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Kronos

On-line version ISSN 2309-9585
Print version ISSN 0259-0190

Kronos vol.40 n.1 Cape Town Nov. 2014

 

ARTICLES

 

Making migrants 'il-legible': The policies and practices of documentation in post-apartheid South Africa

 

 

Roni AmitI; Norma KrigerII

IAfrican Centre for Migration & Society, University of the Witwatersrand
IIFederal Research Division, Library of Congress, Washington, DC

 

 


ABSTRACT

In South Africa, the Department of Home Affairs (DHA) - the department charged with managing migration - has struggled to control growing migration flows, particularly the increased demand on the asylum system. The DHA has both relied on and sought to undermine documentation attempts as part of its migration management efforts. These shifting practices reveal an official ambivalence toward granting foreign migrants documents and the rights that accompany them. Ensuring that foreign migrants remain undocumented fulfils the DHA's objective of facilitating their removal, but it undercuts the administration's ability to know who is in the country, another expressed DHA goal. Examining two documentation schemes - the asylum system, and the three-month documentation programme targeting undocumented Zimbabweans - this article highlights these conflicting purposes. It explores the DHA's administrative strategies and practices to withhold or deny documentation, and hence legal rights, to foreign migrants even when its stated goal is documentation. Looking at the role that documentation plays in state administration, the article argues that the street-level organisational approach and its focus on implementation best captures the actions of the DHA, underscoring the ways in which street-level bureaucrats can influence documentation policy and practice by determining who gets access to documents.


 

 

South Africa's post-apartheid immigration regime confers a range of legal rights on documented migrants. But the shifting practices of the Department of Home Affairs (DHA) - the bureaucracy charged with managing migration - indicate an official reluctance to bestow these rights through documentation. Instead, the DHA has increased the barriers or denied documentation to many foreign migrants. Ensuring that these migrants remain undocumented fulfils the DHA objective of facilitating their removal, but it also undercuts the administration's ability to know who is in the country, another expressed DHA goal. This article highlights these conflicting purposes, identifying many of the DHA's administrative strategies and practices to withhold or deny documentation, and hence legal rights, to foreign migrants even when its stated goal is documentation. These practices also underscore the ways in which street-level bureaucrats can influence documentation policy and practice by determining who gets access to documentation.

The DHA has struggled to control increasing levels of migration since 1994. Significant numbers of migrants find their way into the country's asylum system, which gives them an opportunity to regulate their status at least temporarily. This situation has given rise to a somewhat equivocal approach towards documentation. While the DHA has introduced measures to document greater numbers of migrants, it has simultaneously undermined these measures in the belief that most lower-skilled migrants are not in the country legitimately, particularly those entering the asylum system. The DHA has actively worked to limit documentation, employing a variety of administrative procedures to make it exceedingly difficult for migrants to obtain documentation or to acquire refugee status. Even the Zimbabwe Documentation Project (ZDP), the scheme targeting undocumented Zimbabweans, was accompanied by significant administrative barriers.

The DHA's contradictory policy goals and actions on both the documentation of asylum seekers and the ZDP are emblematic of its approach toward migration more generally. For skilled migrants, Stephen Ellis and Aurelia Segatti find that, while the government has recognised the severe shortage of skilled labour and has expressed concern at the scale of the African 'brain drain', the DHA continues to impose severe limits on the number of work permits issued for foreign skilled migrants and to not process permit applications in a timely fashion.1 Ellis and Segatti conclude that 'despite official rhetoric, government circles hold broadly negative views regarding the role of migration in skills development in South Africa.'2 That is, the government prefers not to use foreign skilled migrants to fill the labour shortage in the country.

 

The Evolution of Migration and Its Management

During apartheid, immigration was limited almost exclusively to white migrants, with the exception of migrant labourers from neighbouring African countries.3 Jonathan Crush and Raesibe Mojapelo describe the country's 'carefully managed migration policy' during this period, which was 'designed to utilize cheap labour from outside the country and dump it back over the borders when it was no longer wanted.'4 Accordingly, the Aliens Control Act of 1991 applied largely to white migrants, while black migrants arrived in the country through bilateral labour agreements.5 There was no refugee policy during this time, although thousands of Mozambicans who fled the civil war were allowed to live without formal legal status in the 'homeland' areas. In contrast to this carefully managed migration system during apartheid, early post-apartheid immigration policy (1994 to 1998) was described as 'confused, incoherent, reactive, defensive, and lacking in vision.'6 We emphasise the DHA's contradictory and conflicting goals in its management of the asylum system and the ZDP, thus demonstrating continuity in key characteristics in migration policy between the early and more recent post-apartheid years.

