ConCourt upholds decision in favour of asylum seekers

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The Constitutional Court has upheld the Western Cape High Court’s declaration of invalidity on parts of the Refugees Act to the extent that asylum seekers who have not renewed their visa within one month of the date of expiry of the visa, are considered to have “abandoned” their applications.

The apex court concluded in a unanimous judgment on Tuesday (12 December 2023), among other things, that the impugned sections are arbitrary and do not serve a legitimate government purpose.

ConCourt upholds Refugees Act ruling:

The apex court has found that Home Affairs assumption that an asylum seeker has “abandoned” their application if they fail to renew their visa within one month of the date of the expiry of the visa (as stated in parts of the Refugees Act) violates the core principle of refugee law that asylum seekers must be treated as refugees until the merits of the claim have reached a final determination.

This comes after the Scalabrini Centre of Cape Town, a trust that assists migrant communities and displaced people approached the Constitutional Court for confirmation of the High Court order of invalidity.

Constitutional Court Justice, Steven Majiedt says, “The respondents do not oppose the confirmation of constitutional invalidity of the impugned provisions, they concede that there was a need to do away with the impugned provisions as a whole.”

Scalabrini argues that the said sections of the Act create a system in which the rights of asylum seekers, children included are not dependent on the merits of their claim to asylum or the fate which awaits them in their birth country, but rather on their ability to comply with the renewal of a visa thus violating the principle of non-refoulment under international law.

The court agrees.

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Justice Steven Majiedt continues, “Further the impugned provisions violate a number of constitutional rights, they violate the right to dignity by cutting asylum seekers off from essential services needed for a dignified life … They also expose asylum seekers and their children to a constant risk, of arrest, deportation in contravention of the rights to life and personal liberty, all this simply because a Visa has not been renewed.”

As a result, the court reached the following conclusion. “The court confirms the high court declaration of constitutional invalidity as the impugned subsections violate the principle of non-refoulement, infringe the right to dignity, unjustifiably limit the rights of children and are irrational and arbitrary & irrational.”

In addition, the Minister of Home Affairs was ordered to pay costs.

*Principle of non-refoulment – refers to an international law principle that guarantees that no one should be returned to a country where they would be faced with torture, inhumane treatment, harm etc.*

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