The Department of Home Affairs is drafting a bill to remedy constitutional defects in the Refugees Act.
•    The Department of Home Affairs will present a legislative amendment to Parliament by March to address a Constitutional Court ruling that parts of the Refugee Act are unconstitutional for denying asylum seekers' rights.
•    The Constitutional Court confirmed a ruling that certain subsections of the Refugee Act and its regulations are inconsistent with the Constitution, following an application by the Scalabrini Centre.
•    The apex court also found sections of the Immigration Act unconstitutional last December, and the committee expects a similar briefing from the department about how it would address this.

A legislative amendment to give effect to a Constitutional Court ruling that sections of the Refugee Act are unconstitutional by denying asylum seekers' rights will be put before Parliament by March, the Department of Home Affairs has said.
On Tuesday, the department briefed the Portfolio Committee on Home Affairs on how it would respond to the ruling.
Last December, the Constitutional Court confirmed the Western Cape High Court's ruling, delivered by Deputy Judge 

President Patricia Goliath.
The Scalabrini Centre applied to the High Court for a declaratory order that subsections and the Regulations of the Refugee Act are inconsistent with the Constitution and invalid.
They argued the minister of home affairs - at the time it was Aaron Motsoaledi - the director-general of the Department of Home Affairs and the chairperson of the department's Standing Committee for Refugee Affairs created a system whereby asylum seekers, who failed to renew their visas within one month of the date of expiry, were deemed to have abandoned their applications for asylum unless they could satisfy the standing committee there were compelling reasons for their failure to renew their visas timeously.

They also argued this was inconsistent with international law, the Constitution and Refugees Act's principle of non-refoulement, meaning "one fleeing persecution or threats to 'his or her life, physical safety or freedom' should not be made to return to the country inflicting it".
Scalabrini also contended the impugned subsections were irrational and arbitrary and, therefore, unconstitutional, serving no legitimate government purpose in that they disqualified asylum seekers from the very system designed to protect them.

The courts agreed.
At a meeting last month, parliamentary legal services advised the committee it should invite Home Affairs Minister Leon Schreiber to brief the committee on what steps the department proposed to take to address the judgment.
The department notified the committee it is busy drafting the Refugees Amendment Bill, which is currently being consulted among the department's different branches.

The draft bill will then be submitted to the department's executive committee for approval to submit to Schreiber.
The department does not believe that it must submit the bill for public comment, as it is mandated by the Constitutional Court. It will also request the Presidency to waive a Socio-Economic Impact Assessment.

The department will request the Office of the Chief State Law Advisor to certify the bill, before it goes through the normal Cabinet process. The department was confident it would introduce the bill to Parliament by the end of March.
The Refugees Act was not the only immigration law to be found to be unconstitutional by the apex court last December.
The court found it is unconstitutional that the Immigration Act requires parents in South Africa on spousal visas to leave the country to reapply for a visa when theirs expire due to an end to their spousal relationship.

The court suspended the order of invalidity for 24 months, but ordered parents would be allowed to stay in South Africa while they apply for their new visas. If the legislation is not amended by the deadline, that provision would be read into the law.
Parliament's legal services advised the committee it would be preferable the legislation be amended to avoid a situation where the courts take over Parliament's legislative function.
Legal services also advised the department should brief the committee on how it intends to address the court ruling.