18 September 2024
The Scalabrini Centre in Cape Town and other immigration rights activists welcomed a High Court ruling on Friday prohibiting the deportation of any foreign national who indicates their intention to apply for asylum in South Africa. Archive photo: Tariro Washinyira
Immigration rights activists have welcomed a Western Cape High Court ruling on Friday prohibiting Home Affairs officials from deporting any foreign national who has indicated their intention to apply for asylum under the Refugee Act in South Africa.
“Asylum seekers should try to apply for asylum and produce any proof of their efforts to apply. It is hoped that new asylum applicants will not be arrested but ultimately the court order requires a halting of deportations but does not go as far as interdicting arrests,” said James Chapman of the Scalabrini Centre, which brought the case.
The Centre sought interim relief pending the outcome of the second part of the court application challenging the constitutional validity of certain provisions of the Act, set to be heard on 27 February 2025.
The Minister of Home Affairs, the department’s director-general, chief director of Asylum Seeker Management, and the Standing Committee for Refugee Affairs were listed as respondents in the matter.
In its affidavit, Scalabrini had explained that asylum seekers who wish to apply for asylum must first obtain an appointment slip to do so. This process is not regulated by law, Chapman told the court in papers, and requires the asylum seeker to return in six to eight months to the Refugee Reception Office.
During this time they may be arrested.
When the asylum seeker does return, the first interview is held by immigration officers and the merits of the asylum seeker’s claim are not even considered; questions are limited to procedure.
Acting Judge Brendan Manca summarising the application said, “The Scalabrini [Centre] submit[s] that the effect of the challenged provisions is that almost all new asylum seekers attending on Refugee Reception Offices (RROs) are refused the right to apply for asylum and are either arrested for deportation or are ordered to depart South Africa. Almost no new asylum applicants are, in fact, attending on RROs, since they have become aware that such attendance amounts, in practice, to being expelled from South Africa.”
The judge granted the interim interdict.
Chapman told GroundUp this meant that anyone who has been or is in custody who has indicated the intent to apply for asylum, according to the interim relief granted, cannot be deported.
“We would hope and call for the release of such individuals so they may approach refugee reception offices to apply for asylum,” Chapman said.
Following the ruling, asylum seeker Tonderai Chirwa told GroundUp, “My life has been hanging in thin air because of the recent countrywide wave of arrests carried out by both immigration officers and SAPS.”
Chirwa moved to Gqeberha from Zimbabwe with his wife three years ago and is yet to successfully complete the application process for asylum. He currently works as a tree feller and bee catcher in Greenbushes. He said he visited the Gqeberha offices several times to apply and was turned away without being helped.
Chair of the Zimbabwe Migrants Support Network Chris Mapingure also welcomed the interim order. “We are glad that no one can be deported when they have an interest in seeking an asylum permit. We therefore encourage Home Affairs to adhere to the order.”
Mapingure urged asylum seekers to get affidavits from police, human rights lawyers, churches and non-profit organisations confirming that they want to seek asylum in the country.
Chairperson of the Somali Community in Eastern Cape Nasir Moalin said, “We’re absolutely pleased with the outcome. While [human rights lawyers] have successfully challenged Home Affairs, I believe there are lots of things that asylum seekers and refugees are not getting or are being denied access to. We need their support to challenge that.”
Chapman explained that their next step in the court will be to challenge the constitutionality of the provisions debarring access to new asylum applicants as well as the validity of certain sections of the Act.