On 22 April 2021, the Western Cape High Court dismissed, with costs, an application for leave to appeal sought by the Department of Home Affairs against the judgment handed down on 20 November 2020suspending the operation of provisions of the Refugees Act, 1998 and the Regulations until the constitutional challenge to the provisions has been finally determined. The suspended provisions are commonly referred to as the ‘abandonment provisions’.
The Scalabrini Centre of Cape Town, represented by Norton Rose Fulbright’s Public Interest Team and are of the view that the abandonment provisions are unconstitutional and contrary to international law as they allow for the arrest, detention and deportation of asylum seekers to countries where they may face grievous human rights violations including death, torture and various other forms of persecution.
The suspended provisions authorised deportation of an asylum seekers in circumstances where they fail to renew their asylum visa timeously within one month of its expiry, and the Department of Home Affairs (the Standing Committee) is not satisfied that a “compelling reason” existed for such non-compliance, such as hospitalisation. It should be borne in mind that a failure to renew asylum seeker visas timeously in person may be through no fault of the asylum seeker and is frequently due to administrative failures, long queues, limited points of access, archaic renewal processes, corruption as well as socio-economic factors.
These abandonment provisions are deeply problematic as they create the possibility of bona fide refugees being returned home to face torture and or death, as a result of administrative non-compliance.
Furthermore, they leave asylum seekers undocumented for a period , thus leaving them susceptible to arrest and without proper access to health care, employment, education and related services.
The abandonment provisions will remain inoperative until their constitutionality has been tested.
The hearing regarding the constitutionality of the abandonment provisions has not yet been set down for hearing.
*This article was co-authored by Heidi Davis, Candidate Attorney