The global refugee regime does not and cannot adequately address the needs of millions of survival migrants fleeing collapsed states such as Zimbabwe. As well as being a regional crisis, the situation of millions of Zimbabwean migrants in Southern Africa highlights the need to reform the international institutional framework for the protection of vulnerable undocumented migrants fleeing the consequences of economic and social catastrophe.
The existing institutional framework governing the rights of people who cross borders implicitly assumes that there are two groups of people who cross borders in an undocumented manner: refugees and voluntary, economic migrants. The former group benefits from a collective commitment by states to guarantee admission to their territory and to provide substitute protection in lieu of the country of origin. The latter group has few guarantees because their movement is assumed to be entirely voluntary. In practice, however, this legal and normative distinction is based on a false dichotomy that fails to recognise the diversity of reasons why people may be forced to cross borders in an irregular manner.
The legal category of the ‘refugee’ was created at a very particular juncture of history to address the plight of Holocaust victims in Europe. It was defined narrowly to relate to people fleeing individual and discriminatory persecution by their own governments. However, in practice the category does not and never has captured the totality of circumstances under which people are forced to cross an international border as a result of an existential threat faced at home. It is but one aspect of a broader phenomenon that may be described as ‘survival migration’.
Survival migration – or people leaving their country of origin because of an existential threat to which they have no domestic remedy – occurs for reasons other than individualised persecution. For example, people may be forced to cross an international border to flee state collapse, generalised violence, severe environmental distress, or widespread livelihood collapse. Sources of survival migration are likely to proliferate in the context of climate change and the transmission of the global economic meltdown, for example. Yet the only one of these additional sources of survival migration with any degree of recognition as a basis for substitute protection is generalised violence, which is a basis for claiming refugee status under the 1969 OAU Refugee Convention.
I have just returned from a research trip to Southern Africa to look at the situation of one particular group of survival migrants: Zimbabweans who have fled their collapsed country and crossed the border to neighbouring states; particularly to South Africa. Although the numbers are disputed, there are estimated to be around 3-4 million Zimbabweans in South Africa. Only a tiny proportion of these are recognised as refugees; the recognition rate for asylum claimants is less than 10% and the only basis for a claim tends to be political activism and membership of the MDC. There are also a significant number of highly-skilled Zimbabweans with labour permits. However, the overwhelming majority of Zimbabweans in South Africa are undocumented migrants often is possession of an asylum-seekers’ permit but without the basis of a claim to refugee status. Discussions with those who have recently crossed the border highlights that most migrants are not fleeing individual persecution. However, they are nevertheless fleeing a collapsed state, which offers increasingly few livelihood opportunities. We met engineers and teachers, for example, who were unable to earn US dollars and so could not purchase basic subsistence. Many were leaving dependent families decimated by HIV/AIDS, in the hope of remitting a source of viable currency.
The main crossing point in South Africa is Beit Bridge, where smugglers enable people to cross the Limpopo or to pass through holes in the barbed wire fence. The journey is treacherous and almost all of the people we spoke to had been robbed and many others assaulted or raped at the border. Once in South Africa, undocumented migrants face a system ill-adapted to address their needs. At the nearby town of Musina, the South African Department of Home Affairs (DHA) has established a refugee reception centre to issue temporary asylum-seeker permits to those who cross the border. These permits allow Zimbaweans to be legally present on the territory and to work until such time as they undergo a refugee status determination procedure.
Until early 2009, the ‘showgrounds’ at Musina had become a quasi-permanent settlement where Zimbabweans stayed before and after acquiring asylum-seeker permits. Now, though, the showgrounds have been cleared by the Municipality and the Zimbabweans that were there have been moved on, mainly to Johannesburg. Musina currently only has temporary transit shelters, provided by local churches, which enable people to remain for up to 72 hours while they get their temporary permits from the DHA office and receive access to onwards transportation to urban areas such as Johannesburg or Pretoria, where they are expected to fend for themselves.
What we discovered below the surface was national and international institutional failure with shocking human consequences. We visited a transit shelter at Musina run by a local church for male Zimbabwean migrants. The shelter was around 50m x 50m, had 4 portable toilets, a single drinking water tank, and a tent canopy without sides or a ground mat, which one of the Zimbabwean volunteers informed us sometimes hosts up to 1000 people at a time. Every day, the South African Red Cross (SARC) provides only a single evening meal, delivering enough maize meal for around 3 pots of ‘pap’. That evening, though, the Red Cross did not show up and the men went hungry.
In Musina the contribution of the Government of South Africa to the welfare of the Zimbabweans is a broadly negative one. The police routinely round-up, arrest and detain Zimbabweans without permits and send them to Musina’s deportation centre. They frequently round-up and detain unaccompanied minors (UAMs), putting them in the same detention facilities as adults. On the day we were there, we were refused entry to the deportation centre, as was UNHCR and the NGO Lawyers for Human Rights, which were seeking access to a group of heavily pregnant women detained that day. We also heard horrific and credible allegations of police torture at the facility.
