ConCourt clarifies act for asylum seekers

The Constitutional Court brought much needed clarity to the application of the new amendments to the Refugees Act in relation to asylum applications. The apex court ruled that refugees and asylum seekers can now apply for permits locally, and that they can stay in the country pending the status of their application for asylum.

Following his arrest, on 7 July 2020, in Eshowe, northern KwaZulu-Natal, Abore was convicted and sentenced by the local magistrate’s court to 50 days imprisonment with an option to pay a fine of R1 500 for entering the country unlawfully. Despite paying the fine, Abore served his prison sentence. The detention, which was supposed to end on 25 August 2020, continued beyond that date.

Aggrieved by this, Abore approached the high court in Johannesburg for an interdict to stop the department from deporting him while he lodged his asylum application. He also wanted the court to declare his detention unlawful. Instead, the court held that this principle had no force because of new amendments to the Refugees Act. For this reason, and because the fine receipt was not presented as evidence, the high court held Abore’s detention was lawful. The amendments to the Refugees Act came into effect on 1 January 2020. Since then, they have been the subject of debate and litigation. The provisions of the amendments and regulations have been criticised for being unfair and unjust.

Because of these amendments to the act, many refugees faced the prospect of being deported to dangerous places they had escaped, with their children condemned to statelessness. The high court deemed this incompatible with the Constitution and at odds with international law principles. The apex court then set aside the decision of the high court in Johannesburg, ruling that Abore is entitled to remain in South Africa until his status is determined. The department was given 14 days to take reasonable steps to give effect to Abore’s intention to apply for asylum in terms of the Refugees Amendment Act. which states that no one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm.

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