The Department of Home Affairs (DHA) must go back to the drawing board to align the Refugees Act with the Constitution, following advice against its proposed approach to sections 22(12) and 22(13) of the legislation.
This emerged during a meeting in Parliament of the Portfolio Committee on Home Affairs on Tuesday, at which Home Affairs Minister Dr Leon Schreiber and other DHA officials updated the committee on progress in amending sections of the legislation that courts had ruled were constitutionally deficient.
In 2023, the Scalabrini Centre took the DHA to court over amendments made to the Refugees Act in 2020, specifically the introduction of sections 22(12) and 22(13).
These sections provided for the “automatic abandonment” of asylum applications if an asylum seeker or refugee failed to renew their permit within one month of its expiry. In practice, this meant that if an asylum seeker did not renew their visa, the DHA could presume they no longer wished to seek refugee status or apply for asylum, and could be subject to deportation or required to leave South Africa.
Scalabrini brought the case before the Western Cape High Court, arguing that the provisions infringed constitutional rights, including the rights to life, dignity, and freedom and security of the person. The organisation cited the practical and systemic challenges that applicants face at the DHA when attempting to renew their permits.
Earlier this month, the court declared the provisions invalid and unconstitutional.
Following the judgment, the DHA consulted the Refugee Appeals Authority and the Standing Committee for Refugee Affairs. Both bodies supported the subsections declared constitutionally invalid, recommending their retention but proposing that the period for renewing an expired visa be extended from one month to 180 days, in line with the Promotion of Administrative Justice Act.
However, the Office of the Chief State Law Adviser (OCSLA), which provides legal counsel to the executive and all government departments, declined to issue a preliminary certificate for the draft Bill.
It said the DHA’s approach to the judgment and its attempt to amend the legislation failed to address the fundamental reasons that sections 22(12) and 22(13) were declared invalid, which were:
• The provisions were arbitrary, as their introduction meant asylum seekers could be deported not solely on the merits of their claims but due to external circumstances.
• The provisions did not account for external factors that might prevent the renewal of asylum visas, such as the location of the nearest Refugee Reception Office (RRO), the length of queues at RROs, or the workload within these offices.
The DHA has concluded that any amendments to the Act will need to be addressed through a supplementary white paper at a later stage.
DHA pivots on legal challenge approach
The DHA’s next attempt at amending the Act is likely to comply with constitutional requirements, if Schreiber’s address to the portfolio committee is any indication.
Schreiber noted that Home Affairs was among the most litigated departments in government, if not the most, and that this was something the DHA aimed to change.
He stated that the department no longer viewed litigation as something that must always be opposed at any cost, adding: “We are looking at cases in a much more merit-based way, considering whether there are prospects of success and certainly not making decisions to oppose matters for the sake of it.”
Discussing the department’s approach to legal challenges, Schreiber said the DHA’s decisions were always anchored in legal advice, constitutionality and the requirements of the law.
“We have a high mountain to climb in terms of re-establishing the rule of law in this space of Home Affairs — whether it is civics, immigration or the asylum management system — and we cannot do that unless we ourselves are leading by example,” said Schreiber.
He emphasised that ensuring the DHA’s operations and functions aligned with the Constitution was not merely about improving the department’s image, but also about reducing costs.
“The contingent liability that comes from legal exposure, as well as the day-to-day cost of spending so much money on legal cases, is in and of itself, in the current budget environment, a very clear reason for us to focus on this area and make sure we reduce the burden of legal cases on this department,” he said.
