Automatic abandonment of asylum application: An analysis of the
Scalabrini Centre of Cape Town v Minister of Home Affairs judgment
SA Migration | 17 May 2023
The process of applying for asylum in South Africa is governed by the
Refugees Act 130 of 1998 (Refugees Act). Sections 22(12) and 22(13) were
introduced into the Refugees Act by the Refugees Amendment Act 11 of 2017,
which came into effect on 1 January 2020. These provisions, and their
subsequent Regulations, were the subject of litigation launched in the Western
Cape High Court.
The Scalabrini Centre of Cape Town instituted proceedings against the
Department of Home Affairs (DHA), challenging the constitutional validity of
sections 22(12) and 22(13) and Regulation 9 and Form 3 of the Refugee
Regulations. These impugned provisions create an automatic presumption that
asylum seekers have abandoned their application if they do not renew their
asylum visa within 30 days after its expiry – the effect of this automatic presumption
can be far-reaching and may lead to asylum seekers who have genuine claims
being deported back to circumstances in which they can face further
persecution.
Non-refoulement
At the heart of this matter lies the principle of non-refoulement.
“The principle of non-refoulment is the cornerstone of international refugee
protection” – it ensures that an individual is not returned to any place
where there lies a possibility that they may face persecution. South Africa has
ratified various international treaties which speak to this principle, and in
so doing has bound itself to abide by the tenets of the international
covenants. Further, in compliance with its international obligations, South
Africa promulgated the Refugees Act, which entrenches the principle of non-refoulement
in section 2. This demonstrates the commitment South Africa initially had to
the protection of forced migrants.
However, over the years, we have seen our commitment to the progressive
values underlying the Refugees Act dwindle, and the ability to apply for asylum
become more stringent and difficult to access. The provisions in question in
this matter are a direct reflection of the times we are in and the arbitrary
barriers foreign nationals face in trying to remain documented.
The applicants in this matter succinctly placed before the court the
consequences of the impugned provisions, which are:
- Asylum applications can automatically be
deemed abandoned, without considering the merits of the individual’s
claim.
- While in theory the individuals can make
representations, no clear procedures exist to do so.
- Children are also at risk of being arrested,
detained and undocumented.
Regulation 9(3) of the Refugees Act provides that the DHA can only allow
for the late renewal of a permit if the asylum seeker has a compelling reason
and proof thereof (such as hospitalisation) for the delay. This ultimately
means that asylum seekers who simply cannot afford to travel to the Refugee
Reception Offices within that month, could be left undocumented and would then
struggle to obtain employment, gain access to healthcare and education – they
would, as a result, be dealt with as an illegal foreigner in accordance with
section 32 of the Immigration Act 13 of 2002.
The respondent argued that the provisions were necessary to help prevent
recalcitrant asylum seekers from abusing the asylum system. Further, it argued
this was necessary to aid in dealing with the current backlog of dormant
applications and put in place more severe penalty provisions for abusive claims.
However, the applicants argued that the respondent failed to acknowledge
and accept what the major contributing factors to the backlog are. These
factors include the respondent’s decision to close Refugee Reception Offices in
certain urban areas, its inefficient adjudication processes, and its lack of
capacity to deal with the asylum applications.
The Consortium for Refugees and Migrants in South Africa was admitted as
an amicus curia in the matter and put forward submissions that these “abandonment”
provisions were not in the best interests of children as they would result in
children becoming stateless and being at risk of statelessness.
International obligations
In its assessment of the matter, the court confirmed South Africa’s
responsibility to comply with its international obligations and to establish
systems and allocate resources thereto. The impugned provisions constitute a
significant limitation on the right to non-refoulement, because they had
the potential to force an asylum seeker to return a country they previously
fled from and face further persecution. A bureaucratic review by the Standing
Committee on Refugee Affairs cannot serve as a legitimate constitutional basis
for limiting the right to non-refoulement.
The court therefore held that the “abandonment” provisions were
arbitrary as asylum seekers would be deported based on external circumstances,
such as failing to renew their permit instead of the merits of their claim.
This would result in a violation of the core principles of refugee law, which
are to ensure to ensure forced migrants are awarded the full protection of the
Constitution, until the merits of their claims have been adjudicated.
It was therefore declared that:
- Sections 22(12) and 22(13) of the Refugees Act
are inconsistent with the Constitution and invalid to the extent that they
provide that asylum seekers who have not renewed their visas in terms of
section 22 of the Refugees Act within one month of the date of expiry, are
considered to have abandoned their asylum applications.
- The state is to amend and ameliorate the
impugned provisions, in line with the spirit of the Constitution.
- Regulation 9 and Form 3 are inconsistent with
the Constitution and invalid and reviewed and set aside.
- The order of invalidity referred to the Constitutional
Court for confirmation.
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