Home Affairs has been interdicted from implementing certain provisions of the Refugees Act and new Regulations (both implemented on 1 January 2020), which sought to return asylum seekers back to their home country where they could be face detention without trial, rape, torture, or death, merely because he or she was a month late in renewing a visa.
On 30 November 2020, Judge Baartman handed down judgement in the Western Cape High Court, which suspended the operation of certain provisions of the Refugees Act, 1998 and the 2018 Regulations thereto (both of which came into effect on 1 January 2020). The suspended provisions are commonly referred to as the ‘abandonment provisions’.
The suspension will operate until the constitutional attack against the impugned provisions has been adjudicated on by the Western Cape High Court and, to the extend necessary, confirmed by the Constitutional Court.
The Scalabrini Centre of Cape Town, represented on a pro bono basis by Norton Rose Fulbright and Advocates David Simonsz and Nomonde Nyembe sought to prevent the short and long term operation of the abandonment provisions, as the provisions infringed on asylum seekers’ rights to life, freedom and security of person, dignity, and equality; and prevented South Africa from fulfilling its international law obligations towards refugees, including the international law principle of non-refoulement.
The abandonment provisions provided that in the event that an asylum seeker fails to renew their asylum visa timeously, their applications for asylum are deemed abandoned. Arrest and deportation would follow for individuals with valid and undecided claims for asylum; back to countries of origin where they could face death, torture, sexual violence, and other forms of persecution from which they originally fled, or to countries experiencing grave disturbances to the public order. Only where an asylum seeker has a compelling reason (and proof thereof) for delaying to renew a permit following a lapse (such as hospitalisation or imprisonment) can the Department of Home Affairs pardon the late renewal.
This is deeply problematic as it means that refugees can be returned to face persecution, without ever having the substantive merits of their asylum application determined. It also leaves asylum seekers vulnerable in South Africa as essentially undocumented foreigners who will struggle to access health care, employment and education while they await the decision of whether their reason for late renewal meets the Department of Home Affairs high threshold.
The reality for asylum seekers is that they are frequently required to renew their asylum visas. In the renewal process, they experience extraordinary delays caused by the administrative failures of the Department of Home Affairs. These are often exacerbated by socio-economic factors such as not having the means to travel to far away Refugee Reception Offices as frequently as is required, waiting in long queues at the Refugee Reception Offices, facing corruption from officials who refuse to renew visas without bribes, or the general inefficiency of the Refugee Reception Offices that are over-worked but under-staffed.
In light of these realities many asylum seekers fail to renew their visas for valid reasons. Judge Baartman delivered a powerful judgment, emphasising that the case does not involve imaginary victims – the suspended abandonment provisions affect real asylum seekers who could face serious human rights violations should the provisions continue to operate. She criticized the Department’s conduct in the case, which was characterised as regrettable and unhelpful.
The judgement will come as a relief to many asylum seekers who have been unable to renew their visas for valid reasons and will give them an opportunity to do so without the fear of being treated as an illegal foreigner and returned home. This includes many asylum seekers who may have been prevented from renewing their asylum documents prior to the pausing of services at Refugee Reception Offices during the national lockdown – a pause which is set to remain in effect until at least Lockdown and the State of National Disaster is uplifted .
Scalabrini Centre, represented by Norton Rose Fulbright, firmly believes the abandonment provisions are unconstitutional and persists in a challenge to this effect.
Sections of the refugee law now mean that asylum-seekers who's documentation expires for thirty days or more face arrest and deportation, as their claims would be considered 'abandoned'. These people – who have sought refuge and safety in South Africa – could be deported to danger or death in their countries of origin for no reason other than they were a month late in renewing a visa.
The case seeks to declare pertinent sections of South Africa's recently changed refugee law to be set aside and declared unconstitutional.
Abandonment of asylum claims
In January 2020, we expressed deep concern over the Refugee Amendment Act, which came into force on 1 January 2020. This Act came into force upon the signing and Gazetting of the Refugee Regulations. Several aspects of the new law undermine asylum seekers' and refugees' rights.
Of particular and urgent concern are the so-called 'abandonment clauses'. We are challenging the constitutionality of Sections 22(12) and (13) of the Refugee Amendment Act and Regulation 9 of the Refugee Regulations.
These sections of the Refugee Amendment Act and Regulations effectively mean that the claim of an asylum-seeker in South Africa 'must' be considered 'abandoned' if their asylum seeking visa expires for 30 days or more.
If there are no 'compelling reasons' around why an asylum seeker holds and expired permit, these persons would be treated as 'illegal foreigners' and risk facing arrest and deportation. The Refugee Amendment Act also prevents that person from re-applying for asylum in South Africa – which seems to run against international refugee law.