Following the transition to democracy, the government entered into a 1997 Memorandum of Understanding between the South African Development Community (SADC) and the United Nations High Commissioner for Refugees (UNHCR) that reflected a more open approach to migrants and refugees. The government then began drafting laws in line with its new rights-based constitution, including the 1998 Refugees Act and the 2002 Immigration Act. The Refugees Act was largely based on the humanitarian principles of the international refugee convention, while also recognising the large-scale instabilities giving rise to flight in the African region. The Immigration Act replaced the far more restrictive Aliens Control Act but offered few options for economic migrants in the African region.

Democratisation transformed the country from a refugee-producing to a refugee-receiving country. The new laws guaranteed all individuals the right to apply for asylum and to reside legally in the country while their claims worked their way through the system. Under this relatively permissive scheme, many economic migrants began turning to asylum as a legal way to reside and work in the country temporarily because of the lack of alternative regularisation options, further increasing the ranks of asylum seekers. Table 1 shows the increase in asylum numbers, which peaked in 2009.7

 

 

Although in line with the country's constitutional ideals, the country's asylum and immigration laws stand apart from public sentiment. As migration to South Africa has grown, foreigners have increasingly been blamed for the country's socioeconomic ills, including high crime and unemployment rates. Much of this animosity has specifically targeted lower-skilled African migrants, seen to be competing with locals for employment and public services. In this context, increasingly restrictive migration and documentation policies play well with the population.

Government sentiment has shifted accordingly since the early days of democra-tisation. A 2012 ANC policy document attributed many of the current immigration challenges to the country's unconditional adoption of regional and international instruments, which had failed to take into account the migration realities confronting the state and to recognise migration as a strategic security issue during the democratic transition.8 Noting that 95 per cent of asylum seekers are in fact economic migrants threatening the country's wellbeing, the document proposed a 'risk-based approach' that involved detaining 'high risk' asylum seekers9 and establishing a monitoring system. It also advocated refusing asylum to those individuals who had transited other countries en route to South Africa.

The increasingly restrictive migration policy has existed alongside efforts to manage migration by expanding documentation. In 2008, the DHA began taking steps to make the asylum system more efficient, including the implementation of same day adjudication to move people through the system more quickly. To further ease demand on the system, the department introduced a temporary permitting scheme for Zimbabweans in 2010. The effectiveness of both the asylum and Zimbabwean documentation efforts, however, were compromised by the department's view that most lower-skilled migrants were not in the country legitimately. The conflicting goals around these documentation schemes are explored below.

 

Perspectives on Documentation

Existing theoretical approaches on the role of documentation as a tool of the state have shed some light on the South African example, though they cannot fully account for the processes at work. James Scott, for example, characterises documentation as an index of a modern state and the product of the capacity of the administration to measure or obtain with some accuracy the objects of its interest.10 Some historians have presented an alternative view, drawing attention to how state administrations may deliberately not document social groups because they do not wish to empower those groups vis-a-vis the administrative state.11 We briefly discuss these perspectives on the function that documentation plays in state administration, indicating their strengths and limitations for understanding the South African case. We suggest that the street-level organisational approach to public policy and politics might better capture the actions of the South African bureaucracy that administers foreign migration.

James Scott presents documentation as a mechanism for imposing order on a society. He illustrates how, in modern Europe, state classification systems (and the related use of documentation, common units of measurement, and statistics) were built on growing state administrative capacity to obtain knowledge of society.12 The knowledge acquired by state administrations was schematic, but enabled states to enhance their capacity and achieve their objectives through control and manipulation. What the state left out in the process of social simplification 'was not so much unknown as ignored lest it needlessly complicate a straightforward administrative formula.'13 The state administration's deliberate simplification of society frequently had the power to transform social reality to coincide with the state's objectives.14 State objectives might be positive (to provide social welfare and so on) or negative (to deport minorities, for instance).15

