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Rights bodies challenge amendments to Refugees Act that cause asylum seekers to `suffer great prejudice`

Source: Samigration, 11/03/2025




`A number of human rights bodies are taking the Department of Home Affairs to court to stop the arrest of newcomer refugees at South African reception offices. (Photo: Leila Dougan) ``This case is fundamental to ensure that people are not returned to persecution, torture, violence or war,` said James Chapman, head of advocacy at the Scalabrini Centre. The Western Cape High Court has reserved judgment on a constitutional challenge by the Scalabrini Centre of Cape Town - an immigrant organisation - and Lawyers for Human Rights to amendments to the Refugees Act that are used by Home Affairs officials to arrest and deport asylum seekers.The court also extended an interdict that prohibits the department from deporting any foreign national in SA if the foreign national has indicated an intention to apply for asylum.The amendments to the Refugees Act that the court was asked to consider that persons who have ``committed an offence in relation to the fraudulent possession, acquisition or presentation of a South African identity card, passport, travel document, temporary residence visa or permanent residence permit`` can be excluded from applying for asylum.The amendments also exclude those who entered South Africa other than through a designated port of entry and failed to satisfy a refugee status determination officer that there were compelling reasons for such entry; and those who fail to report to the Refugee Reception Office within five days of entry into SA, even if they have a legal visa.``This [case] refers specifically to asylum seekers not entering the country through a designated port of entry and those who have not obtained a transit visa,`` said James Chapman, head of advocacy at the Scalabrini Centre. ``This case is fundamental to ensure that people are not returned to persecution, torture, violence or war.``According to papers before court supporting Scalabrini`s case, the practice of arresting and deporting asylum seekers without transit permits ``undermines the fundamental principles of both domestic and international human rights and refugee law``.From November 2023, new asylum seekers without a transit visa were arrested, detained and deported without an opportunity to undergo a refugee status determination interview. They are arrested after a preliminary interview by immigration officials who assess whether they have a good cause for failing to enter SA through a designated port of entry and obtain an asylum transit visa at the border.``Most applicants are found lacking good cause, resulting in their arrest for deportation. This process effectively denies individuals access to the asylum system, leaving them vulnerable to prolonged periods of detention and then deportation to their home countries, where they face persecution, violence, war, detention or even death. This is in direct violation of the principle of non-refoulement, the cornerstone of refugee protection,`` said Chapman.In 2023, the former minister of home affairs Dr Aaron Motsoaledi said that 91 transit visas had been issued in two years, during which time there were close to 10,000 applications for asylum.Non-refoulement is a legal principle prohibiting states from transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return to their home country, including persecution and torture.In February, Amnesty International, the Global Strategic Litigation Council for Refugee Rights, the International Detention Coalition and the Helen Suzman Foundation (HSF) joined the case.In papers before court, the HSF`s executive director, Naseema Fakir, argued that the law negatively affected the children of asylum seekers as they would either be returned to high-risk situations or be left behind when their parents were deported, leaving them stateless.The director-general of the Department of Home Affairs, Livhuwani Makhode, stated in papers before court that the application was misguided. He said the applicants cannot ``simply ignore the Immigration Act``.This Act states that a person who has an expired visa is an illegal foreigner and can be deported. This also applies to a person with no visa because they did not enter the country through an official port of entry.However, Chapman pointed out in his affidavit that ever since a provisional interdict was granted to stop the deportation of asylum seekers without valid transit visas, the system had been paralysed.He said the interdict did not require the department to accept new applications, so they just stopped doing so.``Asylum seekers are suffering great prejudice,`` he said.`


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