LUNATIC ASYLUM

SA’s legal protections for asylum-seekers are hard to beat — fortunately for those who fall foul of the government’s bumbling bureaucracy

Of all African countries, Uganda hosts the most refugees. About 1.5-million call the country home — at least for now — compared with about 267,000 refugees and asylum-seekers officially in

SA. But SA’s legal protections for refugees are hard to beat, whether you agree with the philosophy behind them or not. Two legal decisions, delivered in the closing moments of 2021, make this plain.

One, from the Constitutional Court on December 30, will affect many asylum-seekers who did not apply for refugee status immediately after arriving in SA, and who have been facing deportation as a result. This decision reaffirms the meaning of a crucial section of the law: asylum-seekers cannot be returned to a country where they face persecution.

The other, delivered on the same day by the high court in Joburg, illustrates a number of important, interrelated issues. It shows the chronically overwhelmed and inept department of home affairs hard at work, ensuring that the rights of asylum-seeker Shan Mashi were violated when he was ordered to leave the country without the proper hearing he is entitled to.

Sceptics who react angrily and mutter about “leeches on the local economy” should calm down, for this case illustrates quite the opposite.

Mashi, who claims his life was under threat in Pakistan, arrived in SA in 2012. He followed all the right steps, presenting himself to the SA authorities, where he asked to apply for asylum.

He was given a permit allowing him to study and work while his claims were investigated. He did both, and spotted a chance to put the technical skills he had learnt in Pakistan to good use.

Mashi began, as the court put it, to design and manufacture “unique pieces of furniture” that he then sold. Five years later, his business had grown so much that he registered it and completed the other formalities required by the department of trade & industry.

He applied for a temporary residence permit, using his “now growing business” to substantiate his application. He also met and married a local woman, who started running the business.

Their relationship did not work out, however, and they began to live separately, though they are still married.

In September 2021, immigration officials visited Mashi at his shop, saying they had been tipped off that he was no longer living with his wife, thereby — in their view — contravening his permit condition.

The officials would not engage with him as he tried to explain the situation and in October 2021, he was served with a letter giving him 14 days to leave SA.

Due process

The judge hearing the matter, Margaret Victor, said Mashi’s case had to be seen “through the prism of the constitution” and how it affects a proper interpretation of the Immigration Act.

“In this case the applicant has spent many years in [SA] contributing to the economy and running a business where he is able to provide for his wife and also for his own commitments to others, including workers,” Victor noted.

However, she said, he had not been given a chance to activate the legal process he was entitled to: he was not allowed a proper hearing and the officials who came to his business “refused to engage with him in a meaningful way”, forcing him to approach the court for help.

Victor said any decision on Mashi’s future requires two things: it has to be “rational”, and any process leading to his deportation or notice to leave the country “must also be fair and reasonable”.

However, as things stood when Mashi brought his legal action, neither requirement had been satisfied. He was thus entitled to pursue the full legal process he was entitled to before he could be ordered to leave the country.

Mashi had not been given a chance to activate the legal process he was entitled to