Latest news with #RefugeesAct
Daily Maverick
21-05-2025
- Politics
- Daily Maverick
Home Affairs sent back to drawing board on Refugees Act after legal setback
The Department of Home Affairs has been forced to reconsider its approach to amending the Refugees Act after legal advisers rejected its proposed changes to controversial sections that had been ruled unconstitutional. The Department of Home Affairs (DHA) must go back to the drawing board to align the Refugees Act with the Constitution, following advice against its proposed approach to sections 22(12) and 22(13) of the legislation. This emerged during a meeting in Parliament of the Portfolio Committee on Home Affairs on Tuesday, at which Home Affairs Minister Dr Leon Schreiber and other DHA officials updated the committee on progress in amending sections of the legislation that courts had ruled were constitutionally deficient. In 2023, the Scalabrini Centre took the DHA to court over amendments made to the Refugees Act in 2020, specifically the introduction of sections 22(12) and 22(13). These sections provided for the 'automatic abandonment' of asylum applications if an asylum seeker or refugee failed to renew their permit within one month of its expiry. In practice, this meant that if an asylum seeker did not renew their visa, the DHA could presume they no longer wished to seek refugee status or apply for asylum, and could be subject to deportation or required to leave South Africa. Scalabrini brought the case before the Western Cape High Court, arguing that the provisions infringed constitutional rights, including the rights to life, dignity, and freedom and security of the person. The organisation cited the practical and systemic challenges that applicants face at the DHA when attempting to renew their permits. Earlier this month, the court declared the provisions invalid and unconstitutional. Following the judgment, the DHA consulted the Refugee Appeals Authority and the Standing Committee for Refugee Affairs. Both bodies supported the subsections declared constitutionally invalid, recommending their retention but proposing that the period for renewing an expired visa be extended from one month to 180 days, in line with the Promotion of Administrative Justice Act. However, the Office of the Chief State Law Adviser (OCSLA), which provides legal counsel to the executive and all government departments, declined to issue a preliminary certificate for the draft Bill. It said the DHA's approach to the judgment and its attempt to amend the legislation failed to address the fundamental reasons that sections 22(12) and 22(13) were declared invalid, which were: The provisions were arbitrary, as their introduction meant asylum seekers could be deported not solely on the merits of their claims but due to external circumstances. The provisions did not account for external factors that might prevent the renewal of asylum visas, such as the location of the nearest Refugee Reception Office (RRO), the length of queues at RROs, or the workload within these offices. The DHA has concluded that any amendments to the Act will need to be addressed through a supplementary white paper at a later stage. DHA pivots on legal challenge approach The DHA's next attempt at amending the Act is likely to comply with constitutional requirements, if Schreiber's address to the portfolio committee is any indication. Schreiber noted that Home Affairs was among the most litigated departments in government, if not the most, and that this was something the DHA aimed to change. He stated that the department no longer viewed litigation as something that must always be opposed at any cost, adding: 'We are looking at cases in a much more merit-based way, considering whether there are prospects of success and certainly not making decisions to oppose matters for the sake of it.' Discussing the department's approach to legal challenges, Schreiber said the DHA's decisions were always anchored in legal advice, constitutionality and the requirements of the law. 'We have a high mountain to climb in terms of re-establishing the rule of law in this space of Home Affairs — whether it is civics, immigration or the asylum management system — and we cannot do that unless we ourselves are leading by example,' said Schreiber. He emphasised that ensuring the DHA's operations and functions aligned with the Constitution was not merely about improving the department's image, but also about reducing costs. 'The contingent liability that comes from legal exposure, as well as the day-to-day cost of spending so much money on legal cases, is in and of itself, in the current budget environment, a very clear reason for us to focus on this area and make sure we reduce the burden of legal cases on this department,' he said. DM
IOL News
20-05-2025
- Politics
- IOL News
Relief for new asylum seekers
Following a ruling declaring several provisions of the Refugees Act Unconstitutional which denied asylum seekers access to the asylum system, causing them to face deportation back to the country from where they came, Home Affairs was urged to respect the ruling. Image: File picture NEWCOMER asylum seekers cannot be penalised for the way they entered and remained in South Africa until their claims are finalised, thanks to a Western Cape High Court judgment which declared several refugee protection provisions of the Refugees Act and its accompanying regulations invalid. The court recently delivered its outcome on the legality of processes that have denied new asylum seekers access to the asylum system since around November 2023, leading to the arrest, detention, and deportation of asylum seekers without a refugee status determination interview. The matter was brought to court by the Scalabrini Centre of Cape Town, represented by Lawyers for Human Rights (LHR). The Scalabrini Centre and LHR challenged the unlawful practice of arresting and detaining new asylum seekers based on preliminary interviews conducted by immigration officials regarding their entry into the country. They argued that this process effectively bypassed the established asylum application process, contravening the fundamental principle of non-refoulement, which prohibits the return of individuals to places where they face persecution or serious harm. This judgment, according to Nabeelah Mia, the head of LHR's Penal Reform and Detention Monitoring Programme, affirms South Africa's obligations under international refugee law. Video Player is loading. Play Video Play Unmute Current Time 0:00 / Duration -:- Loaded : 0% Stream Type LIVE Seek to live, currently behind live LIVE Remaining Time - 0:00 This is a modal window. Beginning of dialog window. Escape will cancel and close the window. 