Reflecting on Refugees and Asylum-Seekers Tertiary Education in South Africa: Tension Between Refugee Protection and Education Transformation Policies
Dip Jour (CMC ), LLB (UWC), LLM (UCT)
Abstract: As we celebrate the World Refugee Day at 62nd anniversary of the 1951 Refugee Convention relating to the Status of Refugee, there is 13 years when South Africa has committed itself to providing international protection and assistance to refugees and asylum-seekers and to promote durable solutions for their problems. This article is a reflection on how is the refugee and asylum-seekers protection is provided in terms of tertiary education, and reference to the UN Refugee Convention, Refugee Act and South African Constitution. This article will illustrate political attitudes of the government of South Africa towards refugees and asylum-seekers that influences adoption of national policies, which do not promote favourable access to tertiary education. The current political attitude is concerned with closing the borders and to reduce the number of refugees and asylum-seekers within South Africa. It regards the provision of socioeconomic assistance as an incentive of making South Africa a refugee-immigration destination and this should be discouraged.
Key words: Tertiary Education, protection, Human Rights, Social Justice, Transformation, Refugees, Asylum-seekers.
When South Africa became a democratic country in 1994, it started receiving an influx of refugees and asylum-seekers. The post-apartheid government warmly welcomed refugees and asylum-seekers and extended hospitality to asylum-seekers who were coming from war-torn countries and countries characterised by oppression, suppression, and ethnic and political problems.1 South Africa opened the borders to asylum-seekers who were and are seeking a safe haven because it has, due to its historical oppression, “had to increasingly bear the mantle of champions of the oppressed” and it has “necessarily had to implement international solidarity and burden-sharing.”2 However, this understanding has been compromised by South African national policies and strategies aimed to redress the past inequality in accessing tertiary education and to socially and economically advance the majority of South Africans who suffered from the brunt of the apartheid regime. These policies and strategies ensure racial representivity and equal access to education. In addition to national policies, South Africans’ anti-foreigner or xenophobic attitudes challenge the Government of South Africa to defend refugees’, asylum-seekers, and economic migrants’ rights to access South Africa resources.3
This article seeks to illustrate that tertiary education is not accessible to many refugees and asylum-seekers irrespective of mandate drawn from international obligations to assist them in improving their conditions.4Many literatures argue that education is crucial in refugees’ lives as it empowers them or expands their capabilities to improve their social and economic status.5 They argue that educated refugees and asylum-seekers will not be a burden to the state because they can, in acquiring new knowledge and skills and higher qualifications, advance employment opportunities and/or engaging in income generating activities. In other words, education and training increasingly enable them to become self-reliant. However, in South Africa, there is no policy that was adopted by South Africa to promote refugee and asylum-seekers tertiary education. Refugees and asylum-seekers are, de facto, excluded from benefiting from South Africa National Student Financial Aid Scheme, a policy that was developed and designed to ensure historically disadvantaged and marginalised access to tertiary education.6 Refugees and asylum-seekers are left out in the cold on the contention that they should not be entitled to constitutional socio-economic assistance because they are not permanent residents and have a tenuous link with South Africa.7 It was, in Khoza v Minister of Social Development, held that social security will constitute an incentive for immigration to South Africa.8
As regards access to tertiary education, they are treated as if they are international students who are required by immigration policy to be self reliant and economically independent.9 South African social justice policies focus primarily on advancing the historically disadvantaged and such focus has an implication of excluding refugees from benefiting from socio-economic scheme.
This article looks at the post-apartheid policies adopted to ensure education transformation. It exemplifies how the arguments of various politicians that refugees and asylum-seekers are in South Africa only to use up national resources defeats the mandate of government of South Africa to protect refugees and asylum-seekers. This has led to private and public service provider to view refugees and asylum-seekers as illegitimate non-citizens who are not entitled to socioeconomic services.