Scott's description of the simplification of society is relevant. In terms of South African refugee and immigration laws, the DHA bureaucracy is responsible for classifying and documenting foreign migrants as either asylum seekers (or other categories of legal migrants) or as illegal foreigners. Asylum status entitles migrants to remain in the country, to work, and to access some social services (health, education and so forth) while awaiting their refugee status determination. Illegal foreigner status leads to detention and deportation. In an effort to manage the high numbers of asylum seekers, DHA bureaucrats have classified most foreign migrants who seek asylum as economic migrants and thus not entitled to asylum,16 which renders them illegal and subject to deportation. In order to simplify reality, the bureaucracy has ignored mixed migration motives that may give rise to asylum claims and labelled all those individuals with mixed motives as economic migrants.17 As described above, this transforms social reality to serve a key DHA objective: to limit the numbers of documented migrants in the country. However, the DHA has also introduced occasional schemes explicitly designed to document foreign migrants in the country, in part to know their numbers. The DHA's decision to deny documentation to the vast majority of foreign migrants through the asylum system, while at the same time introducing schemes to document foreign migrants, suggests an ambivalent approach toward documentation and knowledge on the one hand, and the benefits that accompany it on the other. Scott's simplified classification schemes fail to capture such ambiguity in what bureaucracies may seek to know and choose to ignore.

For Scott, the modern state's administrative capacity and effectiveness are inextricably connected and premised on 'reliable means of enumerating and locating its population'.18 In South Africa, the DHA lacks reliable numbers on foreign migrants -in part because of its documentation practices - and the effectiveness of the deportation policy growing out of these documentation practices is, at best, ambiguous. But Scott's link between administrative knowledge, capacity, and state effectiveness does not consider that administrative strategies and practices may undermine state effectiveness. DHA administrative strategies and practices that have delayed or denied the documentation of foreign migrants have had significant effects on the state's efforts to know and control migrants.

Emphasising the idea that states choose not to know, the historians Breckenridge and Szreter criticise the implicit claim of the universality of the will to know in the literature on the benefits of state documentation to state administration.19 They claim this literature, including Scott's Seeing Like a State, and specifically Foucault's work emphasising how knowledge and power are mutually constituted, 'has encouraged many scholars to overstate the bureaucratic enthusiasm for information gathering and it has discouraged research into the limits of bureaucratic knowledge'.20 Many of the chapters in their volume illustrate a more deliberate limiting of documentation efforts, showing that states have 'frequently sought to restrict, abandon or devolve registration, without any direct effect on their authority and power'.21

Indeed, documentation would empower citizens and, in our case, eligible non-citizens as the law intends, enabling them to remain legally in the country and to access other legal benefits. However, Breckenridge and Szreter's portrayal of bureaucracies that choose ignorance in some circumstances does not capture a bureaucracy that seeks both to know and not to know. In our case, the DHA has expressed ambiguity towards documentation because the efforts to acquire state knowledge of the foreign population confer benefits on this population. Accordingly, it is not possible to assess whether there is a link, as Breckenridge and Szreter suggest, between the bureaucracy's deliberate will not to know, on the one hand, and its authority and power, on the other.

Scott and Breckenridge and Szreter share a common focus on bureaucratic intentions - whether a will to know (Scott) or a choice to not know (Breckenridge and Szreter). These authors also link bureaucratic intent relating to knowledge (or lack thereof) and capacity to obtain the knowledge with state effectiveness (Scott) and state power and authority (Breckenridge and Szreter).

In sharp contrast to the focus on both the will to know or not to know and on state administrative capacity or lack thereof to explain bureaucratic objectives, processes, and outcomes, the street-level organisational approach emphasises how administrative practices, including those relating to documentation, both shape politics and create policy.22 The street-level organisational approach builds on the theoretical literature on implementation and street-level bureaucracies, extending the latter's analysis of policy implementation in public bureaucracies to non-public institutions delivering public services. The shared essence of both approaches is their recognition that administrative practices may determine who gets access to organisational benefits and who is excluded from access to benefits for which they are eligible. These practices are often hidden from public view, and thus tend to be less transparent than legislative processes that are conducted in the open. Evelyn Brodkin captures the core elements of street-level approaches as follows:

... organizations do more than "apply the law." They also engage in informal and discretionary practices that effectively "make the law," essentially constituting an "extralegal" mode of determining "who gets what and how". Thus, organizational practices are central to understanding access to benefits and, its antithesis, exclusion.23

Importantly, the street-level approaches do not assume that administrative exclusion - the denial of benefits to those who are eligible - is necessarily the product of intentions, although they do leave open that possibility.24 Instead, they highlight how administrative exclusion often occurs as a result of the practices, intentional or not, employed by those