened as Refugee Reception Offices have closed and/or are operating at reduced capacity.

South Africa’s experience should invite policymakers in Europe to reflect on the costs securitized approaches to migration management may have, especially if they do not improve their ailing asylum systems in parallel. This is crucial globally as the number of migrants and refugees are at record levels and, due to the pandemic and resulting economic crises, are likely to continue increasing in the coming years. 

3.    Words Matter: Avoid Contemptuous Language When Speaking About Migration

South Africa’s experience demonstrates how public perceptions of migration and official discourses and policies intertwine. Pejorative terms like “alien” and the colloquial “makwerekwere” within the South African context have permeated public perceptions and further fuel xenophobic sentiments. Terms have an impact on the perception of migration, the policies that regulate it, and ultimately on the experiences of migrants themselves.

Policymakers in Europe too should refrain from using pejorative terms as well as images that draw an alarmist view on migration. These include references to floods, waves, or mass migration to speak about arrivals from the African continent. More neutral terms include “mobile people,” “people on the move,” or “arrivals.”

4.    Support Regional and Continental Integration in ­Africa

Just like European integration was decades in the making, and remains at times contested, regional integration in Africa is not a given. Within SADC, South Africa tends to prefer bilateral and small-scale migration agreements, thus diminishing SADC’s efforts to regulate migration regionally. Yet, however limiting and cumbersome for migrants, these arrangements have provided some level of free movement and labor circulation that would not be guaranteed otherwise.

European policymakers have rightly invested in reinforcing the capacity of regional economic communities to boost free movement across the continent – particularly in regions closer to home such as in Western Africa. They should not, however, underestimate the weight of other regional migration hubs on the continent. If leading economies like South Africa may be more reluctant to shed protectionist policies, even slow progress on their part regarding regional mobility would send a strong signal and potentially inspire positive change in other parts of Africa – perhaps more so than European-funded projects.

European policymakers should therefore continue to support regional integration efforts, but they should adjust their approach. The European integration project can do little to appease the security and economic fears of Southern African policymakers. Europeans should not ignore these concerns – which are widely shared across the continent – but actively address them. Concretely, they should aid attempts to harmonize entry requirements, to exchange good practices on border management and return, and to create circular labor migration schemes that may help prevent irregular migration – for instance, through the Migration Dialogue for Southern Africa (MIDSA), the SADC, and the SADC-EU Dialogue. Europeans could also consider additional support for data collection capacity to increase policymakers’ awareness on migration and foster evidence-based policies. Investing in regional free movement in Southern Africa is paramount to achieve the promise of a barrier-free continent, as foreseen by the African Union’s African Continental Free Trade Area (AfCFTA) and the Protocol on Free Movement. This ambitious goal also squarely aligns with the EU’s interest in circular migration within Africa and simply cannot be completed without regional migration playmakers like South Africa.

EU policymakers should thus look beyond the obvious migration partners it has been pursuing in Northern and Western Africa. They should start structured migration conversations with countries that might be more removed geographically, but whose power as migration magnets stretch a long way, as they are able to shape mobility across the African continent and beyond. South Africa may not be Europe’s closest African neighbor, but it can – and should – become an important migration partner on the continent.