Post-Apartheid Tertiary Education Policies
Shortly after the 1994 liberation of South Africa from apartheid system, the African National Congress (ANC) introduced the Reconstruction Development Programme (RDP) that sought to mobilize all South African citizens and country resources towards “the final eradication of apartheid.”10 The RDP implicitly recognised that apartheid policies had left deep scars of socio-economic inequalities. It thus committed the government of South Africa to develop and design policies tailored to eradicate segregation in education, health, welfare, transport and employment.11 All socioeconomic policies are all anchored in the RDP. In this context, the 1997 Education White Paper was drafted to transform the education system, by introducing tertiary student financial assistance, known as “National Student Financial Aid Scheme (NSFAS)” for the South African citizens who are disadvantaged and academically deserving.12
The same year, the legislation regulating higher education was enacted with aim and purpose to redress the past discrimination and to ensure representivity and equal access to tertiary education.13 To ensure equal tertiary accessibility, the NSFAS was adopted to ensure that South African students who come from humble families are financially assisted.14 The 1997 Education White Paper refers to the NSFAS as a “valid form of supplementary support.”15 Refugees and asylum-seekers are excluded from this form of supplementary support on the basis of citizenship. Only poor citizens are entitled to this financial assistance in the view of alleviating inherited social inequality.
Notwithstanding this, the 1951 Convention relating to the Status of Refugees requires contracting states to accord to refugees a favourable access to tertiary education.16 The UN Refugee Convention recognises the political, social and economic problems of contracting parties and, nevertheless, requires them to always accord to refugees the same or favourable treatment with respect to socio-economic assistance as is accorded to their nationals.”17 Where a refugee hosting country is not capable of according to them socio-economic assistance, this will be done in terms of burden sharing, solidarity or international cooperation principle.18 The refugee problem is not restricted to a host country; rather it is a responsibility that must be shared among the nations.19
The refugee regime which was adopted in 1998, but which came into effect in 2000 allows refugees to undertake education.20 The same right was conferred upon asylum-seekers in 2003.21 The South African Constitution allows everyone to undertake both elementary and tertiary education.22 The right to education is also enshrined in the South Africa Constitution as a component of socio-economic rights. Socio-economic rights impose positive obligation on the government of South Africa to take steps to the maximum of its available resources, with a view to achieving progressively the full realisation of those rights. The same obligation is imposed by the International Covenant on Economic, Social and Cultural Rights. Both the South African Constitution and international human rights instruments do not restrict socio-economic rights to citizens only.23 Refugee and asylum-seekers should accordingly be assisted to further their studies. Now, the question is: What are the motives that make South Africa to exclude refugees and asylum-seekers from the mechanism that make tertiary education favourably accessible to them?
Political Exclusion of Refugees and Asylum-Seekers
Although South Africa is praised to have progressive Constitution as well as refugee regime, the political attitude of the government agents does not allow the implementation of refugee regime. It has been so difficult for refugees and asylum-seekers to turn their basic rights into entitlements. The right to education is just enjoyed by refugees and asylum-seekers, who are capable to do so at their own expenses. Poor and vulnerable refugees and asylum-seekers’ education dream cannot be turned into reality. The government of South Africa is reluctant to distribute its resources to refugees and asylum-seekers as the most influential government agents are against such distribution of national resources. The UNHCR is not substantially intervening, too. While in the Western Cape Province alone, there are more than 500 tertiary refugee students, UNHCR financially assist less than 100 refugee students countrywide through DAFI programme.24
After the dawn of democracy, South Africa has had to draw its attention to the growing number and the plight of refugees in Africa and wanted to play its full role to assist UNHCR in refugee situation.25 This position was influenced by the fact that various prominent leaders of the ANC, who ascended to power, were former refugees. They include former President Thabo Mbeki, former Chairperson of ANC Oliver Tambo, and many others. South Africa became a signatory to the Refugee Convention of 1951 and its 1967 Protocol and the African Refugee Convention of 1969 in 1995 and 1996 respectively. In addition to this, it became a member of the Executive Committee of the UNHCR. By ratifying those conventions, South Africa assumed mandate to protect refugees and asylum-seekers whereas UNHCR assumed international protection monitoring functions.26
