There are different ways in which international migrants can gain protection and/or rights. First is the protection that exists for refugees under the terms of the 1951 Geneva Convention. Under the Convention, a refugee is defined as someone who, ‘owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality …’. Being a refugee means being unable to seek protection in your country of nationality because of a fear of persecution and so refugee status brings with it the protection of the international community. One of the ways in which potential refugees access protection is by seeking asylum, at which point the receiving state considers the individual’s case to be a refugee.
There also exists an extensive human rights framework that should, in principle, protect people regardless of their immigration status and their motive or motives for migration. Universality underlies these treaty regimes and included in this are children’s rights and women’s rights as well as political, civil, economic, social and cultural rights, all enforceable through actions against the state. Finally, there are nation state rights which are stratified by an individual’s citizenship and immigration status within the country of residence
(Morris, 2002). Under the stratified system of rights, naturalized citizens and refugees have extensive rights and are at one end of the continuum. At the other end of the continuum are undocumented migrants and rejected asylum seekers who exist on the margins of society with few or no rights, often exploited economically and unable to gain protection from the police or courts in the country where they live.
New concepts of citizenship based less on being a citizen of a nation state and more on the universal notions of personhood have emerged in order to reflect global migration and the complex transnational lives of migrants
(Jacobson, 1996; Soysal, 1994). The idea of international citizens, transnational citizens and post-national citizens, in theory, brings notions of citizenship into the international human rights arena (Basok et al., 2006). However, as this article shows, new concepts of citizenship do not enable equal access to rights and so in practice they do nothing to safeguard undocumented migrants from exploitation and vulnerability. Somers notes that undocumented migrants, ‘… have no real right to have rights … They are in effect indentured servants – at once rightless and exploited’ (2008: 22).
The empirical data presented in this article reveal a segmented labour market and exploitation, with undocumented migrants not benefiting from international protection, human rights, nation state citizenship rights or rights associated with the more recent concepts of post-national and transnational citizenship.
Zimbabwean undocumented migrants are shown to be marginalized and vulnerable with limited transnational capabilities, which in turn limits remittance activities and therefore negatively impacts on families in Zimbabwe who are dependent on the remittances of those living in South Africa, as well as elsewhere in the diaspora.
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The Research Context: Migration from
Zimbabwe to South Africa
Zimbabweans who have migrated have left a country with a collapsed economy, lack of jobs, hyper-inflation, human rights violations and persecution of members of the political opposition. McGregor notes that the consequence has been that
‘families of all social classes have increasingly been compelled to send members abroad to ensure basic survival, escape brutal attacks or meet aspirations for accumulation and education’ (2007: 806). South Africa has a long history of cross-border migration from surrounding countries and is the main migrant-receiving country in the region. Migration to South Africa is often a household ‘poverty reduction strategy’ (Black et al., 2006: 116) and therefore forms part of a survival strategy for some households who depend on the remittances sent by those who have migrated.
Migration to South Africa is characterized by both highly regulated contract employment in the mining industry and informal, unregulated and undocumented migration (Crush, 2003). Current government policy is very focused on undocumented migrants or ‘border jumpers’ and efforts are made to fence and wire off the borders. Though impossible to quantify the numbers crossing the border, Human Rights Watch (HRW) documented an increasing number of deportations from South Africa to Zimbabwe that rose from 17,000 in 2001 to nearly 97,000 in 2005 (HRW, 2007).
Migrants in South Africa can experience xenophobia and violence regardless of their immigration status, with some arguing that this is a consequence of the isolation caused by apartheid (Crush et al., 2008). The summer of 2008 saw especially violent racist and xenophobic attacks aimed mainly at people from
Malawi, Mozambique, Nigeria, Pakistan, Somalia, and Zimbabwe, as well as
South Africans from minority language groups. In total, the violence led to
62 deaths and between 80,000 and 200,000 displaced persons (Igglesden et al.,
2009). Violence extends from civil society through to the police, with undocumented migrants subjected to extortion and victimization by the police (Klaaren and Ramji, 2001; Landau et al., 2005). However, police brutality and deportations will not prevent South Africa being attractive as a migration destination because of its long porous borders and economic dominance in the region.
Zimbabwe shares a land border with South Africa and migration from
Zimbabwe has been described by the media as a ‘revolving door syndrome’ where migrants are deported and then return (Waller, 2006). Migrants cross illegally into South Africa to meet the demand for cheap and seasonal noncontractual labour that undocumented migrants can offer in certain sectors of the economy, especially on farms in Northern Limpopo, so there is a demand and a supply that deportations are not quelling. The Global Commission for
International Migration (GCIM) noted in its final report that sectors, including agriculture ‘… have come to rely to a significant extent on migrants with irregular status, who are prepared to work in difficult, dangerous and dirty jobs with little security and low wages’ (GCIM, 2005: 36).
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Globalization, global inequality, development projects, displacement, conflicts, oppression, and technological advances in transportation, media and communications will ensure that migration will continue to be a feature of the 21st century.
Decisions to migrate can be individual or part of a household livelihood survival strategy, resulting in transnational obligations in the form of monetary and other remittances to kinship groups in the country of origin and elsewhere.
While decisions to migrate may be complex, structural barriers including immigration controls will impact not only on decision-making but also on whether migrants enter a country clandestinely or use a regularized route. As we have seen, undocumented migration is one characteristic of migration from Zimbabwe to South Africa. The next section considers the ways in which these migrants fall outside of the international and national protection and rights frameworks and the ways in which both internal state policies and individual decisions might prohibit access to some forms of protection as well as access to rights.
Refugee Protection, Forced Migration and Human Rights
In some receiving countries, including South Africa, access to the asylum process can be problematic. First, misunderstandings by officials about the asylum system and assumptions about Zimbabweans as ‘economic migrants’ may well compromise the opportunities that Zimbabweans have to seek asylum (Vigneswaran,
2007). Second, as Landau et al. (2005) note, there have been occasions in South
Africa when the Department for Home Affairs has refused to accept any asylum claim made by a Zimbabwean. Third, the prohibitive costs of seeking asylum – including reaching the Refugee Reception Office to make a claim, translation costs and fees to file claims though they are meant to be free – mean that some who might try to seek asylum end up dropping out of the system and staying in
South Africa as undocumented migrants instead (Consortium for Refugees and
Migrants in South Africa, 2007; Landau, 2005).
Not everyone wants to seek asylum because their focus is on the urgency to earn money for remittances and to be able to cross back to Zimbabwe to bring money and other items to family members. Refugees and asylum seekers cannot legally travel to their country of origin. In addition, not all refugees who might have a case for refugee status realize that they have a case to be made.
Research with refugee women demonstrates the ways in which women might not recognize that their activities (which can sometimes be less politically visible than that of their male counterparts, and include providing safe houses, warning signals and information) or their experiences of gender-based persecution, including rape as a weapon of war, may in fact make them refugees under the 1951 Convention (Bloch et al., 2000). Women asylum seekers do not benefit equally from refugee protection because of the interpretation of the Convention, the emphasis on proof of persecution and the procedural and evidential barriers that affect women’s access to the asylum process (Crawley, 2001; Tuitt, 1996).
Moreover, women are much less likely to be principal asylum applicants than