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Text Color White Black Red Green Blue Yellow Magenta Cyan Transparency Opaque Semi-Transparent Background Color Black White Red Green Blue Yellow Magenta Cyan Transparency Opaque Semi-Transparent Transparent Window Color Black White Red Green Blue Yellow Magenta Cyan Transparency Transparent Semi-Transparent Opaque Font Size 50% 75% 100% 125% 150% 175% 200% 300% 400% Text Edge Style None Raised Depressed Uniform Dropshadow Font Family Proportional Sans-Serif Monospace Sans-Serif Proportional Serif Monospace Serif Casual Script Small Caps Reset restore all settings to the default values Done Close Modal Dialog End of dialog window. Next Stay Close ✕ 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, she said. 'We urge the state to respect the right of asylum seekers to access the asylum system and not send people back to situations where they will be harmed, tortured, or even killed,' she said. The court was told that someone who flees war, violence, torture, or persecution should be able to apply for and receive asylum. Preventing them from doing so violates their fundamental right not to be returned to violence and persecution. It was argued that instead, new asylum applicants are arrested, detained, and face deportation. 'South Africa is legally required not to return someone to an environment in which their life, liberty, or fundamental human rights would be at risk,' said James Chapman, head of Advocacy and Legal Advice at Scalabrini. The sections of the Act declared invalid include those which excluded people from refugee protection on procedural grounds, without considering the merits of their claims. The court (three judges) has recognised that the challenged legal provisions, which formed the basis for the arrest, detention, and denial of access to the asylum system for new applicants, are contrary to the Constitution. In terms of the Constitution, the declaration of invalidity must now be referred to the Constitutional Court for confirmation. The interim interdict granted in the first part of the application in September last year, which prevented the deportation of individuals who had indicated an intention to apply for asylum, has meanwhile been discharged. This means the temporary protection against deportation is lifted for now, pending the Constitutional Court's decision. Mia said following Friday's judgment in which several provisions of the Act were declared invalid, they hope and trust that the Department of Home Affairs will restore access to asylum. She expressed the hope that asylum seekers' applications will be processed without subjecting them to arrest, detention, and deportation without consideration of the merits of their asylum claims. Judge Judith Cloete, who wrote the judgment, said the provisions unjustifiably limited the rights to no-refoulement and other constitutional rights, particularly those of children. This was done by placing procedural barriers without substantive merit assessments. The department's argument that the provisions acted as a "safety valve" against illegal immigrants was rejected by the court. Cape Times
IOL News
19-05-2025
- Politics
- IOL News
Judgment on asylum seekers: South Africa's legal obligations under the Constitution
Following a ruling declaring several provisions of the Refugees Act Unconstitutional which denied asylum seekers access to the asylum system, causing them to face deportation back to the country from where they came, Home Affairs was urged to respect the ruling. Image: File picture The legality of processes that have denied new asylum seekers access to the asylum system since around November 2023, leading to the arrest, detention, and deportation of asylum seekers without a refugee status determination interview, has been declared unconstitutional. The Western Cape High Court has declared several refugee protection compromising provisions of the Refugees Act and its accompanying regulations invalid. The matter was brought to court by the Scalabrini Centre of Cape Town, represented by Lawyers for Human Rights (LHR). The Scalabrini Centre and LHR challenged the unlawful practice of arresting and detaining new asylum seekers based on preliminary interviews conducted by immigration officials regarding their entry into the country. They argued that this process effectively bypassed the established asylum application process, contravening the fundamental principle of non-refoulement, which prohibits the return of individuals to places where they face persecution or serious harm. 'This judgment affirms South Africa's obligations under international refugee law. Newcomer asylum seekers cannot be penalised for the way they entered and remained in South Africa until their claims are finalised," Nabeelah Mia, the head of LHR's Penal Reform and Detention Monitoring Programme, said. She explained that 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. 'We urge the state to respect the right of asylum seekers to access the asylum system and not send people back to situations where they will be harmed, tortured, or even killed,' she said. The court was told that someone who flees war, violence, torture, or persecution should be able to apply for and receive asylum. Preventing them from doing so violates their fundamental right not to be returned to violence and persecution. It was argued that instead, new asylum applicants are arrested, detained, and face deportation. 'South Africa is legally required not to return someone to an environment in which their life, liberty, or fundamental human rights would be at risk,' said James Chapman, head of Advocacy and Legal Advice at Scalabrini. The sections of the Act declared invalid include those which excluded people from refugee protection on procedural grounds, without considering the merits of their claims. The court (three judges) has recognised that the challenged legal provisions, which formed the basis for the arrest, detention, and denial of access to the asylum system for new applicants, are contrary to the Constitution. In terms of the Constitution, the declaration of invalidity must now be referred to the Constitutional Court for confirmation. The interim interdict granted in the first part of the application in September last year, which prevented the deportation of individuals who had indicated an intention to apply for asylum, has meanwhile been discharged. This means the temporary protection against deportation is lifted for now, pending the Constitutional Court's decision. Mia said following Friday's judgment in which several provisions of the Act were declared invalid, they hope and trust that the Department of Home Affairs will restore access to asylum. She expressed the hope that asylum seekers' applications will be processed without subjecting them to arrest, detention, and deportation without consideration of the merits of their asylum claims. Judge Judith Cloete, who wrote the judgment, said the provisions unjustifiably limited the rights to no-refoulement and other constitutional rights, particularly those of children. This was done by placing procedural barriers without substantive merit assessments. The department's argument that the provisions acted as a "safety valve" against illegal immigrants was rejected by the court.