Irrespective of being committed in the UNHCR activities and human rights promotion in general, the first post-apartheid Minister of the Department of Home Affairs (DHA) declared that the spirit, object and purport of the RDP will not be realised if non-citizens who are pouring into South Africa would be allowed access to the national resources.27 Again, this political attitude was, in 2011, reflected in the statement of the chairperson of the DHA Portfolio Committee, Ms Maggie Maunye, in which she stated that ‘foreign-nationals coming to South Africa are using up national resources and prevent citizens from enjoying their freedoms’28 Even though she apologized, this statement reaffirms the spirit of government. At the 60thcommemoration of the World Refugee Day, the Deputy Minister of the DHA, Ms Fatima Chohan provided some of the reasons why refugees and asylum-seekers are excluded from social and economic schemes. These reasons include (i) the fact that South Africa has become the largest recipient of individual asylum-seekers in the world; (ii) asylum being lacking in many respects, and (iii) the huge influx of applications from individuals intent on abusing the asylum management system.29 This is a rationale behind disadvantaging genuine refugees and asylum-seekers from accessing national resources and/or not being afforded effective protection that South Africa committed itself to achieve.30
The South Africa position of 1990s to afford refugees and asylum-seekers equality, human dignity, human rights, and freedoms has dramatically changed. Globalisation trend and national security are emerging factors that are behind the state attitude to discourage immigration by not implementing the refugee policy. These two factors are threats to asylum-seeking as well as effective refugee protection around the world. They have become a scapegoat of closing the border and deporting so called ‘illegal migrants’. In South Africa, it has, for example, transpired that refugees and asylum-seekers, who are lawfully staying in South Africa, are also victims of cracking down illegal foreigners.31 All these factors illustrate a political will to reduce refugees and asylum-seekers, instead of assisting them to improve their socio-economic status and to find a durable solution to their refugee situation. Educating refugees is one of the mechanisms to alleviate their misery and suffering and meaningfully contributing to durable solutions. However, South Africa seeks to reduce a number – a burden – of refugees at any cost. As the government of South Africa argues in the case of Khosa, it has simply insufficient sources to cater for all the various persons who are in South Africa seeking assistance.32 The international community is not substantially assisting in sharing burden.33 Without financial assistance many refugees drop out of the schools and many others cannot be able to pursue their tertiary studies. In South Africa, a lack of translating refugee policy into practice challenges the government of South Africa because most of the people it seeks to protect are not genuine. Around 2011, the DHA launched a project that seeks to review all recognised refugee cases to ascertain whether they had bona fide asylum claims. According to the DHA, this will ensure refugees and asylum-seekers better management and honouring international obligations.34
The challenge faced by the DHA to process, adjudicate, and manage asylum-seekers applications are not the only motive to exclude refugee and asylum-seekers from accessing national resources, including education and employment. Of course, the government fears that in assisting refugee, it will assist a high number of individuals who have abused the system. It is reasonable and justifiable. It is justified that the abuse of asylum system threatens national security and development. Having argued that, I turn now to reflecting on how national security measures affect refugees and asylum-seekers’ rights to education in the present South Africa.
National security and Social Welfare
In 13 years, the Refugee Act of 1998 has been amended three times. This piece of legislation has been amended to ensure protection of national interest. At the third time, refugee regime was revisited together with immigration regime in order to tighten the borders, asylum-seeking and labour market accessibility.35 Reflecting on the current treatment of refugees worldwide, this amendment were mainly influenced by the developed countries trend of closing the border to economic migrants and to closely scrutinise the claims made by refugees and asylum-seekers, who are viewed as a threat to national economic development and national security.36 The developed countries have moved from immigration control to immigration management. Immigration management is a new measure that many countries have adopted after “September 11 Attack” on Trade Centre. Lubbers observed that the issues of an asylum-seeking have henceforth been approached with prudence and led to close scrutiny of both refugee and immigration regulations.37 Refugees and asylum-seekers are the most victims of the growing climate of fear of terrorism and other transnational crimes and thus being treated with suspicion, and sometimes, arbitrary detained and, actually, deported.38 The states are changing their refugee-immigration related policies because of concern that the terrorists may gain entry to the territory through the channel of asylum system.39
Indeed, South Africa, as an economic power house in Africa, has also changed its refugee-immigration policy in order to guard against insecurity and instability, which may be generated by national resources competition. We have seen arise in service delivery and decent wage protests. They have recently swept South Africa. The South African working class also protests against employability of low skilled non-citizens. It is within these dimensions of social unrest in South Africa that the reluctance to finance refugee education should be analysed. The working class is the main voting constituency. The high number of refugees and asylum-seekers create a disproportionately high demand of social services in South Africa and yield undesired demand consequences such as: social fragmentation, unemployment, and the continued possibility of tension and conflict.
