Latest news with #ScalabriniCentre
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.
News24
16-05-2025
- Politics
- News24
Parts of Refugees Act found unconstitutional by High Court
The Western Cape High Court has found sections of the Refugees Act to be unconstitutional. 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.
