Beginning Work

The next day Jan picked me up and dropped me off at work.  He had told me that he would drive me the first few days until I begin to find my way around.  (I made sure to tell Jan that I am engaged and spent a bit of time talking about my wedding plans, just in case, you know!) 

My first day at work was very interesting.  Sherylle went through some legal training with me and explained what the clinic does and more specifically the type of work I’ll be doing.  Here is some basic information:

Lawyers for Human Rights is an independent human rights organization that provides free legal services to marginalized individuals and groups within South Africa.   The Refugee and Migrant Rights Program (RMRP) “is a specialist programme that advocates, strengthens and enforces the rights of asylum seekers, refugees and other marginalised categories of migrants in South Africa.”  The Durban law clinic provides free legal advice and representation to refugees and asylum seekers in the Province of KwaZulu Natal.  LHR is also a legal implementing partner of the United Nations High Commissioner for Refugees (UNHCR) and as such is responsible for implementing some of its programs, such as voluntary repatriation and resettlement. 

I will be responsible for daily consultation with clients at the law clinic.  Client intakes take place from Monday to Thursday between the hours of 8:30am to 1:00pm.  Clients are accepted on a walk-in basis.  If a client requires on-going assistance, appointments may be scheduled outside those hours.  I will also be required to identify possible strategic litigation cases and assist with drafting pleadings in contemplation of such litigation.  During the intake process I will be expected to identify clients who are in need of protection and require UNHCR intervention.

Sherylle warned me that it is very easy to get emotionally involved with the clients’ stories.  Often their experiences and backgrounds are extremely tragic and I should be prepared for that.  In fact, she told me that clients can be quite manipulative when it comes to your emotions. Previous interns had had a lot of difficulty with this, especially in cases of unaccompanied minors.  That morning I got my first taste. I sat in on a client interview, where the applicant’s sister was raped and killed by rebels in a small village in the DRC.  The applicant subsequently fled the DRC and came to South Africa with her children looking for a better life.  Although she had gone through this horrible experience, she did not fit within the strict definition of a refugee as prescribed by the Refugee Act.  As such, Lawyers for Human Rights could not take on her case and represent her throughout her appeal.

I should take a bit of time to explain the process.  Presently South Africa is the largest single recipient country of asylum seekers in the world. Most migrants are arriving from Zimbabwe, Malawi, Ethiopia, the DRC, Burundi, Somalia, and some from Bangladesh, India and Pakistan.  When an asylum seeker arrives in South Africa they are issued a transit permit which gives them 14 days to lodge an application for asylum at a Refugee Reception Office.  The application includes the required forms, finger prints, biometrics and recent photos.  At this stage the asylum seeker receives a section 22 permit (or an asylum seeker permit), which allows the applicant to work and study, while awaiting a Status Determination Hearing.  180 days after the interview the asylum seeker receives the outcome – which is either a grant of refugee status or a rejection.  A refugee enjoys full legal protection and is entitled to apply for an immigration permit after five years’ continuous residence in South Africa.  A rejection, on the other hand, gives an asylum seeker the right to appeal, should he or she wish to do so.  If a refugee does not appeal the RSD decision, he or she must leave the country or will be deported. 

There are a number of issues with this system.  One being that South Africa began receiving such a high number of asylum seekers that it simply did not have the necessary resources to process all applications within a reasonable time.  Thus the government was required to give asylum seekers the right to work and study while awaiting the outcome of their case.  As the system was significantly backlogged, some people were stuck in this bureaucratic limbo for years (sometimes as many as 10), before they were finally rejected.  Although by this point South Africa had become their home, these people were required to leave the country.  This flaw also became a huge pull factor for migrants, who were aware that they did not have a legitimate refugee claim, but saw the asylum process as a much easier way to live and work in South Africa than the Immigration process.  The Act is presently being amended, with the new changes likely to come in effect at the end of March of next year (which coincides with the end of my internship).

For those of you who are legally inclined and should wish to know, the Refugee Act defines a refugee in the following way:

(a)    Owing to a well-founded fear of being persecuted by reason of his or her race, tribe, religion, nationality, political opinion or membership of a particular social group, is outside the country of his or her nationality and is unable or unwilling to avail himself or herself of the protection of that country, or, not having a nationality and being outside the country of his or her former habitual residence is unable or, owing to such fear, unwilling to return to it; or

(b)    Owing to external aggression, occupation, foreign domination or events seriously disturbing or disrupting public order in either a part or the whole of his or her country of origin or nationality, is compelled to leave his or her place of habitual residence in order to seek refuge elsewhere: or

(c)    Is a dependant of a person contemplated in paragraph (a) or (b).

All this being said, LHR represents clients, who have already been initially rejected and are now seeking to lodge an appeal.  LHR only takes on the cases that have a reasonable probability of success.  The problem is that although many applicants have extremely sad stories, they do not fit within this very strict definition.  In the case of the Congolese woman escaping violence, she is not being persecuted because of her race, tribe, religion, nationality, political opinion or membership in a particular social group.  In addition, the area in the DRC where she is from is not considered to be experiencing external aggression, occupation, foreign domination or events seriously disturbing or disrupting public order.  The act of violence the Congolese woman experienced would be seen as an isolated event that does not amount to the level of seriousness required by the definition. 

As Sherylle delivered our decision not to represent her and calmly explained the legal reasoning behind it, and the translator gently translated this to the applicant, you could already see tears filling her eyes.  My emotions had already been manipulated.  I definitely have a lot to learn!