The ANC Policy Discussion Document of 2012 explains the motives behind curbing economic migrants, refugees and asylum-seekers. This document states that “immigration impacts strongly on [South African] security, economic, social and cultural development” and that it is necessary to defend South African state, its people and its independence.40 This suggests that national resources must be protected in the view of defending South African peoples’ interest. In this context, the movement of mostly poor, vulnerable and disadvantaged people is today regarded as a threat to both a sovereignty of the nation and its citizens. The citizens must be protected from the flow of this section of global society because it is feared that it might engage in criminal activities, take job and education opportunities, place a financial burden on the state in the view of social welfare and security, or pose a threat to public health and morals.
South African population, in particular black people, always reminds their leaders the need to protect their interest. South Africa has, since 1995, been characterised by sporadic attack in protestation against African foreign nationals presence, whom citizens believe that are benefiting from South African social welfare, education, business, and employment opportunities. This ill-sentiment is commonly shared among South Africans who believe that refugees and asylum-seekers are “gold diggers” who are taking educational, social, and employability opportunities reserved to citizens.41 This stereotype has a consequence of refugees and asylum-seekers being discriminated against in all sectors. In education field, Lanzi Mazzocchinni Survey of 2007/2008 indicated that 58% of the refugees and asylum-seekers students surveyed experienced discrimination from university staff.42 The discrimination and xenophobic attitudes serve as a barrier to the admission of refugees and asylum-seekers. This discrimination is exacerbated by transformation policies that give priority to citizen students who come from disadvantaged families. As a result, most of higher learning institutions do not consider vulnerable refugees and asylum-seekers in their student financial aid programmes.
Observance of human rights and entitlement as pertaining to refugees, asylum-seekers and economic migrants remain a challenge. Exclusion, xenophobic attitudes, resentments, and stereotypes are experienced at a daily basis, and in all sectors. This led to President Jacob Zuma, on the 2013 Human Rights Day, to call upon all South African “to condemn strongly any acts of xenophobia or any acts of resentment directed at foreign nationals.”43 Exclusion of refugees and asylum-seekers bars them from favourably accessing tertiary education. Favourable accessibility will be possible if the government of South Africa include refugees and asylum-seekers in the social transformation programme, such as NSFA, housing, healthcare, and social security. On the inequitable social transformation, President Zuma explained that “many sections of society and individuals become agitated when [the ANC government] refers to the apartheid legacy in [South Africa]” and that “this is a fact that the legacy cannot be reversed overnight.”44The reverse referred to herein this statement is a discrimination in reverse aimed to achieve a morally just society. This is a constitutional obligation and aspiration.
One of sections that are agitated by post-apartheid social transformation is refugee section. In the process of redressing the historical injustice, South Africa is, like other countries, concerned by the fact that refugees’ economic support will drain on public resources.45 Though vulnerable, but they are not disadvantaged by segregation policies. The requirement of being a victim of segregation apparently excludes them from being beneficiaries of socio-economic rights, entitlements, benefits, and privileges. What makes it worse is that South Africa is adopting the developed countries stance, most precisely European Union policies, towards treatment of refugees and asylum-seekers. Under European Union immigration management policies, both refugees and asylum-seekers are defined as “unwanted economic migrants.”46 They are no longer viewed as people who flee from persecution but as people who run from their national economic meltdown and poverty. From this understanding, the South Africa must also protect its resources from unwanted economic migrants (including refugees and asylum-seekers) who are in the country to use up its resources. Social assistance is viewed as an incentive to encourage an influx of refugees and immigration. This follows that refugee and asylum-seekers cannot financially be assisted. If assisted, they will drain resources on one hand, and they will, after acquiring skills, compete with South African citizens at a labour market on the other. This will fuel social unrest.
There is a tension between social and economic transformation system and observing international obligation to effectively protect refugees and asylum-seekers. Both refugees and historically South African disadvantaged are poor and vulnerable. The obligation to assist them is imposed by South African Constitution, UN Refugee Convention of 1951, African Refugee Convention of 1969 and International Covenant on Economic, Social and Cultural Rights of 1966. In this global economy era, South Africa, however, strives to develop and empower its own people in order to compete at national and international labour market. South Africa runs away from its international responsibilities contending that asylum system is inefficiencies and that there is a gap in immigration policy which allows economic migrants to secure refugees status. Due to a high number of refugees and asylum-seekers, South Africa claims that it has no sufficient resources to assist them and fear that the distribution of its resources to non-citizens will drain it and may create social tension between citizens and non-citizens.
