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Court halts deportation of foreign nationals indicating intent to apply for asylum, for now

Source: News 24, 16/09/2024

The Western Cape High Court has temporarily stopped the initiation of any process to deport a foreign national who has indicated an intent to apply for asylum, until their application has been finalised.
• The Western Cape High Court has temporarily halted the initiation of any process to deport a foreign national who has indicated an intent to apply for asylum, until their application has been finalised.
• The interim interdict will remain in place pending the outcome of the main court application brought by the Scalabrini Centre of Cape Town.
• The court is expected to hear that main challenge in February 2025.
The Western Cape High Court has issued an interim interdict stopping authorities from deporting a foreign national who has indicated an intention to seek asylum until their application has been determined on its merits.
The order, handed down by acting Judge Brendan Manca on Friday, was done in agreement with the minister and director-general of home affairs, the chief director of asylum seeker management, and the refugee appeals authority.
Foreign nationals are required to report to a refugee reception office and indicate their intent to apply for asylum within five days of entering South Africa.
The interim order does not interdict the arrest and detention of such individuals.
`The Constitutional Court made it plain that in regard thereto the criminal law must take its course,` said Manca in his judgment.
The interim order is in place pending the finalisation of a constitutional challenge to provisions of the Refugees Act and associated regulations brought by the Scalabrini Centre of Cape Town.
This challenge is set down on the roll for 27 February next year.
The Scalabrini Centre previously explained that since November 2023, new applicants for asylum have been subject to arrest, detention, and deportation without the opportunity to undergo a refugee status determination interview.
`This process effectively denies individuals access to the asylum system, leaving them vulnerable to deportation to their home countries, where they face persecution, violence, war, detention, or even death. Such actions are a direct violation of the principle of non-refoulement, the cornerstone of refugee protection,` it said.
`Arrests stem from preliminary interviews conducted by immigration officials, who assess whether applicants have good cause for failing to enter the country through a designated port of entry and obtain an asylum transit visa at the border. The majority of applicants are found lacking good cause, resulting in their arrest for deportation.`
Lawyers for Human Rights, which represents the centre, said the main application was challenging the `good cause` interview requirement for newcomer asylum seekers.
`We, in collaboration with the Scalabrini Centre of Cape Town, are still unpacking the contents of the full judgment and will share an explainer early next week,` it shared on its social media pages.

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