Refugees’ right to protection in South Africa upheld in the Constitutional Court

The Constitutional Court has struck down legislation which permitted the Department of Home Affairs (the DHA) to remove refugees from the protection of the Refugees Act, 1998. The offending provisions would have allowed the DHA to reject applications for asylum without determining the merits of the applicant’s claim to asylum, and to send them to their countries of origin to potentially face persecution, sexual violence, torture and even death.

The Scalabrini Centre of Cape Town, represented by the Impact Litigation team at Norton Rose Fulbright and Advocates David Simonsz and Nomonde Nyembe, successfully brought a challenge to provisions in the Refugees Act and Regulations which empowered the Department to treat refugees as illegal foreigners where they failed to renew their asylum seeker visas within thirty days of expiry. Whilst such failure could be condoned, such required compelling reasons, such as hospitalisation or incarceration. In terms of the provisions, refugees who did not receive condonation for their late renewal would be deemed to have ‘abandoned’ their application for asylum in South Africa, and would thus be subject to arrest and deportation to the very countries from which they fled various human rights violations.

Norton Rose Fulbright’s Impact Litigation team says that there are many reasons why asylum seekers can often not renew their asylum visas timeously, many of which are related to the Department’s lack of capacity and cumbersome renewal practices, which often require regular renewals in person at inconvenient locations every few months for years on end. Asylum seekers are often forced to risk losing employment to travel to different cities and spend a day renewing their visas. Reports of corruption and long queues have also exacerbated this problem.

The Constitutional Court agreed that South Africa’s Constitution and international law requires the Department to access an individual’s claim for asylum and to extend protection where the claim for asylum has been verified. The Constitutional Court held that the struck down provisions were irrational, arbitrary and infringed upon refugees’ rights to life, dignity and were not in the best interests of refugee children. The Court held that South Africa is committed to the principle of non-refoulement and that:

Refugees are by definition persons in flight from persecution or threats to their life, physical safety or freedom and other serious human rights abuses, and should not be forced to return to the country inflicting these harms.

The effect of this ruling is that while asylum seekers may face other consequences for failing to renew their visas timeously, they cannot be deported on that basis and must have the merits of their claim evaluated by the Department.

Media contact

Rudene van Heerden
Chief Marketing Officer | Business Development & Marketing
rudene.vanheerden@nortonrosefulbright.com

Note to the media: further context below

On 13 February 2023, Judge Goliath, the Deputy Judge President of the Western Cape High Court, handed down judgment in which she declared section 22(12) and 22(13) of the Refugees Act, 1998 (the abandonment provisions) inconsistent with the Constitution in terms of section 172(1)(a) of the Constitution. The court further held that Regulation 9 and Form 3 of the Refugee Regulations (published in GNR 1707 Government Gazette 42932 on 27 December 2019) inconsistent with the Constitution and invalid and therefore reviewed and set aside as unlawful.

The High Court’s order in relation to the Regulations is effective immediately from 13 February 2023. The High Court’s order in relation to the unconstitutionality of section 22(12) and 22(13) of the Refugees Act, 1998, was confirmed by the Constitutional Court on 12 December 2023 and takes effect from that date.