On 27 February 2025, the Scalabrini Centre of Cape Town (Scalabrini) and Lawyers for Human Rights (LHR) will return to the Western Cape High Court. The hearing concerns Part B of an application in which we are challenging the constitutional validity of certain provisions of the Refugees Act 130 of 1998 (the Refugees Act) and its regulations. These provisions are used by the Department of Home Affairs (DHA) to prohibit newcomer asylum seekers from accessing the asylum system in South Africa. Since November 2023, the DHA has been arresting newcomer asylum seekers for not having asylum, as they arrive at Refugee Reception Offices to apply for asylum. This practice undermines the fundamental principles of both domestic and international human rights, and refugee law.

Background

Since November 2023, new applicants for asylum have been subject to arrest, detention, and deportation without the opportunity to undergo a refugee status determination interview. The arrests stem from preliminary interviews being conducted by immigration officials, who assess whether applicants have good cause for failing to enter the country through a designated port of entry and obtain an asylum transit visa at the border. The majority of applicants are found to be lacking good cause, resulting in their arrest for deportation.

This process effectively denies individuals access to the asylum system, leaving them vulnerable to unlawful detention and deportation to their home countries, where they face persecution, violence, war, detention, or even death. This is in violation of the principle of non-refoulement, the cornerstone of refugee protection.

“Our obligations under international refugee law are very clear – newcomer asylum seekers cannot be penalised for the way they entered and remained in South Africa, until their claims are finalised. When newcomer asylum seekers come to South Africa seeking refuge, the primary question in assessing their claims is whether they are at risk of persecution and harm if they are returned to their country of origin. By not allowing newcomer asylum seekers to access the asylum system, we risk sending people back to situations where they will be harmed, tortured, or even killed,” said Nabeelah Mia, the head of LHR’s Penal Reform and Detention Monitoring Programme.

“Someone who flees war, violence, torture, or persecution should be able to apply for and receive asylum. Preventing them from doing so violates their fundamental right not to be returned to violence and/or persecution. Yet, regrettably, an administrative legal barrier has been put in place that prevents some who seek refuge from being able to apply for asylum. Instead, new asylum applicants are arrested, detained and face deportation. This is not in keeping with the principle of non-refoulment the cornerstone of refugee law.  Fundamentals of the Constitution like human dignity, safety and security of person, the right to life must not be disregarded! South Africa cannot, must not, and is legally required not to return someone to an environment in which their life, liberty or fundamental human rights would be at risk.  We are accordingly approaching the Court asking that it strikes down unconstitutional provisions that violate these fundamentals. We stand in solidarity with those who fled persecution, violence, or war who have the right to asylum, and we call for restored access to the asylum process,” said James Chapman, head of Advocacy and Legal Advice at Scalabrini.

Legal Action

On 27 August 2024, the Scalabrini Centre of Cape Town represented by Lawyers for Human Rights were in the Western Cape High Court presenting part A of the application, seeking an interdict and a suspension of the application of certain amendments to the Refugees Act and associated regulations. The interdict to suspend these provisions was to ensure that newcomer asylum seekers would not be denied access to asylum and detained for deportation, while the constitutional challenge to the provisions was waiting to be heard.

On 13 September 2024, Acting Justice Manca delivered a judgment in a Part A of the application interdicting the DHA from initiating any process of deporting any foreign national present in the Republic, if such foreign national has indicated an intention of applying for asylum in terms of section 21(1)(b) of the Refugees Act. Unfortunately, the request for an interdict to prevent the arrest and detention of newcomer asylum seekers was not granted at that time.

Today, the constitutional challenge to the provisions that have allowed the practice of arrest detention and deportation of new asylum applicants to occur will be heard. Amnesty International, the Global Strategic Council for Refugee Rights (Global Council), and the International Detention Coalition (IDC) represented by Cliffe Dekker Hofmeyr, have applied to be admitted as friends of the court in the proceedings. These organisations seek to provide the Court with relevant international and comparative legal authorities on the rights of asylum seekers, and the broader protection provided by international refugee law. The Helen Suzman Foundation (HSF), represented by Norton Rose Fulbright, is also seeking to intervene as a friend of the court. HSF seeks to contribute to the proceedings by focusing specifically on the impact of the challenged provisions on children. The impugned provisions exclude asylum seekers from applying for refugee status if they do not meet specific immigration requirements. This exclusion also affects asylum seekers’ children. Their formal applications for admission as friends of the court will be heard at the start of today’s hearing.

The unlawful arrest, detention and deportation of asylum seekers is a grave violation of human rights, the Constitution, and international law. The Scalabrini Centre of Cape Town and Lawyers for Human Rights are committed to ensuring that South Africa upholds its legal and moral obligations to protect those fleeing persecution, violence, or war.

For more information visit Scalabrini’s Detention and Deportation in South Africa infographic or LHR’s infographic.