On 27 February 2025, the Scalabrini Centre of Cape Town, in partnership with Lawyers for Human Rights (LHR), will return to the Western Cape High Court to continue their efforts in challenging the constitutional validity of specific provisions of the Refugees Act 130 of 1998.Â
This hearing will address legal amendments being utilised by the Department of Home Affairs to obstruct new asylum seekers from accessing the asylum system upon their entry into South Africa. The Refugees Act, established in 1998, was originally designed to protect those seeking asylum in South Africa. However, recent amendments have significantly restricted access to refugee protection, marking a departure from its initial humanitarian purpose.
The repercussions of the current legal framework have been severe. Since November 2023, new asylum seekers have faced a disconcerting reality where arrival at Refugee Reception Offices to apply for asylum has led to their arrest. These individuals, often fleeing dire threats, including persecution, violence, and war, are being detained and deported without being granted a chance to undergo a refugee status determination interview. According to recent statistics from the United Nations High Commissioner for Refugees, over 2,500 asylum seekers have been affected by these measures since their implementation, with approximately 80% facing immediate deportation threats.
The arrests arise from preliminary interviews conducted by immigration officials, who must evaluate whether applicants have justifiable grounds for not entering the country through designated points of entry and obtaining an asylum transit visa. The overwhelming majority of those assessed are found to lack the requisite grounds, which has subsequently led to their arrest and imminent deportation.
Nabeelah Mia, head of LHR's Penal Reform and Detention Monitoring Programme, has stressed the grave consequences of the department's actions: "Our obligations under international refugee law are very clear, new asylum seekers cannot be penalised for the way they entered and remained in South Africa, until their claims are finalised. We risk sending individuals back to harm if we do not allow them access to asylum."
Mia's sentiments were echoed by James Chapman, head of Advocacy and Legal Advice at Scalabrini, underscoring the inhumane dimension of preventing individuals from applying for asylum. "This is not in keeping with the principle of non-refoulement, the cornerstone of refugee law. Basics of the Constitution, such as human dignity, safety, and the right to life, must not be disregarded."
Previous legal actions taken by the Scalabrini Centre and LHR resulted in a temporary interdict from Acting Judge BJ Manca, which prevented deportations for individuals who expressed intent to apply for asylum. However, the request for a broader interdict halting the arrest of new asylum seekers was denied, necessitating the need for the current constitutional challenge.
The proceedings will not only address the legality of the department's restrictive practices but will also draw input from organisations such as Amnesty International, the Global Strategic Council for Refugee Rights, and the International Detention Coalition. These groups are seeking to inform the court with international legal standards regarding the rights of asylum seekers. The Helen Suzman Foundation will also seek to intervene, aiming to highlight the ramifications of the challenged provisions on vulnerable children.
If successful, the constitutional challenge could lead to significant reforms in South Africa's asylum system, ensuring better protection for those seeking refuge. Legal experts suggest the outcome could set a precedent for refugee rights across the African continent.
The ongoing unlawful arrest, detention, and deportation of asylum seekers represents a profound violation of human rights, the South African Constitution, and international law. The Scalabrini Centre of Cape Town and Lawyers for Human Rights remain resolute in their commitment to ensuring that South Africa upholds its legal and moral obligations to protect those seeking refuge from peril.
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