Asylum seekers and their children can no longer be arrested, detained and deported if they do not renew their temporary visas on time.
The Constitutional Court ruled on Tuesday the laws enforcing this were unconstitutional and infringed on international law and children’s rights.
The Scalabrini Centre, a Cape Town-based nonprofit organisation focusing on migrant rights, brought the case on behalf of asylum seekers. Scalabrini said in terms of the Refugees Act if asylum seekers fail to renew their temporary asylum visas timeously they face arrest and deportation.
However, it is a violation of various international and SA laws to send someone back to a country where they face persecution. Escaping persecution is the reason asylum seekers are in SA. Therefore, SA is violating its own laws by sending asylum seekers back.
Furthermore, when asylum seekers are deported their children face the same fate.
An asylum seeker, according to the home affairs department, “is a person who has fled his or her country of origin and is seeking recognition and protection as a refugee in [SA] and whose application is still under consideration”.
A refugee is an asylum seeker whose asylum claim has been certified. They receive more permanent protections from SA.
The problem, said Scalabrini, is that it can take on average five years for an asylum seeker to have their claim recognised. In that time they must renew their temporary visa about 20 times. And each time it can be costly in terms of travel, forcing asylum seekers to miss days of work and have them stand in queues for hours with no guarantee of seeing a home affairs official.
As a result of not overcoming a mere “bureaucratic hurdle”, people can find themselves arrested and deported to face the very persecution they tried to flee. This is unconstitutional, argued Scalabrini.
Writing for a unanimous court, acting Constitutional Court judge Ashton Schippers agreed. Asylum seekers “may face torture, imprisonment, sexual violence and other forms of persecution, even death”, he wrote, if forced to return to their home countries.
With the temporary visa, asylum seekers can “access employment, education and health services.” There is no reason for the law to threaten them with deportation just to get them to comply with the “bureaucratic hurdle” of renewal.
Schippers noted that the home affairs department initially opposed Scalabrini but eventually conceded.
Asylum seekers and refugees, Schippers said, “are an especially vulnerable group in our society, and their plight calls for compassion.”
He said the central focus in international and SA law was the principle of “nonrefoulment” (the principle that a government could not force someone to return to a country where they may face persecution).
“This principle,” he wrote, “is a cornerstone of the international law regime governing [asylum seekers and] refugees.”
The problem, said Schippers, was that before the merits of an asylum seeker’s claim could even be assessed, home affairs officials could declare asylum seekers “illegal foreigners” in terms of the Refugee Act because their visas had expired. This was merely an administrative decision where home affairs officials did not even have to consider the hardship faced by the asylum seeker fleeing persecution.
The laws “impose a double penalty: they not only exclude determination of the merits [of the asylum claim], but also prohibit any reapplication for asylum.” In other words, because asylum seekers did not renew their visas on time — often due to factors beyond their control like long queues and backlogs — they faced deportation and were not allowed to even apply again.
Schippers therefore ruled the laws were unconstitutional and no longer in force.
Asylum seekers can now be in SA without threat of deportation, while engaging with home affairs to obtain full refugee status, which can take years to finalise.
Norton Rose Fullbright, who represented Scalabrini, said: “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 [alone].” As a result, they “must have the merits of their [asylum] claim evaluated by the department” before officials can take any further action.
The home affairs department was ordered to pay legal costs.
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