This political understanding resulted in socio-economic rights denial. Most of social transformation programmes do not consider the plight of refugees and asylum-seekers and the government of South Africa do not sensitize refugees’ plight among private and public service providers. Some service providers discriminate against refugees and asylum-seekers in some social services they are entitled to simply because they view them as undeserving or illegal foreigners. Despite its progressive, the Refugee Act of 1998 has not effectively been implemented or adhered to. As a result, poor and vulnerable refugees and asylum-seekers are unable to favourably access tertiary education. The South African state is not employing its resources to improve their refugee and lamentable conditions.
In contrast, welcoming refugees in the country implies that the state has acknowledged the responsibility to protect. Instead, South Africa is seeking the manner in which refugees and asylum-seekers can be reduced within its borders. In so doing, national resources will be secured. Since 2011, South Africa has taken measures to close the borders and to review all refugee cases to determine bona fide refugees. Though the state argues that both asylum application review and 2011 amendments will make more efficient the application of asylum, it has been illustrated throughout this article that the government of South Africa no longer need to extend its hospitality to refugee and asylum-seekers. It cannot carry a refugee burden alone. It cannot make available funds to educate refugees and asylum-seekers or to improve their conditions. Due to global recession and European austerity, the international cooperation and solidarity in the form of financial and material support to lighten the burden on a hosting state has significantly diminished.47 With this in mind, South Africa does not provide human and social security; it provides rather physical security. Refugees and asylum-seekers are left to integrate themselves socially and economically in South African society. Similarly, they should do so in education. Education transformation is intended to ensure equal access and representivity of historically marginalised – black South Africans.
S Dryden-Peterson ‘Education of Refugee in Uganda: Relationship Between Setting and Access’ (2003)Refugee Law Project Working Paper No 9.
F Düvell & B Jordan ‘Immigration, Asylum and Welfare: The European Context’ (2002) 22 SAGE Publication (London, Thousands Oaks, CA and New Delhi).
LB Landau, K Ramajathan-Keogh & G Singh ‘Xenophobia in South Africa and Problems Related to It’(2005) Forced Migration Working Paper Series No 13, Forced Migration Studies Programme.
LB Landau ‘Protection and Dignity In Johannesburg: Shortcomings of South Africa’s Urban Refugee Policy’ (2006) 19 Journal of Refugee Studies 3.
EM Lanzi Mazzocchini‘Policy Implication Learned from the Analysis of the Integration of Refugees and Asylum-seekers at Tertiary Education in Cape Town’ 2007/2008 LLM ( Dublin).
R Lubbers‘After September 11: New Challenges to Refugee Protection’ (2003) US Committee for Refugees’ World Refugees, World Refugee Survey.
G Peterson ‘Education Changes the World: The World University Service of Canada’s Student Refugee Program’ (2011) 2 Refuge.
ANC (1994) ‘The Reconstruction and Development Programme’ Umunyano Publication: Johannesburg.
R Amit (2010) ‘Lost in the Vortex: Irregularities in the Detention and Deportation of Non-Nationals in South Africa – FMSP Research Report’ University of the Witwatersrand: Johannesburg.
Khoza v Minister of Social Development  6 SA 505 (CC).
Minister of Home Affairs v Watchenuka 2004 (4) SA 326 (SCA).
The Union of Refugee Women v The Director, The Private Security Industry Regulatory ServicesCCT39/06ZACC23.
Addis Ababa Document on Refugees and Forced Population Displacements in Africa of 8-10 September 1994.
Convention relating to Refugee Status of 1951.
Convention Governing the Specific Aspects of Refugee Problems in Africa of 10 September 1969.
Statute of the Office of the United Nations High Commissioner for Refugees of 14 December 1950.
National Legislations and Legal Documents
Constitution of the Republic of South Africa, 1996.
Higher Education Act 101 of 1997.
Immigration Act 13 of 2002.
National Student Financial Aid Scheme Act 56 of 1999.
Refugee Act 130 of 1998.
Address by President Jacob Zuma at the Commemoration of National Human Rights Day, Mbekweni, Paarl, Western Cape, 12 March 2012.
