Relief for new asylum seekers

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.  

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