Huge relief for asylum seekers in SA
Applications are valid, even if they are delayed
THE Constitutional Court has found in favour of prospective asylum seekers, should they express an intention to apply for status at any time after arriving in the country.
The case related to whether a prospective asylum seeker should be allowed to apply for asylum, even if it’s a delayed application.
It also related to whether an asylum seeker, who has been convicted of a crime committed within South Africa, is barred from applying for asylum.
The applicant, Alex Ruta, was a Rwandan national who entered South Africa unlawfully in December 2014 and, in terms of the Immigration Act, he was an illegal foreigner.
In March 2016, Ruta was arrested in Pretoria for traffic violations and later convicted and imprisoned. While he was in prison, the Department of Home Affairs moved to deport Ruta back to Rwanda.
Ruta had countered the decision by applying formally for asylum under the Refugees Act, arguing that he would face death if returned to Rwanda.
The Minister of Home Affairs had refused to allow Ruta to lodge an application for asylum under the Refugees Act, arguing he had applied too late, and the department had continued with deportation proceedings.
With his deportation imminent, Ruta had applied to the High Court for an order interdicting his deportation and granting his release so he could apply for asylum.
The High Court granted him the orders, and the minister then appealed to the Supreme Court of Appeal.
The majority judgment of the Supreme Court of Appeal reversed the High Court judgment, and held that Ruta had failed to apply for asylum without delay, as both the Refugees Act and the Immigration Act require.
Before the Constitutional Court Ruta argued that immigration officials are obliged to allow him to apply for asylum once he expressed an intention to do so.
He urged that allowing immigration officials to bar him from applying under the Refugee Act was, contrary to that statute, a usurpation of the duties and powers of a refugee status determination officer.
In a unanimous judgment the Constitutional Court overturned the majority ruling of the Supreme Court of Appeal, and the Court held that the Refugees Act was clear: delay in itself does not disqualify an asylum application.