People trying to seek asylum should not be deported, court hears

Supporters of the Scalabrini Centre of Cape Town chanted “Ubuntu knows no borders” during a picket outside the Western Cape High Court on Thursday. Photo: Daniel Steyn.

• Asylum seekers without valid visas face arrest and deportation, even if they have tried to apply for asylum.
• Scalabrini argues this is unconstitutional and violates the principle of non-refoulement.
• Home Affairs acknowledged that mistakes have been made but argues the law is sound.

Amendments made to the Refugees Act in 2023 are unconstitutional because they allow asylum seekers to be deported before they are able to access the asylum system. This puts them in danger and at risk of persecution. This was the main argument made by the Scalabrini Centre of Cape Town, an immigration rights organisation, in the Western Cape High Court before a full bench on Thursday.

The amendments, which Scalabrini wants the court to declare unconstitutional, allow for asylum seekers who have entered the country unlawfully and do not have a valid visa, to be denied full access to the asylum system after an initial “filtering” interview with an immigration officer.

During this interview, meant to filter out non-credible asylum applications, the Immigration Officer must consider whether the asylum seeker is able to explain why they are in the country unlawfully. The applicant must show “good cause” for breaking the country’s immigration law.

Scalabrini, represented by Lawyers for Human Rights, cited international and local case law to argue that no matter how late the person is in applying, or whether or not they have entered the country lawfully, they should be allowed to apply for asylum and should not be deported until their asylum applications are rejected on their full merits.

Amendments deny access to the system upon the sole discretion of an Immigration Officer, who is not trained or experienced in assessing the merits of an asylum application, and as a consequence South Africa risks sending people back to danger in their countries of origin, Scalabrini argued. This violates international law including the principle of non-refoulement.

Amnesty International, the Global Strategic Litigation Council for Refugee Rights, the International Detention Coalition and the Helen Suzman Foundation joined the application as amicus curiae (friends of the court). The organisations highlighted the multiple international treaties and instruments South Africa needs to honour. The Helen Suzman Foundation pointed out that the amended act puts children at risk, in that their status is tied to their parents.

The Department of Home Affairs argued that the amendments provided a necessary filtering process in the asylum system and in fact created a “safety valve” to protect the principle of non-refoulement.

“I would be gobsmacked if the Immigration Officer does not take into account the full basket of factors,” said Advocate Norman Arendse, appearing for the government.

Judge Lister Nuku asked Arendse if someone who does not pass the first interview can still apply. Arendse said they could. His reply drew audible murmurs of disagreement from the full gallery at the back of the court, packed with asylum seekers and refugees.

Scalabrini cited several cases of Ethiopian and Palestinian asylum seekers who have been detained for being in the country unlawfully after the first interview, denied access to the asylum system, and now face deportation.

Deportation of asylum seekers cannot be used as a penalty or punishment for people who are in the country unlawfully, Scalabrini says.

Arendse admitted that there are cases where Immigration Officers have made the wrong call. But advocate David Borgström, also appearing for the government, said that this does not mean the regulations are unconstitutional.

“Attack the implementation, not the regulations,” Borgström said.

The matter heard on Thursday was part B of Scalabrini’s application. Part A was heard in August 2024. That application sought an urgent interdict against the arrest and deportation of asylum seekers, including people who indicate they want to apply even if they have not yet done so. In September, the court granted an interdict against deportation but not against arrests.

Because of the interdict, the Department of Home Affairs effectively shut off all access to the asylum system for new applicants. But arrests of people who want to seek asylum but who do not have valid visas have continued. Because the government is interdicted from deporting asylum seekers, thousands of people are in prison.

Judge Judith Cloete said she was concerned that making an order setting aside the amendments would have unintended consequences for the government.

Cloete asked Arendse and his team to advise what relief would be appropriate and feasible, should the court rule in Scalabrini’s favour.

“You may have a better understanding of the administration at Home Affairs,” Cloete said.

Judgment was reserved.

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