ConCourt clarifies act for asylum seekers

The apex court has reversed amendments to the act that made it difficult for refugees to apply for asylum while making it easy for Home Affairs officials to unjustly detain and deport them.

The Constitutional Court brought much needed clarity to the application of the new amendments to the Refugees Act in relation to asylum applications. The apex court ruled that refugees and asylum seekers can now apply for permits locally, and that they can stay in the country pending the status of their application for asylum.

It is a decision that rescued Desta Abore, an Ethiopian national, from an unlawful detention that lasted for almost a year. 

It is uncertain when exactly Abore entered the country. The high court held that he entered on 5 January 2017, while the Constitutional Court preferred mid-December 2019. What is not disputed, however, is that he entered illegally through Zimbabwe. He said he came to South Africa to escape persecution in his home country given his involvement in opposition politics. 

Following his arrest, on 7 July 2020, in Eshowe, northern KwaZulu-Natal, Abore was convicted and sentenced by the local magistrate’s court to 50 days imprisonment with an option to pay a fine of R1 500 for entering the country unlawfully. Despite paying the fine, Abore served his prison sentence. The detention, which was supposed to end on 25 August 2020, continued beyond that date. 

Because of the endless postponements, and change of legal representation, Abore languished in prison for over a year.

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It was only in February 2021 that the Department of Home Affairs applied for a warrant extending Abore’s detention for purposes of deporting him. The magistrate’s court in Eshowe granted the application and he was moved to Lindela Repatriation Centre in Krugersdorp – where he was detained for 30 days. The department did not deport Abore immediately when he was at Lindela; instead, they approached the magistrate’s court in Krugersdorp for an order to detain him for a further 90 days. The court granted this order. 

Aggrieved by this, Abore approached the high court in Johannesburg for an interdict to stop the department from deporting him while he lodged his asylum application. He also wanted the court to declare his detention unlawful. 

The high court dismissed his application on the basis that the law on refugees had changed and those principles established by our law and courts had no force in Abore’s case. The court further ruled that Abore did not have the right to apply for asylum locally. 

That Abore had been in the country for several years and had not shown any intention to apply for legal refuge barred him from applying for asylum, ruled the high court. A well-established principle in our law which stipulates “that a delay by an illegal foreigner in expressing an intention to apply for asylum does not bar him or her from applying for refugee status” did not convince the high court in Johannesburg that Abore is entitled to apply for asylum. 

Instead, the court held that this principle had no force because of new amendments to the Refugees Act. For this reason, and because the fine receipt was not presented as evidence, the high court held Abore’s detention was lawful. 

Unjust amendments

The amendments to the Refugees Act came into effect on 1 January 2020. Since then, they have been the subject of debate and litigation. The provisions of the amendments and regulations have been criticised for being unfair and unjust.

One of the provisions, for example, states that an asylum application is deemed abandoned if an asylum seeker had not renewed documentation within 30 days of its expiration. When the amendments came into force, the implementation of this provision was challenged when the Scalabrini Centre applied for an interdict to stop its implementation at the high court in Cape Town. 

The court ruled in favour of the Scalabrini Centre and effectively stopped the implementation of the provision pending its constitutionality challenge. 

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Because of these amendments to the act, many refugees faced the prospect of being deported to dangerous places they had escaped, with their children condemned to statelessness. The high court deemed this incompatible with the Constitution and at odds with international law principles. 

Another amendment highlighted by the Abore case is a provision that requires an immigration officer to conduct an interview with an undocumented migrant, demanding that they provide reasons for not having documentation. 

Before being allowed to apply for asylum, the prospective applicant must also show “good cause” for their illegal entry, or stay, in the country. The department has interpreted this to mean that an undocumented migrant does not have an automatic right to apply for asylum. 

Correcting a wrong

It is from the high court judgment that Abore directly approached the Constitutional Court, appealing the findings and seeking an interdict to stop his imminent deportation. 

The apex court then set aside the decision of the high court in Johannesburg, ruling that Abore is entitled to remain in South Africa until his status is determined. The department was given 14 days to take reasonable steps to give effect to Abore’s intention to apply for asylum in terms of the Refugees Amendment Act. 

In effect, the Constitutional Court affirmed the non-refoulement principle which states that no one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm. Whether the person seeking asylum took a year to apply or two, it is unlawful to deny them the right to apply for asylum and to deport them. 

Both at the high court and the Constitutional Court, the department argued that Abore only showed intention to apply for asylum after his arrest. That, therefore, disqualified him in terms of the amendments.

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In response to this, the Constitutional Court held that “… Abore has indicated his intention to apply for asylum. He has not yet been afforded an opportunity to do so. His refugee status has not been finally considered nor determined. Until this happens, the principle of non-refoulement protects him. The amendments do not affect his eligibility to be afforded this protection irrespective of whether he arrived in the country before or after the Refugees Act was amended, nor do they deprive him of the entitlement to be granted an interview envisaged … [by the] regulations.”

The court affirmed that the principles protecting asylum seekers coming to the country “illegally” still applied despite amendments. The Constitutional Court further ruled that Abore’s detention from 26 August 2020 to 7 February 2021 and between the period of 30 May 2021 to 25 June 2021 was unlawful. 

The department was ordered to pay Abore’s legal costs, for both the high court and Constitutional Court. 

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