eNCA
16-05-2025
- Politics
- eNCA
Some sections of Refugee Act declared unconstitutional
JOHANNESBURG - The Western Cape High Court has ruled that certain provisions of the Refugees Act are unconstitutional and invalid. This decision comes after the Scalibrini Centre obtained an interdict preventing the Home Affairs Department from deporting foreign nationals intending to apply for asylum. The organisation argues their deportation without taking their asylum applications into account is unconstitutional.
The Citizen
16-05-2025
- Politics
- The Citizen
Victory for asylum seekers: High Court declares parts of Refugees Act unconstitutional
The organisation argued that deporting individuals without properly considering their asylum applications violated constitutional principles. Makeshift homes outside the UNHCR offices in Pretoria, 26 May 2022. Picture: Jacques Nelles The Western Cape High Court has ruled that several provisions of the Refugees Act are unconstitutional and invalid, marking a significant victory for asylum seekers in South Africa. This decision concludes a legal battle that lasted more than two years and offers relief to foreign nationals seeking refuge in the country. Western Cape High Court ruling favours asylum seekers In 2023, the non-profit organisation, Scalabrini Centre, successfully received an interdict stopping the Department of Home Affairs from deporting foreign nationals who had indicated their intention to apply for asylum under the Refugees Act 130 of 1998. The organisation argued that deporting individuals without properly considering their asylum applications violated constitutional principles. The High Court's recent 42-page judgment specifically addressed multiple contested sections of the Refugees Act. These provisions had prevented asylum seekers from qualifying for refugee status if they had entered South Africa unlawfully, had fraudulent South African identification documents, or failed to report to a refugee reception office within five days of entering the country without compelling reasons. The court found that 'simply refusing to entertain an application due to the fact that persons had entered the country unlawfully was contrary to the principle of non-refoulement'. This principle prohibits countries from deporting people who might face persecution or irreparable harm in their countries of origin. ALSO READ: Nandipha Magudumana's appeal against deportation dismissed by SCA Constitutional court confirmation pending The declaration of constitutional invalidity has been referred to the Constitutional Court for possible confirmation, as the statute's invalidity cannot take effect without approval from South Africa's apex court. The High Court declared several specific sections of the Refugees Act unconstitutional, including sections 4(1)(f), 4(1)(h), 4(1)(i), and 21(1B). Additionally, regulations 8(1)(c)(i), 8(2), 8(3), and 8(4) of the Refugee Regulations were also deemed inconsistent with South Africa's constitution. Impact on detention practices Several international organisations with expertise in refugee and migrant rights participated in the case. They expressed two primary interests: the application of the principle of non-refoulement and the impact the disputed provisions would have on migrant detention. The court noted that these organisations had demonstrated that implementation of the questioned provisions had 'radically increased the detention of migrants in South Africa.' The organisations argued that detention patterns would likely be reduced if the provisions were declared unconstitutional. ALSO READ: Big changes coming for ID, passport applications and birth registrations – Home Affairs Background on refugee protections In reaching its decision, the High Court referred to established principles from previous Constitutional Court cases, including Ashebo, Ruta, and Abore. These cases established that 'until an applicant's refugee status has been finally determined, the principle of non-refoulement protects the applicant from deportation.' The Constitutional Court had previously found that 'once an illegal foreigner has expressed their intention to apply for asylum, they must be afforded an opportunity to do so'. Furthermore, 'a delay in expressing that intention is no bar to applying for refugee status.' ALSO READ: Only South Africans receive birth certificates, says home affairs Legal framework Section 2 of the Refugees Act orders the principle of non-refoulement, stating that 'no person may be refused entry into the Republic, expelled, extradited or returned to any other country' if such actions would compel them to return to or remain in a country where they might face persecution or threats to their life, physical safety, or freedom. The court ordered the respondents to pay 80% of the applicants' costs, including those incurred during the initial part of the application. NOW READ: Resettlement of Afrikaners in US as refugees 'entirely politically motivated' Dirco says
