Delay in applying for asylum does not disqualify application, court rules
The Constitutional Court, referring to the Refugees Act, made the ruling, in which it overturned a successful appeal to the SCA
A delay in applying for asylum in SA does not disqualify such an application, the Constitutional Court ruled on Thursday.
The question the court had to answer was whether a prospective asylum seeker should be allowed to apply for asylum at any time they express an intention to do so, even when they have delayed the application. It also looked at whether an asylum seeker who has been convicted of a crime committed within SA, is barred from applying for asylum.
The apex court, in a unanimous judgment, overturned a ruling by the Supreme Court of Appeal (SCA) on the matter.
In the judgment, penned by justice Edward Cameron, the court held that the only grounds on which an application may be refused was those set out in the Refugees Act itself,
The court, however, emphasised that delay may still be relevant in evaluating the authenticity of the applicant’s claim. It also made it clear that the Refugees Act was the only pertinent statute to determine who may seek asylum and who is entitled to refugee status.
The application was brought by Alex Ruta, a former member of the civilian arm of the republican guards in Rwanda’s National Security Services, who came to SA without the necessary permits in December 2014. After discovering the details of his mission in SA was to assassinate members of the Rwandan opposition, Ruta claims to have informed the Hawks, who took him into protective custody.
However, that was not until he had been arrested in March 2016 for driving an unlicensed motorcycle and for driving without a driver’s licence, as well as for having a fraudulent asylum seeker permit.
After serving one month at the Atteridgeville Correctional Centre in Pretoria, he was informed that he was entitled to be released on parole, but would not be released until officials had confirmed his immigration status.
The home affairs officials explained that they regarded him as an illegal immigrant and his convictions and sentence disqualified him from having his refugee status confirmed. The department of home affairs, therefore, arranged that he be deported to Rwanda.
Ruta then applied for an urgent interdict against the department at the high court allowing him to apply for asylum. He succeeded, but this was overturned by the SCA.
The Constitutional Court also held that Section 4(1)(b) of the Refugees Act could not apply to the offences Ruta was found guilty of, as they were committed in SA. Section 4(1)(b) disqualifies a person for refugee status if a person has committed a crime outside of SA that is not of a political nature and which, if committed in SA, would be punishable by imprisonment.