Address of the Deputy Minister of the Department of Home Affairs, Ms Fatima Chohan on the commemoration of World Refugee Day at the St Martins De Porres Catholic Church, Orlando West, Soweto, 19 June 2011.
ANC Policy Discussion Document on Peace and Stability, March 2012.
Education White Paper 3, A Programme for Transformation of Higher education, Notice 1196 of 1997, 24 July 1997.
1 The Union of Refugee Women v The Director, The Private Security Industry Regulatory ServicesCCT39/06ZACC23, para 140.
2 The Union of Refugee Women supra.
3 Landau, Ramajathan-Keogh & Singh (2005:6) and Landau (2006:309).
4 Article 20-24 of the Convention relating to Refugee Status of 1951 read in tandem with article 2(a)-(c) of the Statute of the Office of the United Nations High Commissioner for Refugees of 1950.
5 Dryden-Peterson (2003:3); Peterson (2011:112) and Lanzi Mazzocchini (2007/2008:39).
6 National Student Financial Aid Scheme Act 56 of 1999.
7 In the Khoza v Minister of Social Development  6 SA 505 (CC) at para 59, the Constitutional Court held that it is reasonable to exclude temporary residents from social assistance scheme.
8 Khoza supra at para 121, Dissenting Judgment delivered by Ncobo J.
9 Section 13(1)(b)(iii) of the Immigration Act 13 of 2002, as amended.
10 ANC (1994:1).
11 Ibid at 2-4.
12 Education White Paper 3, A Programme for Transformation of Higher education, Notice 1196 of 1997.
13 Preamble of the Higher Education Act 101 of 1997.
14 National Student Financial Aid Scheme Act 56 of 1999.
15 Education White Paper 3 (n12) at para 4.39.
16 Article 22 of the UN Refugee Convention (n2).
17 Ibid, Article 23.
18 Ibid, Preamble. See further article 4 of the Convention Governing the Specific Aspects of Refugee Problems in Africa of 1969.
19 Ibid, Preamble.
20 Section 27 (b) of the Refugee Act 130 of 1998, as amended do not explicitly confer upon refugees and asylum-seekers the right to education. This right is drawn from protection, which includes the rights set out in the Bill of Rights, except those rights apply to citizens. Right to education is not among constitutional rights restricted to citizens only.
21 Minister of Home Affairs v Watchenuka 2004 (4) SA 326 (SCA).
22 Sections 25(5), 26(2), 27(2) and 29(1) of the Constitution of the Republic of South Africa, 1996.
23 Article 2(1).
24 Lanzi Mazzocchini (2007/2008:190).
25 Address of the Deputy Minister of the Department of Home Affairs, Ms Fatima Chohan on the commemoration of World Refugee Day at the St Martins De Porres Catholic Church, Orlando West, Soweto, 19 June 2011.
26 Article 8(f) of the Statute of the UNHCR (n2).
27 Landau et al (2005:6).
CoRMSA welcomes the apology by Chairperson of the Portfolio Committee on Home Affairs on xenophobic comments, available at http://www.cormsa.org.za/2011/07/04/cormsa-welcomes-the-apology-by-chairperson-of-the-portfolio-committee-on-home-affairs-on-xenophobic-comments/, accessed November 2012.
29 Address of the Deputy Minister of the Department of Home Affairs (n25).
31 Amit (2010:25) indicates that 36% of detained surveyed al Lindera had valid documentation at the time of arrest.
32 Khoza supra (n7) at para 120.
33 Addis Ababa Document on Refugees and Forced Population Displacements in Africa of 1994 at para 14.
34 Address of the Deputy Minister of the Department of Home Affairs (n25).
35 In 2011, Refugee Act 130 of 1998 and Immigration Act 13 of 2002 were amended.
36 Lubbers ‘(2003:1).
40 ANC Policy Discussion Document on Peace and Stability, March 2012.
41 Lanzi Mazzocchini (2007/2008:146).
42 Ibid at 154.
43 Address by President Jacob Zuma at the Commemoration of National Human Rights Day, Mbekweni, Paarl, Western Cape, 12 March 2013.
45 Düvell & Jordan (2002:499).
46 Ibid at 500.
47 Addis Ababa Document (n33) at para 14.
This article was published on June 20th: World Refugee Day in Global Education Magazine.