Concourt takes
compassionate approach to people who enter country unlawfully
Asylum delayed is not (necessarily) asylum denied
17 August 2021 – Groundup
If a
foreign national arrives in South Africa unlawfully and takes as long as 15
months to apply for asylum, are they barred from doing so? Is the person liable
for deportation or should they be given an opportunity to at least apply for
asylum? The Constitutional Court recently considered these questions.
Background
Alex
Ruta, a Rwandan, arrived in South Africa in December 2014. He came via Zimbabwe
and did not enter the country with a visa.
In March
2016, he was arrested for a traffic offence for which he was later convicted.
Once he was detained, the Department of Home Affairs arranged for him to be
deported. Ruta, however, opposed this by applying for asylum.
The High
Court ruled in Ruta’s favour and found that entering South Africa unlawfully
does not bar you from applying for asylum. But the Supreme Court of Appeal
overturned the High Court’s decision. Applications for asylum must be made
within a reasonable time, the court said. Because Ruta took 15 months to apply
for asylum he was barred from doing so and liable for deportation.
Constitutional Court
By the
time the matter came before the Constitutional Court, Ruta had already been
released from detention due to the earlier High Court order. His application
for asylum had been made and the outcome was pending.
Although
the case was now moot (hypothetical), the Constitutional Court nevertheless
decided to rule on the matter because of its immense public importance. Lawyers
for Human Rights represented Ruta. The judgment
by Justice Edwin Cameron was unanimous.
The court
had to decide two related issues. First, how a conflict between the Immigration Act and the Refugees Act should be resolved. Second, what
effect if any a delay has on an application for asylum.
The principle of non-refoulement
The court
pointed out that the Refugees Act embodies the international human rights law
principle of non-refoulement. This is the principle that no person may be
returned to a country where they are at risk of their fundamental rights being
violated. This is the foundational principle of refugee law which informs the
interpretation of every provision of the Refugees Act.
Also, the
principle has a bearing on how any dispute related to an asylum seeker or refugee
should be resolved. This would mean that the principle even trumps provisions
of the Immigration Act to the extent that they apply to refugees.
The court
highlighted that the Refugees Act provides protection for both de facto
and de jure refugees. The latter refers to those who have already been
granted asylum under international law whereas the former refers to those whose
refugee status has not yet been determined under South African law. The effect
of this principle means that a state is obliged to provide every person with an
opportunity to at least apply for asylum including those who have entered a
country unlawfully.
The conflict between the Immigration Act and the
Refugees Act
Because
Ruta entered the country illegally, he fell within the definition of an illegal
foreigner in the Immigration Act who is liable for deportation. However, the
principle of non-refoulement emphasises the need to give foreign nationals the
opportunity to apply for asylum. The court had to decide how to resolve this
tension between the Immigration Act and the Refugees Act.
The
Minister of Home Affairs argued that only foreign nationals who enter South
Africa lawfully and obtain an asylum transit visa at the border may apply for
asylum. He argued that anyone else should be regarded as an illegal foreigner
who is liable for deportation. The Minister’s view was that the Refugees Act
has no bearing on Ruta’s case.
However,
the court rejected the Minister’s argument for several reasons. First, it
pointed out that the Minister’s argument was based on a flawed premise: namely,
that allowing Ruta to apply for asylum meant that South Africa’s borders would
be rendered porous enabling all and sundry to cross the border at whim.
But, the
court found that the Refugees Act does not undermine South Africa’s sovereignty
or national security in any way. To the contrary the Refugees Act only extends
protection to bona fide refugees and allows fraudulent or dishonest
applications to be rejected. Also, it enables the Minister to withdraw a person’s
refugee status in some circumstances. The court said it was clear that the
Refugees Act takes both a compassionate and pragmatic approach to how refugees
should be accommodated while respecting national sovereignty.
The court
also pointed out that it was clear from the detailed provisions of the Refugees
Act that it is the only piece of legislation that determines who may apply for
asylum and how an application for asylum should be made. All of this is absent
from the Immigration Act. The court found that the Immigration Act and Refugees
Act should be read in harmony.
But there
were also other reasons why the approach adopted by the Minister should be
rejected. The Minister’s view ignores the harsh reality that asylum seekers in
Southern Africa and elsewhere face, the court said. Many people are displaced
and find themselves fleeing terrible circumstances.
The
Minister’s argument that people in Ruta’s position should merely apply for
their deportation to be set aside was misplaced, the court said. The court
pointed out that the Minister’s approach fails to recognise that asylum seekers
are a vulnerable group who do not have access to the information or resources
which would be required to challenge their deportation in court.
The court
found that all of this means that a person who has delayed to apply for asylum
is still entitled to apply for asylum. This did not mean that delay was
irrelevant, the court said. Delay can, for example, be used to determine the
authenticity of an asylum seeker’s claim to asylum. But this determination must
be left to a Refugee Status Determination Officer to make.
Lastly,
the court found that Ruta’s conviction for traffic offences did not bar him
from applying for asylum. This was because the prohibition for applying for
asylum if one has been convicted of an offence only applied to offences
committed outside of South Africa.
Why this case is important
This case
emphasises that South Africa has an obligation under international law to
provide every person who enters its border with an opportunity to apply for
asylum. The court has taken a compassionate approach to the situation of many
asylum seekers who for various reasons are unable to enter the country
lawfully.
The case
also prevents undue delay being used as a reason to reject an application for
asylum.
Taken
together, these two findings acknowledge that asylum seekers face difficult
circumstance. They are often fleeing from gross violations of their human
rights. It is hoped that this compassionate approach to immigration will be be
adopted by Home Affairs.
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