17 January 2019 By Ohene Yaw Ampofo-Anti
© 2019 GroundUp. This article is licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License.
Asylum delayed is not (necessarily) asylum denied
The Constitutional Court has ruled that if you delay applying for asylum, you don’t lose your right to do so. Archive photo: Ashraf Hendricks
If a foreign national arrives in South Africa unlawfully and takes as long as 15 months to apply for asylum, are they barred from doing so? Is the person liable for deportation or should they be given an opportunity to at least apply for asylum? The Constitutional Court recently considered these questions.
Alex Ruta, a Rwandan, arrived in South Africa in December 2014. He came via Zimbabwe and did not enter the country with a visa.
In March 2016, he was arrested for a traffic offence for which he was later convicted. Once he was detained, the Department of Home Affairs arranged for him to be deported. Ruta, however, opposed this by applying for asylum.
The High Court ruled in Ruta’s favour and found that entering South Africa unlawfully does not bar you from applying for asylum. But the Supreme Court of Appeal overturned the High Court’s decision. Applications for asylum must be made within a reasonable time, the court said. Because Ruta took 15 months to apply for asylum he was barred from doing so and liable for deportation.
By the time the matter came before the Constitutional Court, Ruta had already been released from detention due to the earlier High Court order. His application for asylum had been made and the outcome was pending.
Although the case was now moot (hypothetical), the Constitutional Court nevertheless decided to rule on the matter because of its immense public importance. Lawyers for Human Rights represented Ruta. The judgment by Justice Edwin Cameron was unanimous.
The court had to decide two related issues. First, how a conflict between the Immigration Act and the Refugees Act should be resolved. Second, what effect if any a delay has on an application for asylum.
The principle of non-refoulement
The court pointed out that the Refugees Act embodies the international human rights law principle of non-refoulement. This is the principle that no person may be returned to a country where they are at risk of their fundamental rights being violated. This is the foundational principle of refugee law which informs the interpretation of every provision of the Refugees Act.
Also, the principle has a bearing on how any dispute related to an asylum seeker or refugee should be resolved. This would mean that the principle even trumps provisions of the Immigration Act to the extent that they apply to refugees.
The court highlighted that the Refugees Act provides protection for both de facto and de jure refugees. The latter refers to those who have already been granted asylum under international law whereas the former refers to those whose refugee status has not yet been determined under South African law. The effect of this principle means that a state is obliged to provide every person with an opportunity to at least apply for asylum including those who have entered a country unlawfully.
The conflict between the Immigration Act and the Refugees Act
Because Ruta entered the country illegally, he fell within the definition of an illegal foreigner in the Immigration Act who is liable for deportation. However, the principle of non-refoulement emphasises the need to give foreign nationals the opportunity to apply for asylum. The court had to decide how to resolve this tension between the Immigration Act and the Refugees Act.
The Minister of Home Affairs argued that only foreign nationals who enter South Africa lawfully and obtain an asylum transit visa at the border may apply for asylum. He argued that anyone else should be regarded as an illegal foreigner who is liable for deportation. The Minister’s view was that the Refugees Act has no bearing on Ruta’s case.
However, the court rejected the Minister’s argument for several reasons. First, it pointed out that the Minister’s argument was based on a flawed premise: namely, that allowing Ruta to apply for asylum meant that South Africa’s borders would be rendered porous enabling all and sundry to cross the border at whim.
But, the court found that the Refugees Act does not undermine South Africa’s sovereignty or national security in any way. To the contrary the Refugees Act only extends protection to bona fide refugees and allows fraudulent or dishonest applications to be rejected. Also, it enables the Minister to withdraw a person’s refugee status in some circumstances. The court said it was clear that the Refugees Act takes both a compassionate and pragmatic approach to how refugees should be accommodated while respecting national sovereignty.
The court also pointed out that it was clear from the detailed provisions of the Refugees Act that it is the only piece of legislation that determines who may apply for asylum and how an application for asylum should be made. All of this is absent from the Immigration Act. The court found that the Immigration Act and Refugees Act should be read in harmony.
But there were also other reasons why the approach adopted by the Minister should be rejected. The Minister’s view ignores the harsh reality that asylum seekers in Southern Africa and elsewhere face, the court said. Many people are displaced and find themselves fleeing terrible circumstances.
The Minister’s argument that people in Ruta’s position should merely apply for their deportation to be set aside was misplaced, the court said. The court pointed out that the Minister’s approach fails to recognise that asylum seekers are a vulnerable group who do not have access to the information or resources which would be required to challenge their deportation in court.
The court found that all of this means that a person who has delayed to apply for asylum is still entitled to apply for asylum. This did not mean that delay was irrelevant, the court said. Delay can, for example, be used to determine the authenticity of an asylum seeker’s claim to asylum. But this determination must be left to a Refugee Status Determination Officer to make.
Lastly, the court found that Ruta’s conviction for traffic offences did not bar him from applying for asylum. This was because the prohibition for applying for asylum if one has been convicted of an offence only applied to offences committed outside of South Africa.
Why this case is important
This case emphasises that South Africa has an obligation under international law to provide every person who enters its border with an opportunity to apply for asylum. The court has taken a compassionate approach to the situation of many asylum seekers who for various reasons are unable to enter the country lawfully.
The case also prevents undue delay being used as a reason to reject an application for asylum.
Taken together, these two findings acknowledge that asylum seekers face difficult circumstance. They are often fleeing from gross violations of their human rights. It is hoped that this compassionate approach to immigration will be be adopted by Home Affairs.