5.2.2 Accessing refugee status in South Africa
Stateless persons may concurrently be refugees. Indeed, the 1951
Convention relating to the Status of Refugees and South Africa's
Refugees Act, No. 130 of 1998 recognise this. Both legal
instruments provide refugee status to people who are outside their
country of nationality or, if stateless, outside their country of
habitual residence, who have a fear of persecution on the basis of
race, religion, nationality or membership of a particular social
group or political opinion.
Under the 1951 Refugee Convention, a stateless refugee should
receive protection as a refugee, since the arbitrary denial of
citizenship due to one’s race, religion, nationality, membership of a
particular social group or political opinion can indicate persecution.
Refugee status provides more benefits than stateless status
generally and thus should be the first port of call, particularly in
South Africa where there is no parallel scheme requiring the
protection of stateless persons.
Given that a stateless person may also be a refugee, you must
ensure that confidentiality requirements for refugees who might
also be stateless are upheld in statelessness determination. Every
applicant in a statelessness determination procedure is to be
informed at the outset of the need to raise refugee-related
concerns, should they exist.130 The identity of a refugee or an
asylum-seeker must not be disclosed to the authorities of the
individual’s country of origin.
Where refugee status and statelessness determinations are
conducted in separate procedures and a determination of
statelessness can be made without contacting the authorities of the
country of origin or without disclosing the client's identity, both
procedures may proceed simultaneously. However, to maximize
efficiency, where findings of fact from one procedure can be used
in the other, it may be appropriate to first conduct interviews and
to gather and assess country information for the refugee
determination procedure.
It is possible, even, that your client’s statelessness is at the very
heart of his or her claim to refugee status. This overlap can occur
where a person has been denationalised for discriminatory reasons
which fall under the listed grounds of the Refugee’s Act.
A refugee is defined in the Refugees Act as follows:
A person qualifies for refugee status ... if owing to a well founded fear of
being persecuted by reason of his or her race, tribe, religion, nationality,
political opinion or membership of a particular social group; is outside
the country of his or her nationality and is unwilling or unable to avail
130 UNHCR Procedure Guidelines (n 7 above) para 26 - 30.
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Promoting citizenship and preventing statelessness in South Africa: A practitioner’s guide
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