Concourt ruling on asylum seekers welcomed by human rights groups

Human rights groups have welcomed the Constitutional Court’s striking of provisions of the Refugee Act that deems asylum seekers who fail to renew their visas within a month before they expire as having permanently abandoned their asylum applications.

On Tuesday, the Concourt stated these provisions violate the principle of  non-refoulment.  

“The impugned subsections violate the principle of  non-refoulment, infringe the right to dignity, unjustifiably limit the rights of children, and are irrational and arbitrary. It follows that these provisions are unconstitutional and that the high court’s order to that effect must be confirmed,” said the court.  

This matter was initially brought to the high court in March 2020 by the Scalabrini Centre of Cape Town against the minister of home affairs Aaron Motsoaledi and his department’s director-general, Livhuwani Makhode.

Paulette Baloyi, an advocacy officer at the Consortium for Refugees and Migrants (CoRMSA), said they welcomed the judgment as it was unrealistic to give an asylum seeker only a month to renew their visas.

“There are multiple reasons why someone might not be able to renew their visas in a month. We only have five centres in the country where you can renew your permits, and many people find themselves moving around the country. For example, if you entered Musina and obtained your permit there, then suddenly you get an opportunity in Kimberley and end up living there. There may be circumstances that prevent timely renewal, such as being unable to find assistance on the reporting day, medical emergencies, losing permits, or lacking the financial capacity to travel to the post of their original visa application,” said Baloyi. 

CoRMSA was admitted as an amicus curiae in these proceedings, providing the court with additional perspectives, insights or arguments that may be relevant to the case.  

According to the ConCourt, CoRMSA presented evidence that the impugned subsections had been applied to 394 asylum seekers whose applications for asylum were deemed to have been abandoned.  

“For nearly two years, some of them were denied the opportunity of renewing their visas. Consequently, they were unable to find work in the formal sector, could not gain access to basic services such as healthcare and banking, and faced the risk of arrest, detention and deportation,” said the ConCourt.

James Chapman, Head of Advocacy & Legal Advisor at Scalabrini, said they had received reports and complaints from seekers. This was the reason that prompted them to open the application in 2020. He expressed the organisation's pleasure with the ruling.

“ Having the constitutional court confirm that the provisions are unconstitutional and failed to protect the rights of asylum seekers, thereby safeguarding the rights of children as well, is a great victory and a very positive step in the right direction.,” he said.

The department denied that the impugned subsections violate the principle of non-refoulement  and alleged that they were justifiable under section 36 of the Constitution.  

“The grounds of justification were these. The administration of visas, specifically expired visas, places a huge burden on the department’s officials because a substantial number of applicants are not genuine asylum seekers and know that their asylum applications will be rejected. As a result, the department has some 737,315 inactive visa applications under section 22 of the Refugees Act. These inactive cases disproportionately exceed the number of active cases, creating a massive backlog and resulting in delays in finalising asylum applications,” said the respondents.  

According to the auditor-general, this backlog would take 68 years to clear.

“In most cases, asylum seekers pay an admission of guilt fine for a breach of visa conditions and disappear into society until their next run-in with law enforcement. The impugned subsections were implemented to reduce the backlog of inactive cases and ensure that asylum seekers pursue their applications to completion,” said the department of home affairs.  

CoRMSA presented evidence that the children of an asylum seeker whose application was deemed to be abandoned could not attend school for the entire 2020 academic year because they had no visas.  

“Children’s applications for asylum are generally tied to those of their parents. The deemed abandonment of parents’ asylum applications has had drastic consequences on their children. In another case, an asylum seeker’s son could not register for matric. Like their parents, without visas, children also face the risk of arrest, detention and deportation,” said the ConCourt.  

Baloyi said the justification of the department was invalid, once again expressing that the organisation was delighted by the court’s ruling.