Noah is working on the rights of refugees. They can, he tells me, also be termed asylum seekers. Why? I ask him, but he is non-committal. Suspiciously so, I think. I surmise that the boy is seeking refuge from me. If so, committal to an asylum would be a fit and proper outcome, since anyone who leaves me must assuredly be mad.
I tell him as much. I expect a little billing and cooing in reply. Nothing too grand, but in the spirit of “I am here for keeps, my honey bunch” or “Wild horses wouldn’t tear me away, my sugar plum.”
No such luck. All I get by way of reply is: “Concentrate! Not everything is about you, you know.”
Since I know this full well, I regard the statement as intellectually superfluous and gratuitously insulting – especially coming from a person who is a legally certified egomaniac.
I have no opportunity to express these lofty sentiments. Noah has the floor and declines to yield it.
“Daar is kak in die land,” he says. Ever the English pedant, he prefers to be crude, vulgar or profane in a foreign language. It leaves his Anglophilia unsullied.
“Why?” I ask politely. Perhaps coldly, too: only time can cure the pain of a tart remark.
“Refugees who claim asylum have an absolute right to enter our country but must within five days present themselves at a statutory Refugee Centre and justify the claim.”
“How do they do that?”
In my mind’s eye I see a couple, several children in tow, struggling to explain to an unsympathetic official why the place they left – Somalia – is “a shithole”. (That it deserves such an epithet is undeniable. It was Trumpeted abroad.)
The picture is a sad one. I take comfort from a story I once heard and liked. On a tour through Wales, an obnoxious Englishman stops for lunch at the solitary inn of a tiny rural village. Looking around him, he declares that truly he has arrived at the arse end of the world. “Arrh,” says Mine Host, “and yer just passing through, are yer?”
I tear myself away from my reveries and do what I was instructed to do. I concentrate.
“The system proved unworkable,” Noah is saying. “You can see why, can’t you? Refugees saw no reason to present themselves for official vetting and possible repatriation, particularly when their countries of origin were, as a matter of fact, not especially inhospitable.
“So lax”
“Of course, they were now forced to operate without papers, but this was scarcely a problem in a country in which law enforcement is so lax. If they were unlucky enough to be apprehended, they could then still apply for permission to remain here.”
“Would they get it?” I ask.
“Typically, yes. That they had failed to follow the proper procedure could count against them, but in practice the factor proved to be a makeweight.”
“I see. This explains why we suddenly had so many Zimbos, Malawians and – heaven preserve us – Nigerians knocking about.”
“Well, yes, I suppose so. This certainly seemed to be the view of our rulers. They tightened up the law in 2017 to make repatriation axiomatic if the detained refugee could not pertinently account for the failure to follow proper process – that is, attend for processing.”
“Fair enough,” I think, and say as much.
“You may think so, but the Constitutional Court thought otherwise. In a unanimous judgment handed down earlier this year, it decided that automatic repatriation for the mere failure to observe proper process was a drastic breach of the fundamental rights of a refugee under international law, not least the covenants to which South Africa had subscribed.”
“Automatic? Why do you say automatic? Aren’t the officials expected to decide whether the refugee could justify the default?” You will see that I am really concentrating now.
“To be sure, the court did consider the issue. It felt the provision, if a safeguard and not a penalty, was too weak to protect the refugee. The statute failed to say who should make the decision, how it should be made, and what factors should determine the outcome. This made the enactment arbitrary and irrational.”
“Well, the Legislature will have to remedy the problem by amendment, I suppose.”
“There’s the rub”
“Ah, but there’s the rub. Once the legislation makes the requirements explicit, every decision will be subject to challenge for a failure to comply. More than mere technical objections will be raised: claims that the decision is bad for unreasonableness or irrationality will also be mounted.”
“So what?”
“So, a lot. You know, almost as well as I, that cases take an age to come before court. In the interim, the refugee will most likely continue to reside here, and the whole process will be stymied.” Noah is in full flight now.
“Does all this really matter?”
“Yes, of course it does. No local wants foreigners competing for our scarce facilities. Unless the issue of immigration is sensibly handled, vigilante groups will band together and drive the migrants out by force. The problem is not academic: violent protests are becoming commonplace.”
I can’t argue with this. “What would you do, then?” I ask.
“The problem is not easily solved. Were I the lawgiver, I suppose I might create a high-level system by which countries would continuously be evaluated, and only people from those designated as perilous would be eligible for asylum. But this is really a matter for experts.”
“You don’t count yourself as one?”
“Certainly not. But I do want my just deserts.”
“You shall get them, dear heart, but only if you apologise!” The customary “for whats” follow before we both … “exit left, pursued by a bear.”
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