People need to have access to the asylum system even if they don’t have a valid transport visa
The Refugee Act and some of its regulations declared unconstitutional that regulations allow asylum seekers who do not have a valid transport visa to “filter” asylum seekers who have been declared unconstitutional.
The Western Cape High Court has broken a section of the refugee law that allowed asylum seekers to be deported, even before they accessed the asylum system.
However, the court refused to issue a temporary block that would prevent the deportation of affected people, stating that asylum seekers must approach the court individually if they believe that asylum seekers have been illegally locked out of the system until the constitutional court considered the issue.
Read the judgment here.
The matter was brought to court by the Scalabrini Centre in Cape Town. It argued that amendments to laws and regulations, which came into effect in January 2020, would put refugees at risk of persecution as they could return to their country of origin without considering asylum applications.
The amendment allows asylum seekers who illegally enter the country’s transport visas and do not have a valid asylum monitoring visa after initial “filtering” interviews with immigration officers. Scalabrini wanted to declare this unconstitutionality to the court.
These officers had “sole discretion” to determine this unless “persuasive reasons” were presented to determine this, Scalaibrini argued.
This was the second part of Scalabrini’s lawsuit. In the first part, in August 2024, Scalabrini secured a temporary block to stop the deportation of asylum seekers. The second part was the main application to declare the section of the law unconstitutional in February at the Western Cape High Court before Judges Judith Krote, Lister Nuku and deputy Shami Konon.
During that hearing, it was revealed that since the grant of the blockage, the Ministry of Home Affairs had effectively blocked access to the asylum system for new applicants. However, the arrests of people who wanted asylum but did not have a valid visa continued, filling up the prisons with asylum seekers.
Writing for the court, Judge Judith Crote said during his initial application for blocking, the applicant relied on specific cases of how certain refugees were treated, but now relied on “an abstract constitutional challenge.”
“As we understand, the heart of the applicant’s complaints is if the foreigner does not have a valid five-day asylum transport visa (whether an illegal border intersection or whether it has expired).
“In other words, given the comprehensive principles of non-refunement, such individuals should not be mandated to satisfy bureaucratic officials with the “effective reason” requirement to exercise the rights of asylum seekers,” Judge Krote said.
Non-refement is a principle of international law that prohibits governments from sending people back to countries facing persecution or danger.
Government respondents, including the Minister and the Director-General of the Interior, opposed Scalabrini’s interpretation. They argued that rather than illegally steal foreigners in the country of their rights, the provision created a “safety valve,” so that such people would not be locked out as long as they could show valid and persuasive reasons.
However, Scabrini argued that that was the problem, requiring people to undergo so-called “safety valve” exercises before they can officially access the asylum system, and could be arrested and deported.
Scabrini said it was a “threshold” rather than a safety valve.
Judge Krote said, according to the law’s clear language, immigration officers should “see if there is a valid reason” as to why the applicant does not own a transport visa.
“It cannot be denied that a decision of this nature that is disadvantageous to illegal foreigners could be further than that in deportation,” Krote said.
She said the regulation guidance on “persuasive reasons” that she had no valid visa included hospitalization, institutionalization, or other persuasive reasons, but did not include the possibility that the parties involved could be persecuted if sent back to their home country.
This was in opposition to several international treaties South Africa had ratified since democracy.
The Helen Suzman Foundation (HSF), who was recognized along with other human rights groups as a friend of Court, correctly argued that the effectiveness of the clause was exacerbated by the harm of parents and deported children, Krote said.
“The first fundamental principle is that children are not merely appendages of individuals, but individuals’ correct bearers. Second, it can be justified that parents should be prohibited from applying for asylum due to procedural failures.
Turning to relief, Judge Krote said from a constitutional standpoint that courts making constitutional invalidity orders could grant temporary blockage or other temporary relief on pending confirmation by the Constitutional Court or for other reasons.
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Scalabrini had been seeking a temporary stop.
But Judge Krote said this would be far too wide and result in “stumping into Congress shoes indefinitely.”
“This won’t sit comfortably with us.”
She said the “unintended consequence” was the shutdown of the asylum system since the initial block was granted.
“We also took into consideration that constitutional issues are abstract issues. There is nothing pending, either through the findings of the Constitutional Court’s findings and pending confirmations, or otherwise, anything that prevents the affected individual from approaching the court with his or her rights.”
She said respondents highlighted many possible practical difficulties if another temporary block was found.
“We have taken a careful and careful approach because, as shown, the impact on hundreds of thousands of individuals and respondents in this country is potentially dangerous and too large.
“Therefore, we simply suspend the declaration of invalidity until the outcome of the Constitutional Court case is pending.”
The court slammed the relevant provisions as unconstitutional, exempts them from the interim block granted in August 2024, and orders government respondents to pay 80% of Scalabrini’s costs.
