By Akani Nkuna
The Constitutional Court has ruled that asylum seekers and their children cannot be denied access to South Africa’s asylum system solely because of procedural failures, declaring key provisions of the Refugees Act and Refugee Regulations unconstitutional.
In a unanimous judgment handed down on Wednesday, the apex court found that protection against persecution must take precedence over administrative technicalities, reaffirming the principle of non-refoulement, which prohibits the return of people to countries where they face persecution.
The ruling was welcomed by the Scalabrini Centre of Cape Town and the trustees of the organisation, the applicants in the matter, as well as the Helen Suzman Foundation and Amnesty International, which participated as amici curiae.
They described the judgment as “a victory for asylum seekers and children”.
In a statement issued by Deneys Reitz Attorneys, the applicants’ legal representatives, the organisations said that under the previous legal framework, asylum seekers who entered South Africa through unofficial border crossings or failed to report to a Refugee Reception Office within five days had to demonstrate “good cause” or “valid reasons” before being allowed to apply for asylum.
“Those who could not faced deportation without anyone considering whether their asylum claim had merit,” the statement said.
The court ordered the Minister of Home Affairs, the Director-General of Home Affairs, the Standing Committee for Refugee Affairs and the Refugee Appeals Authority of South Africa to pay the applicants’ legal costs, including the costs of two counsel.
The Scalabrini Centre challenged provisions of the Refugees Act and Refugee Regulations that required asylum seekers entering South Africa irregularly to prove “good cause” before they could apply for refugee status, arguing that the provisions unlawfully excluded applicants before the merits of their claims could be considered.
The Constitutional Court agreed, finding that procedural non-compliance cannot be used as a threshold requirement for accessing the asylum system or determining refugee status.
It held that requiring asylum seekers to prove “good cause” before different officials, without clear legal guidelines, created uncertainty and unfairness.
“Thus, the impugned provisions do not provide a ‘safety valve’, but rather a threshold requirement which must be successfully met before the merits of an illegal foreigner’s asylum application can be assessed,” the court said.
The court further found that the provisions unjustifiably limited the constitutional rights of children seeking asylum.
“The impugned provisions unjustifiably limit the constitutional rights of children who are illegal foreigners while living in South Africa, depriving them of their most basic rights,” the judgment said.
The court concluded that the challenged provisions violated the constitutional rights underpinning the principle of non-refoulement and undermined protections afforded to children and other asylum seekers.
It also criticised the respondents for making unsupported assertions about Afghan and Bangladeshi nationals, warning that the submissions risked appearing xenophobic or racially charged and could undermine refugee protections.
“In summary: sections 4(1)(f), 4(1)(h) and 4(1)(i) and section 21(1B) are unconstitutional and the High Court’s order must be confirmed,” the court said.
The Constitutional Court noted that the respondents had not sought an order suspending the declaration of invalidity or requested a reading-in remedy before the court confirmed the High Court’s ruling.
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