Abandoned Asylum Seeker Status – What does it mean and what can I do
SA – Migration – 1 April 2022
Home Affairs implemented the Refugees Act and certain provisions of new regulations (both implemented on 1 January 2020), which sought to return asylum seekers back to their home country, simply for being a month late in renewing a visa where they could face detention without trial, rape, torture or death,
This had the effect that if you did not renew your asylum in 30 days under the new Act you could no longer pay a fine for being illegal and simply continue with your asylum . This is a huge problem so for example if you expired during lockdown you could in theory be deported as there was no provision for a fine .
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 face detention without trial, rape, torture or death, simply for being a month late in renewing a visa.
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 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 extent necessary, confirmed by the Constitutional Court.
’’The abandonment provisions meant 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. 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.
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