We are legal ghosts, Somali family’s bitter struggle to get refugee status in SA

Source: Daily Maverick, 13/09/2023

The Department of Home Affairs is now giving appointments for refugees to apply for asylum only in 2025, even though they are required to present themselves at a Refugee Reception Office within five days of their arrival in the country.
The legal team for a Somali family that has been harassed by law enforcement, refused medical assistance and given a date to apply for asylum 18 months down the line, has called on the United Nations High Commissioner for Refugees to intervene and support their court case against the Department of Home Affairs.
“We are legal ghosts,” Abdullahi Osman Shale said in an affidavit explaining the suffering inflicted on his family by the Department of Home Affairs.
The department is now giving appointments for refugees to apply for asylum only in 2025 �` even though they are required to present themselves at a Refugee Reception Office within five days of their arrival in the country.
Osman said his wife, Fatuma Salah, and his brother, Absame Ahmed Osman Shale, had suffered abuse since arriving in South Africa.
The family came to South Africa after fleeing violent clashes in their hometown in wartorn Somalia.
Attorney Siseko Jali, who acted for the family, said he had more than 1,000 clients who are all desperate for an asylum application date.
“We are just going around in circles,” he said.
“As soon as we get one appointment system implemented by Home Affairs declared as unconstitutional they implement one that was previously interdicted by the court. We really need the United Nations High Commissioner for Refugees to step in here and help,” Jali said.
Refugees left vulnerable
The legal team for the family, led by advocate Lilla Crouse SC, obtained an agreement from Home Affairs that the family, who arrived in Gqeberha in December 2022, would be given an opportunity to apply for asylum on Friday, 21 July. However, this was refused and they have been allowed to stay in SA until their appeal is heard.
Osman said they were not only bringing the court case in their own interest, but also on behalf of many other asylum seekers who are “sitting in the same untenable circumstances as ourselves and who are unable or unaware of their right to approach [the court].
“These similarly situated persons are vulnerable as they more often than not lack means, support systems, family, friends or acquaintances in South Africa.”
He said many of his fellow refugees had a very “limited understanding of the Republic’s legal system. As a result of a lack of resources, they would rarely have access to competent lawyers and know which non-governmental organisations would be willing to assist them.
“This makes them more vulnerable and they are often propositioned for bribes, robbing them of what may be left with or what they brought with them.”
Osman said that being unable to submit an application for asylum made it impossible for him to find a job, access health services or open a bank account as he did not have any of the required documentation.
“We, like nearly all asylum seekers, are poor and desperately need to earn an income to sustain ourselves.”
He said they were not seeking an order that they must be given asylum, but merely that they be given an opportunity to submit their applications and be issued with papers that will legalise their stay while they wait for the outcome of their applications.
The Refugee Act states that an application for asylum must be made within five days after arrival in South Africa. But in practice, Osman said they cannot go to the Refugee Reception Office but “are forced to wait for more than a year-and-a-half” just for the opportunity to present themselves and ask for asylum.
“Access to a fair and efficient refugee status determination procedure is an essential safeguard to protect refugees and asylum seekers from abuse in South Africa. State parties to the Refugee Convention are required to provide access to such a procedure. I am advised that South Africa is a state party to the Refugee Convention and therefore has an obligation to provide a fair and efficient refugee status determination procedure,” he said.
Osman said the Department of Home Affairs, “through their inordinate delays in providing us access to the South African refugee system, have in fact violated several of our rights enshrined and protected in the Bill of Rights in the Constitution of the Republic”.
At the time of their application, asylum seekers who could access the Refugee Reception Office in Gqeberha were given appointments for April 2025.
“The current system for asylum seekers in Gqeberha, and possibly elsewhere in the Republic, is unable to cope with the number of persons applying and is thus fatally flawed and consequently unlawful.
“Vulnerable asylum seekers, like us, must now wait for an unreasonable period before their applications for asylum seeker permits are considered. In the meantime, asylum seekers have nowhere else to go as they cannot return to their country of origin and are forced to remain in the Republic unlawfully and illegally,” he said.
In the second part of his court application, to be heard at a later date, Osman is seeking an order to have the system dealing with asylum seekers declared unlawful and unconstitutional.
In this part of the application, the court will also be asked to order the department to compile a report on the current state of the asylum seeker system for scrutiny by a judge and to devise a lawful and constitutional system.
Salvaging a life from the ashes
Osman was born in Somalia on 1 January 1990. He came to South Africa in 2022 to apply for asylum and he, his wife and his brother arrived in the country on 24 October 2022.
“Throughout the years, millions of Somalian civilians have been internally displaced, and millions have fled the civil war and have sought refuge in safer countries.
“For many years, my family moved from one place to another within Somalia to find safety. Safety in Somalia is illusory because in every city the armed groups routinely carry out indiscriminate and targeted bombings of civilians. We could nowhere find lasting safety.
“During 2022, our last place of temporary residence was bombed during a fight that broke out in Mogadishu between al-Shabaab and Somali government forces. All our belongings and supplies were burnt to ashes.
“In the aftermath of the bombings and whilst we were trying to salvage from the ashes anything that may assist us in our survival, the al-Shabaab rebel soldiers returned to the community and began to forcibly take all male survivors and forced them to join the armed group. While this was happening, we went into hiding.
“There was no longer any place in Somalia that could provide us with safety as the civil war was beginning to intensify again. Due to this fear, we made arrangements and fled to South Africa to seek refugee status,” he said.
Osman added that when they arrived in South Africa, they received help from members of the Somali Association to trace his uncle who had fled to South Africa 15 years previously.
“He invited us to Gqeberha where we would live with him,” he said.
“When we arrived in the Republic, our uncle advised that we needed to apply for refugee status at the Gqeberha Refugee Reception Office. However, when we reported to the said office, we were advised that asylum seekers who wish to lodge their asylum applications for the first time are required to send an email and request an appointment to apply for asylum.”
They asked a lawyer to help, but the first appointment they could get was 18 months away, in 2024.
“These appointments are a year-and-a-half in the future. This means 18 months in which we are undocumented and deemed to be illegal in South Africa, at a time when Somalia is every day in the news for yet further violent fighting. It seems that the political situation is getting worse. We cannot go back and we are illegally here.
“Our situation has worsened because [my wife] is now six months pregnant and requires constant medical attention as a result of her pregnancy. Our family support system is unable to financially support us as well as to take care of the prenatal medical needs of [my wife] for the next year-and-a-half wherein we are unable to access even the most basic of constitutionally guaranteed rights.”
He said they were afraid of being arrested because they were deemed to be illegally in the country. They were denied access to public hospitals and were unable to find work or open bank accounts.
When their legal team asked why the appointments were so far in the future, the department responded that the Gqeberha Refugee Reception Office would remain under pressure until the Cape Town office was reopened.
“We have been legal ghosts in the Republic from the date that we came in and we will remain as such for the next 18 months,” Osman said. “We have to live a life on the run.”
He said they live in fear of the police, who often asked for bribes in return for not arresting them.
They were also refused access to state hospitals and Osman had to borrow money to seek care in the private sector for his pregnant wife.
The Department of Home Affairs has not yet filed papers responding to Osman’s legal action, but agreed to provide him with an immediate hearing for asylum.
The court has asked for the department to provide an affidavit by 31 August with an exact description of the current system to provide permits for asylum seekers, including details on when asylum seekers are given appointments and how many are waiting.
Jali said they would see what information was provided by the Department of Home Affairs and then plan on how to proceed with the court case