Top court win for asylum seekers as Refugees Act provisions struck down

In a unanimous decision, the Constitutional Court has struck down provisions in the Refugees Act that asylum seekers who have not renewed their visas within a month of expiry are considered to have abandoned their applications.

Acting judge Ashton Schippers, writing for the court, said the provisions and a linked regulation violate several constitutional rights in that the “deemed abandonment” provisions caused asylum seekers to be cut off from essential services such as access to banking, education and healthcare.

It also exposes asylum seekers and their children to the constant risk of arrest, detention and deportation. “All this, simply because a visa has not been renewed,” said Schippers.

The matter came before the apex court in what became unopposed confirmation proceedings of a Western Cape High Court ruling earlier in 2023 that the relevant provisions in the act were unconstitutional.

The application was launched by the Scalabrini Centre of Cape Town, supported by the Consortium for Refugees and Migrants SA (Cormsa), admitted as amicus curiae.

The minister and director-general of home affairs opposed the application in the high court, claiming the administration of visas placed a huge burden on the department’s officials because many applicants are not genuine asylum seekers. The provisions in the act, it was argued, were implemented to reduce the backlog of inactive cases and ensure that asylum seekers pursue their applications to completion.

In the Constitutional Court, however, they abandoned their defence, conceding that SA is obliged to receive refugees in accordance with international law and that the principle of nonrefoulement (the practice of not forcing refugees or asylum seekers to return to a country in which they are liable to be subjected to persecution) is enshrined in the act.

Especially vulnerable

Despite this concession, the court still needed to determine the matter. Schippers said refugees are an “especially vulnerable group” and their plight calls for compassion.

He said the provisions in question disregard the protection of asylum seekers from refoulement, because they could be expelled or returned to the countries from which they fled without a proper inquiry, simply because they had not renewed their visas.

“As stated in the applicant’s submissions in this court, in those countries they may face torture, imprisonment, sexual violation and other forms of persecution, even death. And this, without any consideration of the merits of their claim for asylum,” Schippers said.

The provisions impose a double penalty: it not only excludes determination of the merits, but prohibits any reapplication for asylum, the judge said.

Cormsa had presented evidence of 394 asylum seekers whose applications had been deemed abandoned and had been treated as illegal foreigners. Children, Schippers said, are particularly at risk “because of bureaucratic circumstances beyond their control”.

There had been evidence about one child who had been unable to attend school for the 2020 academic year, and another had not been able to register for matric.

Claim merits

“These subsections are irrational and arbitrary. They serve no legitimate government purpose.

“The merits of the claims for asylum are never considered,” Schippers said. The minister and the director-general “wrongly assume” most asylum seekers have no valid claims to asylum.

“This assumption violates the core principle of refugee law that asylum seekers must be treated as presumptive refugees until the merits of their claim have been finally determined through a proper process.

“The evidence shows that the nonrenewal of visas — often the consequence of long queues, the financial burden of getting to reception offices and having to take time off work — has not caused the backlog of asylum applications, nor imposed a significant burden on the department,” Schippers said.

The apex court confirmed the high court’s declaration of unconstitutionality, backdated to January 1 2020, when the provisions came into operation.

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