High court suspends deportation measures against asylum seekers

The department of home affairs has been interdicted from implementing laws which sought to return asylum seekers to their home countries if they were 30 days late in renewing a permit or visa. The interdict, handed down by Judge Elizabeth Baartman in the Western Cape High Court this week, has been hailed as a victory for asylum seekers in SA.

The Scalabrini Centre in Cape Town and the Consortium for Refugees and Migrants in SA (admitted as a friend of the court), in an urgent application argued that provisions of the Refugees Act and new Regulations — both implemented on 1 January 2020 — left many asylum seekers vulnerable to being deported to countries where they face persecution or threats to their lives.

These provisions are referred to as “abandonment provisions” which state a visa/permit must be deemed abandoned if it is not renewed within one month of it expiring.

If asylum seekers do not renew their permits in time, their asylum applications are deemed to be abandoned.

Those with valid or undecided claims for asylum are then arrested and deported, unless they have “compelling reasons” why they could not renew their permit following the lapse. The committee dealing with these representations does not inquire into the reasons relied upon for asylum.

Scalabrini, in its argument, said this went against the principle of the right of non-return, enshrined in the Act. The Act states that no persons may be refused entry or be expelled from SA if they are compelled to return to a country where they may be subjected to persecution or physical threat.

Scalabrini and other refugee protection organisations lobbied against the new provisions before they were enacted. The issue came to head in March 2020 when Home Affairs circulated a power-point presentation for a parliamentary briefing (later cancelled because of Covid-19) showing that it had already dealt with 394 cases of abandonment.

During the hearing, Home Affairs tried unsuccessfully to suppress several affidavits detailing the personal stories of asylum seekers.

One, a matric learner born in SA to a Somalian couple, said her permit expired on 26 December 2019. The office was closed on that day and when she went the following day she was told: “Somalians are only assisted on Thursdays.”

When she went back in 2020, she was told her application was deemed abandoned.

A Kenyan mother said her daughter was in hospital with Guillain-Barre syndrome when the family’s permits expired.

A woman from Ethiopia said she couldn’t renew her permit because her son was ill. She tried several times to sort out the situation but the queues were always too long. She paid an “overstay fine” (as was provided for before January 2020) but was then advised this year that her application had been abandoned.

Judge Baartman said there was no merit to this and that the proof was in the affidavits and the department’s own powerpoint presentation. “The possibility of one person being returned in these circumstances would tip the balance of convenience in favour of granting interim relief,” said Baartman.

She said Home Affairs took the attitude that if harm eventuated, the asylum seeker only had him or herself to blame.

The interdict will operate until the outcome of a main application — which may take years to be finalised — to determine whether the laws are constitutional. —

She tried several times to sort out the situation but the queues were always too long