The difficulties of ensuring a valid asylum seeker visa
In the daily work of The Scalabrini Centre of Cape Town, we consult with many asylum-seekers who, despite their best efforts to extend their asylum seeker visas, are simply unable to do so. Remaining on a valid asylum seeker visa is no easy feat: Many asylum seekers face long journeys to Refugee Reception Offices (RRO) to apply for an extension of their permit.
Depending on their nationality, they may only approach a RRO on certain days. Should they manage to arrive on the right day, under-staffed Refugee Reception Offices result in long snaking queues. Not everyone is attended to. Asylum seeker visas are extended for anything between a month and six months, meaning the process described above must be undertaken on a regular basis.
The Department of Home Affairs has itself confirmed that the asylum process is subject to colossal administrative delays: the process of considering an asylum application takes, on average, more than 5 years.
Provisions run counter to South African constitution and international law
The 'abandonment' provisions of the Refugee Amendment Act run counter to the fundamental legal and constitutional basis of refugee law, namely the right of non-refoulement. This is a fundamental of international and national refugee law that prevents states from forcibly returning a person to a country or place where they would face reasonable risk of harm or death.
The provisions allow for a person with a valid asylum claim to be returned to their country of origin to face persecution merely because they have failed to meet a procedural requirement.
The consequences of this system in South Africa will be devastating. Thousands of people from across the continent, and the world, would be barred from asylum for no reason other than they were a month late in renewing a visa.
Our demand
The case is based on the requests that these Sections 22(12) and (13) of the Refugee Amendment Act and Regulation 9 of the Refugee Regulations are declared unconstitutional and invalid, and that they are set aside.
Trade bodies from across the aviation and travel industries in Britain are planning an industry day of action (#traveldayofaction) on June 23 to put pressure on the UK Government to support a safe return to international travel.
This is ahead of June 28, when the government will review both the traffic-light list and the requirements, measures and systems in place for international travel.
According to a statement on the UK travel industry association website, ABTA, the day of action will call on the UK Government to:
- Allow international travel to return safely
and in a risk-managed way by properly implementing the Global Travel Taskforce’s
plan.
- Bring forward a package of tailored financial support to recognise that the unlocking of international travel, and hence businesses’ ability to trade and generate income, will be much slower than first anticipated, and more gradual than for businesses in the domestic economy.
The day of action will involve an organised lobby at the Houses of Parliament – which will see MPs meet with a large number of their constituents at Westminster on a single day.
Ongoing lobbying
It will also be the culmination of intense lobbying and political engagement over the next few weeks. Activity ahead of the day included ABTA’s Mark Tanzer’s appearance at the Treasury Select Committee on Sunday (June 7) and the parliamentary debate on Thursday, June 10, which looks at support for the aviation, travel and tourism industries.
Organisers and supporters of the cross-industry day of action already include ABTA, Airlines UK, the Airport Operators Association, BAR UK, UKinbound, the Business Travel Association, Advantage Travel Partnership, TTNG, and the other 11 members of the Save Future Travel Coalition, with other industry organisations welcome to join.
The African Travel and Tourism Association (ATTA) is also involved in the action day as one of the 11 members of the Save Future Travel Coalition.
ATTA also continues to use its position on key travel boards to put pressure on the UK government to use the correct scientific information to allow countries in Africa to move from red to amber to green. ATTA CEO, Chris Mears, told Tourism Update: “This was discussed at our meeting on Friday with everything being confirmed yesterday (Monday, June 7) with more details being finalised in the coming days.
“We will be sharing information directly with the ATTA members as we receive it and will be setting up a group on our members’ waterhole in order to keep interested parties updated on this.”
According to Mears, ATTA also continues to use its position on key travel boards to put pressure on the UK government to use the correct scientific information to allow countries in Africa to move from red to amber to green. Proposed interventions include:
- A push for transparent criteria and communications on the traffic-light list and ongoing monitoring.
- Addressing the ‘totally unacceptable’ cost of PCR tests and the push to get the UK government to accept a Lateral Flow test and then only if PCR negative.
- COVID vaccination certificates for travel.
- Continued financial support such as furlough, tax and VAT concessions until such time as UK travel businesses can achieve positive cash flow from bookings.
Industry urged to get involved
The UK travel trade bodies are calling on all corners of the travel industry – every airline, airport, tour operator, travel agent, supplier and partner – to get involved and support the activities of the day.
“These next weeks will be critical for the travel industry. We have been working together since the start of the pandemic to make the sector’s case on what the industry needs to get through this crisis and return safely to international travel,” said Tanzer.
“We’re in a situation where the Government is curtailing overseas travel but isn’t providing tailored support for the travel industry. The longer this goes on, the more jobs, livelihoods and businesses are at risk.”
Tim Alderslade, Chief Executive of Airlines UK added: “The UK is falling behind other countries, including many of our competitors in Europe, when it comes to restarting our aviation and travel sectors. With the success of the vaccine roll-out, it is vital the Government takes steps to capitalise on the progress that has been made, otherwise we face doing severe long-term damage to the economy and the competitiveness of our world-leading aviation sector.”
