As we celebrate International Human Rights Day, it is important to reflect on whether South Africa promotes a culture of human rights, particularly for the LGBTQI+ community.  

Sharing information with refugee status determination officers about private, sensitive and often traumatic experiences is part of the refugee status determination process. This may be especially true for those seeking asylum on the basis of their sexual orientation, gender identity and expression, and/or sex characteristics (SOGIESC). An applicant seeking asylum on the basis of their SOGIESC must show that they face persecution because of their actual or perceived orientation or identity, which is inherently personal.

South Africa’s interim Constitution in 1993 and final Constitution in 1996 were the world’s first to include an explicit prohibition on discrimination based on sexual orientation. The Constitution is the supreme law of the country, and all SA’s laws must be aligned with it. Accordingly, the Refugees Act allows refugees with SOGIESC-based asylum claims to lodge an application for asylum under section 3(a) of the act, which mirrors article 1 of the Convention Relating to the Status of Refugees, to which South Africa is a party. 

People with diverse SOGIESC may face persecution based on their membership in the LGBTQI+ community as a social group and/or political opinion, under laws and policies criminalising homosexuality in their country of origin. This may be their reason for fleeing their country of origin and seeking protection elsewhere by lodging an application for asylum. 

Several guidelines and standards have been enacted at national and international levels to protect the rights of people seeking asylum based on their sexual orientations and/or gender identities, including the Yogyakarta Principles. Furthermore, the United Nations High Commissioner for Refugees released Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity.

In the asylum system, decision-makers are responsible for upholding procedural rules while equitably considering asylum claims in consideration of human dignity, self-determination, and the right to privacy. We remain concerned that the South African asylum system places people with SOGIESC-based claims at risk of further traumatisation and marginalisation.  

Fine principles versus lived realities in South Africa

Despite the progressive international guidelines and SA’s Constitution, the lived realities of asylum seekers with SOGIESC-based claims reflect the complete opposite. 

The quality and standard of decision-making at all levels regarding SOGIESC-based claims are inexcusable. Lawyers for Human Rights (LHR) is significantly concerned about decision-makers making decisions influenced by their personal opinions, ignorance, and lack of understanding of the law. 

In the case of one of LHR’s clients, the reason for rejecting their asylum claim was that “[P]eople are never born gay but develop this behaviour as they start to grow. Naturally, people are born either as female or male under normal circumstances.”  

In LHR’s Refugee and Migrant Rights Clinics, the majority of asylum seekers with SOGIESC-based claims have suffered severe harm at the hands of the South African government. This includes specific difficulties from transit zones to the end of their asylum process, such as harassment, violence and discrimination. 

Many of these clients attempt to conceal their gender identity or sexual orientation in order to avoid abuse, discrimination or violence. According to our clients, refugee status determination officers frequently request that they “prove” their identity or orientation. This directly violates their constitutionally protected rights to human dignity and privacy. 

LHR’s clients have reported mistreatment, discrimination, humiliation, unlawful arrest and detention by law enforcement agents, including immigration officers and police. 

LHR has noted a trend of asylum seekers with SOGIESC-based claims abandoning their asylum applications and electing to voluntarily return to their country of origin for reasons including the nature of the South African asylum system, xenophobic rhetoric and attacks on foreign nationals in the country. This remains one of our biggest concerns and we work tirelessly to reform the South African asylum system to make it safe and sustainable, allowing all refugees effective access to and enjoyment of their rights throughout this process. 

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We are further greatly dismayed and horrified by accounts of humiliation and lack of respect for the human rights of asylum seekers with SOGIESC-based claims at refugee reception offices. 

At the core of our Constitution is the right to equality, which prohibits unfair discrimination. We call upon all decision-makers to ensure that the rights to privacy, human dignity and equality are upheld with sensitivity when dealing with asylum seekers.  

During this month, we highlighted these injustices for the attention of persons in authoritative positions to implement processes and procedures that are fair and not harmful to people with SOGIESC-based claims. In 2021, LHR published Paper Promises, a report looking at the South African forced migration framework and its impact on women. In this report, LHR made several recommendations to the Department of Home Affairs (DHA) which have not been considered or implemented. 

This report recommended that DHA should audit refugee status determination officers’ decisions based on SOGIESC to identify problematic decisions and decision-makers and inform the content of future training programmes, and develop interviews to address poor quality decision-making and discrimination. 

In addition, improved and ongoing sensitivity training programmes should be developed and implemented for all decision-makers at specialist organisations. The recommendations of this report are a significant stepping stone to adopting a human rights-based approach in adjudicating SOGIESC-based asylum claims and we urge the DHA to engage with it. DM/MC

Thato Gaffane is a candidate attorney at Lawyers for Human Rights and can be reached at thato@lhr.org.za