Home Affairs was, for now, interdicted by the Western Cape High Court from initiating any process to deport foreign nationals from the country if they have indicated an intention to apply for asylum.
Thus, the department may not deport any foreign national or force them to return to their countries of origin, unless and until their asylum application has been finally rejected on its merits.
The order will remain in place pending a constitutional issue in which certain provisions of the Refugees Act will be challenged.
The application was brought by the Scalabrini Centre of Cape Town. It argued that the challenged provisions introduced an overlapping set of mechanisms whereby asylum seekers must first demonstrate adequate compliance with immigration procedures before they were entitled even to seek asylum.
Scalabrini’s director of advocacy, James Chapman, said in papers before court that asylum seekers who wished to approach a refugee reception office (RRO) to apply for asylum must first obtain a so-called appointment slip to do so.
The process was not regulated by law and required the asylum seeker to return in six to eight months. When, eventually, the asylum seeker returned and was granted access to the RRO, the first interview they received was held by immigration officers.
The purpose of the interview was to ascertain whether, if the asylum seeker did not hold an asylum transit visa in terms of the Immigration Act or other visa, such person had “valid reasons” or “good cause” for such an adverse status.
The immigration interview, however, did not consider the merits of the asylum seeker’s claim.
Chapman said the interview was limited to questions of procedure and the immigration officers did not apply their minds to the fundamental question of what persecution the asylum seeker would face if returned to their country of origin.
After the immigration officers found that an asylum seeker had failed their interview, the asylum seeker was arrested, detained and faced possible deportation.
In the event that an asylum seeker did pass their interview and was allowed to appear before a refugee status determination officer (RSDO) to seek asylum, the RSDO would also have to assess whether such asylum was excluded from seeking asylum under the act.
The Scalabrini Centre submitted that the effect of the challenged provisions was that almost all new asylum seekers attending on RROs were refused the right to apply for asylum and were either arrested for deportation or ordered to depart South Africa. Almost no new asylum applicants were, in fact, attending on RROs, since they had become aware that such attendance amounted, in practice, to being expelled from South Africa.
Those who did get asylum seeker status, also faced hardships under the law, the court was told. Sections of the act provided that an asylum seeker who failed to renew their asylum seeker visa within a month of its expiry, was deemed to have abandoned their application.
They may not reapply for asylum and were to be dealt with as an illegal foreigner. The effect thereof was that a process would ensue to determine whether the asylum seeker had abandoned their application for asylum.
During that enquiry, the merits of the asylum seeker’s application would not be considered and, absent any other authorisation from the department, such asylum seeker was liable to be deported.
The court said the issues raised by Scalabrini were of considerable importance and one would have expected Home Affairs to welcome an early determination of the matter. In granting the interim order, the court gave specific timelines in which the main constitutional issue should proceed.
Pretoria News
zelda.venter@inl.co.za