This blog was co-authored by: Anneline Coetsee, Candidate Attorney

The Constitutional Court held in December 2021 that, although the amendments to the Refugees Act, 1998 and its regulations imposed more onerous procedural requirements on asylum seekers, these requirements do not rob them persons of their right to apply for asylum, even if there had been significant delay.

In terms of sections 32 and 34 of the Immigration Act, 2002, persons who are in South Africa illegally may be arrested and detained until they are deported. When applied to asylum seekers, this could violate the well-defined principle of non-refoulement. This principle prohibits the return of an asylum seeker or refugee to a country where they may face persecution.

In applying the pre-amendment Refugees Act, the Constitutional Court in Ruta expressed two important principles. The first, that once an illegal immigrant expresses the intention to apply for asylum they must be afforded the opportunity to do so. The second, that the extent of the delay in doing so does not bar the individual from exercising that right.

Under the newly amended Act, asylum seekers are required to apply for an asylum transit visa, valid for 5 days, before entering the Republic at a port of entry. Failing this, they are to be interviewed by an immigration officer in order to ascertain whether good reason exists for not being in possession of a transit visa or if there is good cause for any illegal entry before being entitled to apply for asylum.

Provisions relating to asylum seekers who have been apprehended for violation of immigration laws have since been repealed. This has led some courts to conclude that the principles in Ruta are no longer applicable, and that a delay in applying for asylum would bar an applicant from doing so. Such was the case in the Mr Abore’s high court application.

Mr Abore was in South Africa without the necessary documentation and was arrested in June 2020 in Kwa-Zulu Natal. He was sentenced to a period of 50 days or payment of a R1500 fine. The fine was paid but he was not released and he was moved to Lindela Repatriation Centre. Mr Abore applied for an interdict to prevent his deportation in March 2021, indicating that he intended to apply for asylum. The Johannesburg High Court recognised that Mr Abore had a right to the opportunity to apply for asylum, but it dismissed his application on the grounds that the principles in Ruta no longer applied and he had inexcusably delayed his asylum application.

The Constitutional Court examined the amended Act and new regulations and held that the principles in Ruta still apply, as those principles were based on section 2 of the Refugees Act. This section gives expression to the principle of non-refoulement and was untouched by the new amendments. The court held that the principles expressed in section 2 are paramount and stand above all laws which may contradict its application.

The court therefore cemented the importance of the principle of non-refoulement in our law. It declared Mr Abore’s detention unlawful and granted him leave to apply for asylum.

Abore v Minister of Home Affairs and Another [2021] ZACC 50