High court halts deportation of asylum seekers until applications are decided on merit

The Western Cape High Court has provisionally halted the deportation of all foreign nationals seeking to apply for asylum pending the finalisation of constitutional litigation about the law on refugees.

Last week, following an application by the Scalabrini Centre in Cape Town, acting Judge Brandon Manca ordered that foreign nationals may not be deported if they have indicated their intention to apply for asylum under the Refugees Act.

Under international human rights law, the principle of non-refoulement guarantees that no one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm, such as a war-like situation.

According to the Refugees Amendment Act, asylum seekers who enter the country through a port of entry are granted an asylum transit visa. Those who do not enter through an official port of entry or are refused an asylum transit visa will, when applying for asylum at the Refugee Reception Office, be interviewed by an immigration officer to find out why they do not have this visa.

Until the current court case, those who did not enter the country legally through a port of entry could be arrested, detained and then deported after a “good cause interview” they were obliged to attend at the Refugee Reception Office.

The legal team for the Scalabrini Centre argued that the part of the law being challenged in court offended the international law principle of non-refoulement and should be struck down.

Scalabrini’s director of advocacy, James Chapman, stated in papers before the court that the current procedure entailed that asylum seekers who wished to approach a Refugee Reception Office to apply for asylum first had to obtain an appointment slip to do so. This process was not regulated by law. According to Chapman, the asylum seeker had to return in six to eight months to access the Refugee Reception Office.

When, eventually, the asylum seeker accessed this office, they needed to pass a first interview, known as a “good cause” interview, to ascertain if the asylum seeker had a visa and, if not, if they had a good reason for not having one. Chapman explained that the merits of an asylum seeker’s claim were not considered at this hearing.

If immigration officers found that an asylum seeker had failed this interview, the asylum seeker was arrested, detained and brought before a court to initiate the deportation process.

Chapman continued that the courts, in the vast majority of cases, confirmed the adverse decisions of the immigration officers (typically without providing written judgments, according to Chapman).

As a result, Chapman explained in court papers, almost all new asylum seekers attending 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 are attending Refugee Reception Oiffces since they have become aware that such attendance amounts, in practice, to being expelled from South Africa,” Chapman said.

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The legal team for the Minister of Home Affairs, the director-general of Home Affairs, the chief director of asylum seeker management, the Refugee Appeals Authority and the Standing Committee for Refugee Affairs challenged the application only for an interim interdict. They did not address the constitutional challenge against the legal provisions, which will be heard in February.

Manca refused an application to stop the challenged provisions from being implemented.

“I accordingly intend only to make an interim order interdicting the deportation of foreign nationals who evince an intention to make an application for asylum until such time as their asylum application has been decided on its [merits],” Manca wrote in his ruling.

Protecting the right to asylum