People arrive desperate and destitute, in need of protection, and this is the greeting that they receive in Musina. Only the emergence of an ad hoc coalition of IOs and NGOs has partly mitigated the most serious protection gaps. Churches have provided the temporary shelters, MSF provides basic medical support, the SARC is providing one meal a day, Save the Children UK is supporting UAMs, UNHCR is monitoring the deportation centre, overseeing DHA’s distribution of asylum permits, and providing train tickets to enable migrants to get to Jo’burg, Pretoria or Polokwane, IOM is providing advice and training to government officials on the protection of migrants by drawing upon its budget lines in other areas, UNICEF has recently arrived to support the work of Save the Children UK on UAMs, the Musina Legal Advice Centre is offering practical and procedural advice to migrants, and Lawyers for Human Rights (LHR) is engaged in monitoring and advocacy. The limited humanitarian response that has emerged from the work of this group of actors is a remarkable testimony to the commitment of individuals on the ground. However, it has emerged in spite of and not because of a clear and coherent response by either the South African Government or the international community.
Most of those who have been in Musina have been moved to Jo’burg, where they largely fend for themselves in over-crowded, crime-ridden areas such as Hillbrow and Windsor. The most visible manifestation of the Zimabwean migrants is the 3400 that are currently staying inside and outside the Central Methodist Church in downtown Jo’burg. This church, led by Bishop Paul Verryn, has offered sanctuary to the Zimbabweans. MSF provides medical support and registers UAMs but UNHCR and DHA only entered the building for the first time in the last fortnight and this was simply to conduct a registration exercise. Volunteers and church leaders have forged a remarkable community, with daily services, classes and activities, despite police and government harassment. However, in the church 102 unaccompanied minors – some as young as 7 – sleep on the floor of a room the size of my own one bedroom apartment; pregnant women and young mothers with children sleep in unsanitary and overcrowded church corridors. A small upstairs room with a few foam mattresses cares for those with cholera, TB and AIDS.
What we witnessed is the thin edge of a government and international organisational system ill-adapted to address the most basic needs – and indeed human rights – of survival migrants. The Government response has hitherto been to insist that Zimbabweans obtain an asylum-seekers’ permit either in Musina or at one of the other five refugee reception centres in the country and then to leave them to fend for themselves. However, putting this group of survival migrants into the asylum system has stretched it to breaking point. When we visited J’burg Refugee Reception Centre we found a centre unable to cope with registering so many people. It could only register around 700 of the 2000 or so people a day coming to its doors and so the only way for people to get access to the site was to bribe the guards. Those unable to bribe their way into the building were likely to be rounded-up and deported by police.
The majority of survival migrants are not refugees. But this is not to say that they do not have rights. International human rights law sets out a range of civil, political, economic, and social rights to which irregular migrants are entitled. Furthermore, in the case of survival migrants, there is a similar imperative for substitute protection to that which exists for refugees. Yet, as the situation of Zimbabweans in South Africa reveals, many survival migrants are denied their rights because of the absence of a clear institutional response capable of ensuring these needs are met.
Slowly, the South African Government has begun to acknowledge the need for a more coherent way to address the situation of Zimabwean survival migrants. On 3 April, the Deputy Home Affairs Minister announced the intention to cease deporting Zimbabweans and to provide a permit that allows all Zimbabweans to stay, work and receive access to basic services for an initial period of up to 6 months. If implemented, this proposal will essentially create a new legal category of ‘economic refugees’ outside of the asylum system.
However, even if South Africa manages to improve its response, the situation highlights the inadequacy of the international institutional framework to protect non-refugee survival migrants. The Zimbabweans are not alone in Africa in this regard. Many Congolese in Angola, for example, are survival migrants for which the international protection framework is ill-adapted. States need guidance and international support to ensure that they meet the human rights imperatives created by survival migration. It is crucial that actors such as UNHCR, IFRC and IOM negotiate a clear and coherent division of responsibility for ensuring the protection of vulnerable irregular migrants who are not refugees but nevertheless require international protection. UN High Commissioner for Refugees, Antonio Guterres, has acknowledged the need to protect broader categories of ‘People on the Move’ and now is the time for action. A clearly enunciated ‘soft law’ framework drawing upon international human rights law and a coherent institutional division of labour is needed to address the situation of survival migrants. The world does not resemble the Europe of 1951 and neither should its protection framework.
[...] who nevertheless flee an existential threat to which they have no domestic recourse.” In his blog, Betts writes that sources of survival migration are likely to proliferate in the context of [...]