The Republic of Ireland has said it will soon be allowing visa-free entry to South African visitors.
Earlier this year, in a bid to mitigate the spread of the new COVID-19 variants in that country, the Republic of Ireland revoked visa-free travel privileges to several high-risk nations including South Africa.
Having made significant progress in their vaccination campaigns and the arrival of the peak summer tourism season in Europe, several countries have begun to reopen their borders for tourism purposes.
While most of Europe is still off-limits to South African travellers, the Republic of Ireland will soon permit South Africans to travel to that country without the need to apply for a visa before departure.
Travelnews reports that the Embassy of Ireland in Pretoria has confirmed that South African passport holders shortly be able to enter that country without requiring a visa prior in advance.
QUARANTINE REQUIREMENT TO REMAIN
Since South Africa and other countries in the region including Botswana, Lesotho, and Zimbabwe are designated as Category 2 risk level countries, according to Ireland’s Department of Health, a 14-day mandatory hotel quarantine will apply to South Africans travelling to Ireland.
Quarantine accommodation must be pre-booked and prepaid before commencing travel to Ireland. These mandatory hotel quarantines are undertaken in designated quarantine facilities.
COVID-19 TEST REQUIRED FOR ENTRY
Travellers entering the Republic of Ireland also have to present a negative COVID-19 test result. Only COVID-19 PCR tests are accepted. These must have been obtained no more than 72 hours before arrival.
As there are no direct flights between South Africa and Ireland, South Africans wishing to travel to Ireland would need to travel via a third country. Qatar Airways, Ethiopian Airlines and KLM Royal Dutch Airlines allow South African nationals on their flights from South Africa.
A new campaign has been launched by the World Travel & Tourism Council (WTTC) calling on governments around the world to restart international travel and enable the world to ‘Reunite’ once again.
After more than a year of lockdowns around the world due to the COVID-19 pandemic, the new campaign will showcase the importance international travel has for individuals and businesses.
This new campaign comes after WTTC’s drive to responsibly rekindle the wanderlust of travellers through its recent 'Together in Travel' campaign, despite the multiple global challenges posed by the COVID-19 pandemic.
Virginia Messina, WTTC Senior Vice President, said: “For the past year WTTC has been hugely invested in advocating for the social and mental benefits of travel and tourism. Through this campaign, we are hoping to help kick start the recovery of our sector through a truly worthwhile experience: reuniting with those who matter most to us.
“With the immense pressures being faced by the global travel and tourism sector due to the current restrictions caused by the COVID-19 pandemic, it’s now more important than ever that we remind everyone, how travelling can make all the difference, not only to the world, but to us as individuals.”
Travel and tourism is one of the world’s largest and most important sectors, in which around 80% of all businesses are small and medium-sized enterprises (SMEs).
As a powerful driver for socio-economic development and job creation, the sector plays an important role in driving prosperity, empowering women, youth, and other societal groups.
It is also one of the most diverse sectors, employing people from all socio-economic backgrounds, regardless of age, gender or ethnicity, and includes 54% women and 30% youth.
The Ministry of Home Affairs (MHA) said on Friday that Indian visa or the stay stipulation period of foreign nationals stranded in the country due to the Covid-19:
The Ministry of Home Affairs (MHA) said on Friday that Indian visa or the stay stipulation period of foreign nationals stranded in the country due to the Covid-19 pandemic will be valid till August 31. Accordingly, these foreign nationals will not be required to submit any application to the FRRO/FRO concerned for the extension of their visa till that period or until further orders. Visa Extension for stranded Foreign Citizens Also Read - ISRO to Assist Development Projects in Northeast India
Through Space Technology The MHA said that due to the non-functioning of normal commercial flight operations on account of the pandemic since March 2020, a number of foreign nationals, who came to India prior to March 2020 on valid Indian visa, have got stranded in India. Keeping in view the difficulties being faced by such foreign nationals in getting their visas extended in India due to the lockdowns, the Ministry of Home Affairs (MHA) had issued an order on June 29, 2020, conveying that Indian visa or stay stipulation period of such foreign nationals expiring post June 30, 2020 shall be deemed to be valid until 30 more days from the date of resumption of normal international flight operations, on gratis basis. Also Read –
However, such foreign nationals have been applying for extension of their visas or stay stipulation period on a monthly basis. "The matter has now been reconsidered by the MHA in the light of non-resumption of normal commercial flight operations, and it has accordingly been decided that the Indian visa or stay stipulation period of such foreign nationals stranded in India will be considered as deemed to be valid till August 31, 2021 on gratis basis without levy of any overstay penalty," the MHA said.
Such foreign nationals may apply for exit permission to the FRRO/FRO concerned before exiting the country, which would be granted on gratis basis without levy of any overstay penalty. (IANS)