Parts of Refugees Act found unconstitutional by High Court
The act was challenged by organisations who said it had allowed for refugees to be arrested as they arrive to apply for asylum.
The court found the regulations prevented newcomer asylum seekers from accessing the asylum system.
Sections of the Refugees Act have been deemed inconsistent with the Constitution – by the Western Cape High Court.
The court ruled in favour of an application brought by the Scalabrini Centre of Cape Town and Lawyers for Human Rights (LHR), which challenged the 2020 amendments to the Refugees Act and regulations. The organisations say the amendments resulted in refugees being arrested as they arrive to apply for asylum.
The organisations argued that the Department of Home Affairs has used the provisions to prohibit newcomer asylum seekers from accessing the asylum system in South Africa and that they undermine human rights and refugee law.
Scalabrini's Head of Advocacy and Legal Advisor James Chapman said the matter will still need to be confirmed by the Constitutional Court, and there is no interim relief offered by the High Court.
However, he said the outcome was positive in that it would bring South Africa in line with international laws around asylum rights.
'It's a splendid outcome to have the full bench of the High Court rule in our favour and find that the provisions in question are unconstitutional and prevent access to the system,' he said.
READ | 'Fear of equality' is not persecution worthy of refugee status, experts and lawyers say
'What is going to be interesting to see is how Home Affairs responds to the judgment. The next step will be to see asylum seekers approach refugee centres and see how Home Affairs applies the provisions.'
In her judgment, Justice Judith Cloete found that under the amendments, new grounds for exclusion from refugee status are placed in the hands of a refugee status determination officer.
An asylum seeker does not qualify for refugee status if such an officer 'has reason to believe' the asylum seeker has committed an offence in relation to travel or sojourn documents, cannot provide 'compelling reasons' for illegal border crossing, or cannot provide 'compelling reasons' for failure to report to a refugee reception office within five days of entry.
According to Scalabrini, since November 2023, new asylum applicants have been subject to arrest, detention, and deportation without the opportunity to undergo a refugee status determination interview.
The arrests stem from preliminary interviews conducted by immigration officials, who assess whether applicants have good cause for failing to enter the country through a designated port of entry and obtain an asylum transit visa at the border.
Most applicants are found to lack good cause, resulting in their arrest for deportation, they said.
This process effectively denies people access to the asylum system, the two organisations argued, and violates the principle of non-refoulement.
ALSO READ | High Court declares sections of Refugees Act unconstitutional
Non-refoulement, a cornerstone of refugee protection, ensures that people are not sent back to a country where they face a real risk of persecution, torture, or serious harm.
Nabeelah Mia, the head of LHR's Penal Reform and Detention Monitoring Programme, in a previous statement said: 'Our obligations under international refugee law are very clear – newcomer asylum seekers cannot be penalised for the way they entered and remained in South Africa, until their claims are finalised.'
Mia continued:
When newcomer asylum seekers come to South Africa seeking refuge, the primary question in assessing their claims is whether they are at risk of persecution and harm if they are returned to their country of origin.
'By not allowing newcomer asylum seekers to access the asylum system, we risk sending people back to situations where they will be harmed, tortured, or even killed.'
Judge Cloete said the matter dealt with the issue of amendments that had created a 'process which may scupper [an asylum seeker's] application in the sole discretion of a bureaucratic official (whether it be an immigration officer or refugee status determination officer)'.
READ MORE | It would be a 'challenge' for South Africans to qualify as refugees in US, says lawyer
Cloete stressed that 'any person who meets the requirements for refugee status is a refugee even before they are formally recognised as such'.
Last year, Scalabrini was awarded an interdict that temporarily halted the initiation of any process to deport a foreign national who has indicated an intent to apply for asylum, until their application has been finalised.
The order, handed down by acting Judge Brendan Manca in September, was done in agreement with the minister and director-general of Home Affairs, the chief director of asylum seeker management, and the refugee appeals authority.
Foreign nationals are required to report to a refugee reception office and indicate their intent to apply for asylum within five days of entering South Africa.
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