In a major victory for asylum seekers, the Constitutional Court has struck down provisions in the Refugee’s Act which render them to be illegally in the country if they have not renewed their visas within a month of it expiring.
As the law stands, asylum seekers who fail to personally renew their asylum seeker visas within one month of their visa’s date of expiry must be regarded as having “abandoned” their applications for asylum.
They may not re-apply for asylum and must be dealt with as illegal foreigners in terms of the Immigration Act.
They have called for the provisions to be reviewed based on the backlog of visa and asylum applications.
Minister of Home Affairs, Dr Aaron Motsoaledi, and his director-general, however, told the court that they dealt with at least 53 000 applications a year and were required to process more than 400 000 applications which had been lodged in a period of two years.
Refugees are therefore treated as illegal foreigners and are subjected to arrest, detention and deportation.
The application was brought via the Scalabrini Centre in Cape Town, which advocates for refugees.
The centre sought a declaratory order that the impugned subsections and the regulations are inconsistent with the Constitution and invalid; and an order reviewing and setting aside the regulations as unlawful and invalid.
In their attack on the subsections and regulations, the centre argued that the department 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.
This was unless they could satisfy the Standing Committee that there were compelling reasons for their failure to renew their visas timeously.
These visas are valid for a maximum period of six months and entitle asylum seekers to temporarily sojourn, and to work or study in the Republic, pending the determination of their application for asylum.
In practice, visas are extended multiple times before an asylum application is decided, which on average takes five years.
This system, the centre contended, is inconsistent with international law, the Constitution, and the objects of the Refugees Act. It argued that even if the failure was the asylum seeker’s fault, such harmful and inhumane consequences (to have to return to a country where they fear for their lives) could not be justified under the Constitution.
Home Affairs, on the other hand, justified the situation as it said the administration of visas and specifically, expired visas, placed a huge burden on the department’s officials. This is because a substantial number of applicants are not genuine asylum seekers and know that their applications for asylum will be rejected.
As a result, the Department has about 737 315 inactive visa applications under the Refugee Act. The department said these inactive cases disproportionately exceeded the number of active cases, created a massive backlog and resulted in delays in finalising asylum applications.
This backlog, according to the Auditor General, would take about 68 years to clear – excluding any new applications for asylum.
Acting judge Ashton Schippers, who wrote the unanimous judgment, said this was hardly surprising. He referred to another case, in which it was said: “South Africa is amongst the world’s countries most burdened by asylum seekers and refugees. That is part of our African history, and it is part of our African present.”
The Western Cape High Court earlier found that the impugned subsections constituted a violation of the principle of non-refoulement. These provisions permit the return of asylum seekers to the countries from which they fled, where they may face torture or death, simply because they are late in renewing a visa.
The impugned subsections also have an adverse impact on the rights of children, and cannot be cured by a bureaucratic review by the Standing Committee as to why asylum seekers failed to renew their visas.
The purpose of the impugned subsections, according to the department, is to motivate asylum seekers to attend refugee reception offices more regularly so as to reduce the backlog of asylum applications. This, the high court said, was a limitation of the rights to dignity, life and the rights of children, which was not justified under the Constitution.
Consequently, the court declared the impugned subsections and the regulations inconsistent with the Constitution and invalid.
As the matter concerned legislation and constitutional issues, the apex court now had to speak the last word on the matter.
Judge Schippers said refugees were, by definition, persons in flight from persecution or threats to their life, physical safety or freedom and other serious human rights abuses. He said they should not be forced to return to the country inflicting these harms.
They were an “especially vulnerable group” in our society and their plight called for compassion, he said.
The ConCourt found that the impugned subsections were directly at odds with this and the principle of non-refoulement. The court further found that the subsections also infringed the right to dignity and cut across other fundamental rights.
The impugned subsections were irrational and arbitrary and they served no legitimate government purpose, the ConCourt concluded.