Scalabrini Centre in Court seeking an interdict against the Department of Home Affairs, in first step to challenging the constitutionality of the Refugee Amendment Act’s ‘deemed abandonment’ provisions.

On 28 October 2020, the Scalabrini Centre of Cape Town, represented by Norton Rose Fulbright South Africa Inc, is in the Western Cape High Court, seeking to interdict the Department of Home Affairs from implementing or operating specific provisions related to the deemed abandonment of asylum applications, which provisions were implemented with the coming into effect of the Refugees Amendment Act and Regulations from 1 January 2020.

Scalabrini Centre, in its own right as well as in the public interest, has brought a constitutional challenge against certain provisions in the Refugees Amendment Act and Refugees Regulations, which came into effect on 1 January 2020. The specific provisions being challenged are those relating to the ‘deemed abandonment’ of asylum applications simply because the asylum applicant is a month or more late in renewing their asylum document. In this challenge, Scalabrini Centre has first sought an interdict against the Department of Home Affairs, stopping the Department from implementing or applying the specific provisions. This interdict is to ensure that anyone who may have, or might still, fall foul of those provisions is protected against refoulement pending the final hearing of the main matter – the constitutional challenge of the impugned provisions.

Today, 28 October 2020, Scalabrini Centre is in court to argue why the interdict is necessary pending the finalisation of the main matter. The Department of Home Affairs has opposed the interdictory relief being sought by Scalabrini Centre. It has also opposed the constitutional challenge.

For more on the main challenge, see below.

Press enquiries

Sally Gandar, Head of Advocacy & Legal Advisor, Scalabrini Centre of Cape Town, sally@scalabrini.org.za

Nicki van’t Riet

Director, Norton Rose Fulbright, Nicki.vantRiet@nortonrosefulbright.com

Sections of the refugee law now mean that asylum-seekers who's documentation expires for thirty days or more face arrest and deportation, as their claims would be considered 'abandoned'. These people – who have sought refuge and safety in South Africa – could be deported to danger or death in their countries of origin for no reason other than they were a month late in renewing a visa.

 

Our case seeks to declare pertinent sections of South Africa's recently changed refugee law to be set aside and declared unconstitutional.

 

Abandonment of asylum claims

 

In January 2020, we expressed deep concern over the Refugee Amendment Act, which came into force on 1 January 2020. This Act came into force upon the signing and Gazetting of the Refugee Regulations. Several aspects of the new law undermine asylum seekers' and refugees' rights.

 

Of particular and urgent concern are the so-called 'abandonment clauses'. We are challenging the constitutionality of Sections 22(12) and (13) of the Refugee Amendment Act and Regulation 9 of the Refugee Regulations. 

 

These sections of the Refugee Amendment Act and Regulations effectively mean that the claim of an asylum-seeker in South Africa 'must' be considered 'abandoned' if their asylum seeking visa expires for 30 days or more.

 

If there are no 'compelling reasons' around why an asylum seeker holds and expired permit, these persons would be treated as 'illegal foreigners' and risk facing arrest and deportation. The Refugee Amendment Act also prevents that person from re-applying for asylum in South Africa – which seems to run against international refugee law.

 

The difficulties of ensuring a valid asylum seeker visa

 

In the daily work of The Scalabrini Centre of Cape Town, we consult with many asylum-seekers who, despite their best efforts to extend their asylum seeker visas, are simply unable to do so. Remaining on a valid asylum seeker visa is no easy feat: Many asylum seekers face long journeys to Refugee Reception Offices (RRO) to apply for an extension of their permit. 

 

Depending on their nationality, they may only approach a RRO on certain days. Should they manage to arrive on the right day, under-staffed Refugee Reception Offices result in long snaking queues. Not everyone is attended to. Asylum seeker visas are extended for anything between a month and six months, meaning the process described above must be undertaken on a regular basis.

 

The Department of Home Affairs has itself confirmed that the asylum process is subject to colossal administrative delays: the process of considering an asylum application takes, on average, more than 5 years.

