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Judgment on asylum seekers: Related Articles
South Africa's legal obligations
under the Constitution
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Following a ruling declaring several provisions of the Refugees Act Unconstitutional which denied
asylum seekers access to the asylum system, causing them to face deportation back to the country
from where they came, Home Affairs was urged to respect the ruling.
Image: File picture
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, has been
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declared unconstitutional.
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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 affirms South Africa’s obligations under international refugee law.
Newcomer asylum seekers cannot be penalised for the way they entered and
remained in South Africa until their claims are finalised," Nabeelah Mia, the head of
LHR’s Penal Reform and Detention Monitoring Programme, said.
She explained that 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.
“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.
MONDAY, MAY 19, 2025
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
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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.
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