Pretoria – The Department of Home Affairs has been interdicted from implementing certain provisions of the Refugees Act as well as new regulations which make provision for asylum seekers to be sent away if they are a month late in renewing their permits.
In most cases, these asylum seekers face persecution, death or rape when they return to the countries from which they had fled, according to the Sclabrini Centre, a non-profit organisation assisting them.
Judge Elizabeth Baartman handed down judgment in the Western Cape High Court, which suspended the operation of certain provisions of the act and the 2018 regulations thereto, both of which came into effect on January 1. The suspended provisions are commonly referred to as the “abandonment provisions”.
The suspension will operate pending a later application before the Constitutional Court in which it will be asked to confirm the high court judgment.
The Scalabrini Centre of Cape Town, represented on a pro bono (free of charge) basis by Sandton law firm Norton Rose Fulbright, turned to court to prevent the short and long-term operation of the abandonment provisions.
It was argued that the provisions infringed on asylum seekers’ rights to life, freedom and security of person, dignity and equality. The court was told that the provisions also prevented South Africa from fulfilling its international law obligations towards refugees, including the international law principle of non-refoulement.
The abandonment provisions provided that in the event that an asylum seeker failed to renew their asylum visa timeously, their applications are deemed abandoned. Arrest and deportation would follow for individuals with valid and undecided claims for asylum.
They would be returned to countries of origin where they could face death, torture, sexual violence and other forms of persecution from which they had fled, or to countries experiencing grave disturbances to the public order.
In the past, only where an asylum seeker had a compelling reason – accompanied by proof – for delaying to renew a permit following a lapse (such as hospitalisation or imprisonment) could the department pardon the late renewal.
The court was told that this was problematic as it meant that refugees could be returned to face persecution, without ever having the substantive merits of their asylum application determined. It also left asylum seekers vulnerable in South Africa.
This is because, essentially, undocumented foreigners struggle to access health care, employment and education while they await the decision of whether their reason for late renewal meets the department’s high threshold.
The centre said the reality for asylum seekers was that they were frequently required to renew their asylum visas.
In the renewal process, they experienced extraordinary delays caused by the administrative failures of the department.
These are often exacerbated by socio-economic factors such as not having the means to travel to far away Refugee Reception Offices as frequently as is required and waiting in long queues.
They also face officials who refuse to renew visas without receiving bribes or the general inefficiency of the Refugee Reception Offices that are over-worked but under-staffed.
In light of these realities, many asylum seekers fail to renew their visas for valid reasons. Judge Baartman delivered a powerful judgment, emphasising that the case did not involve imaginary victims. She said the suspended abandonment provisions affected real asylum seekers who could face serious human rights violations should the provisions remain in place. She criticised the department’s conduct in the case, which she characterised as regrettable and unhelpful.
Lawyers acting for the asylum seekers said the judgment had come as a relief to many who had been unable to renew their visas for valid reasons and would give them an opportunity to do so without the fear of being treated as illegal foreigners and returned home.
These include many asylum seekers who may have been prevented from renewing their documents before the pausing of services at refugee reception offices during the lockdown.
This is to remain in effect until at least the end of January.