 

Provisions run counter to South African constitution and international law

 

The 'abandonment' provisions of the Refugee Amendment Act run counter to the fundamental legal and constitutional basis of refugee law, namely the right of non-refoulement. This is a fundamental of international and national refugee law that prevents states from forcibly returning a person to a country or place where they would face reasonable risk of harm or death.

 

The provisions allow for a person with a valid asylum claim to be returned to their country of origin to face persecution merely because they have failed to meet a procedural requirement.

 

The consequences of this system in South Africa will be devastating. Thousands of people from across the continent, and the world, would be barred from asylum for no reason other than they were a month late in renewing a visa.

 

Our demand

 

Our case requests that these Sections 22(12) and (13) of the Refugee Amendment Act and Regulation 9 of the Refugee Regulations are declared unconstitutional and invalid, and that they are set aside.

In response to the growing need, the Scalabrini Centre of Cape Town set up a fundraising drive to support those asylum-seekers, refugees and migrants specifically in need during the nationwide lock-down due to the Covid-19 outbreak.

Whilst provisions have been put in place by the South African government for some of the most vulnerable members of society, much of the Covid-19 relief is not available to the refugees, asylum-seeker and migrant community.

Money raised will go directly to our Welfare Programme who will assist those migrants, asylum-seekers and refugees who are in most desperate need at this time. All donations will receive an A18 certificate on request which makes the donations tax deductible.

If you would like to make other donations such as food and clothes please contact info@scalabrini.org.za.

We have reached our target, thank you for everyone's support. As we continue to navigate lockdown and what this means for migrants and refugees the more we raise the more families we can assist during this unprecedented time.

Following the #BlackLivesMatter protest movements in early June 2020 after the murder of George Floyd, our Backabuddy campaign received a spike in donations. Thank you to all those who donated, to support refugees and migrants in South Africa whose lives have become increasingly vulnerable following the pandemic. 

We stand in solidarity with movements calling for justice, reformation and an end to systematic police brutality and racism. Last week, the world witnessed the murder of George Floyd by a police officer in the USA. Meanwhile, in South Africa, the number of deaths in SANDF and SAPS custody under lock-down emerged (which is at least 11, and included two members of South Africa’s migrant/refugee community). Both of these acts of police brutality are the latest in an ugly history of brutality and racist oppression.

We stand in solidarity with #Black_Lives_Matter, in a call for justice and for reformation. We support organisations doing important work in trying to achieve reform in the criminal justice and prisons sector. We support the important work of Lawyers For Human Rights, the Detention Justice Forum, and others, in this regard. We also support and acknowledge the grassroots and community organisations doing this work

Here is a summary of our impact so far with the funds raised.

On 4th May 2020, the Scalabrini Centre of Cape Town, together with Lawyers for Human Rights and the Centre for Child Law, wrote to the Department of Social Development, SASSA and the Presidency about the special Covid-19 Social Relief of Distress Grant.

This is a temporary, emergency grant for people who are in urgent material need during the covid-19 pandemic. It seems that this grant is open to SA citizens, people with refugee status, and permanent residents.

We welcome the roll-out of this much-needed grant, and other measures to increase certain SASSA grants at this time. However, in our letter, we urge DSD and SASSA to ensure that all persons are assisted and that there is equal treatment. We urgently asked that the Department of Social Development and SASSA to:

(1) Confirm that all children in South Africa – regardless of their nationality or documentation status in South Africa – are able to receive the emergency food parcels

(2) Explain why certain people (those with asylum seeker status or undocumented persons) are not able to apply to the social relief distress grant and,

(3) provide a detailed plan on how undocumented persons and asylum seekers will be assisted going forward.

Trace the Face is a new programme launched in partnership with The National Red Cross. The goal of the program is to prevent separation & disappearances, to restore and maintain contact between family members and to reunite family members.

The Scalabrini Centre expresses solidarity and support for our partners organisations’ recent court case on undocumented children regarding their access to education in South Africa.