High Court: Asylum Seekers may stay

Refugee Visa Renewals

For months Refugees and Asylum Seekers have been in a state of limbo combined with the fear of extradition as none of the refugee officers has been back to work or any of the Refugee Reception Offices was open for business and critical abandonment provisions were suspended.

High Court Ruling

But this has come to a welcomed end as the High Court in the Western Cape ruled that the Refugee Reception Office has to – with immediate effect –  give them an opportunity to apply for Refugee and Asylum Seeker visa without the fear of being treated as an illegal foreigner and returned home


Abandonment Provisions

The Scalabrini Centre of Cape Town sought to prevent the short- and long-term operation of the abandonment provisions, as the provisions infringed on asylum seekers’ rights to life, freedom and security of person, dignity and equality; and prevented South Africa from fulfilling its international law obligations towards refugees, including the international law principle of non-refoulment. The suspended provisions are commonly referred to as the ’’abandonment provisions’’.

The suspension will operate until the constitutional attack against the impugned provisions has been adjudicated on by the Western Cape High Court and, to the extent necessary, confirmed by the Constitutional Court.

The abandonment provisions meant that in the event that an asylum seeker fails to renew their asylum visa timeously, their applications for asylum are deemed abandoned. Arrest and deportation would follow for individuals with valid and undecided claims for asylum. Only where an asylum seeker has a compelling reason (and proof thereof) for delaying to renew a permit following a lapse (such as hospitalisation or imprisonment), can the Department of Home Affairs pardon the late renewal.

This is deeply problematic as it means that refugees can be returned to face persecution, without ever having the substantive merits of their asylum application determined. It also leaves asylum seekers vulnerable in South Africa as essentially undocumented foreigners who will struggle to access health care, employment and education while they await the decision of whether their reason for late renewal meets the Department of Home Affairs uncommonly high threshold.

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