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Related documents
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S A v Minister of Home Affairs and Another; S J v Minister of Home Affairs and Another; B I v Minister of Home Affairs and Another |
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URL |
https://lawlibrary.org.za/akn/za-gp/judgment/zagpjhc/2023/178/eng@2023-03-14 |
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Citations |
[2023] ZAGPJHC 178 (14 March 2023) |
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Country |
South Africa |
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Date of judgment |
14 March 2023 |
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Court |
High Court |
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Location |
Gauteng, Johannesburg |
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Court jurisdiction |
Appellate |
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Status |
Asylum seekers |
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Nationality/statelessness |
Nationality |
Identity documents |
Stateless |
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N/A |
N/A |
N/A |
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Reason for fleeing |
N/A |
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Migration corridor |
Countries of origin |
Country of transit |
Country of destination |
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N/A |
N/A |
South Africa |
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Return/Repatriation |
N/A |
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Keyword(s): |
Asylum seeker, illegal foreigner, asylum, asylum transit visa, asylum permit, non-refoulement, detention, administrative detention, imprisonment |
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Case type |
Appeal |
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Result |
Upheld |
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Flynote |
Protection of asylum seekers — the right to seek and enjoy asylum — application of the principle of non-refoulement during consideration of asylum claims. Illegal foreigners — immigration laws vs refugee protection laws — what triggers the application of the Refugee Act for illegal foreigners detained under section 34 of the Immigration Act? (an intention to apply for asylum vs a formal application for asylum) — lawfulness of detention under section 34 of the Immigration Act after the expression of intention to seek asylum by an illegal foreigner 2020 amendments to the Refugee Act and its Regulations — interpretation of sections 4 and 21 of the Refugee Act and Regulations 8(3) and (4) of the Regulations — authority of the State to continue detaining illegal foreigners, under section 34 of the Immigration Act, when they indicate an intention to seek asylum — Regulations 8(3) and (4): is the entitlement to apply for asylum in cases of illegal entry dependant upon good cause being shown? |
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Legislation and International Instruments |
Legislation
International instruments
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Cases cited as authority |
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Facts
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The court below had refused to order the release of three illegal foreigners (the Applicants), who were being held in detention according to section 34 of the Immigration Act and had expressed a desire to apply for asylum. This was an appeal against that judgment. The Court noted that the Applicants were released long ago, and the case was resolved in relation to their personal interests, but the matter was heard because public interest required the clarification of the effect of the 2020 amendments to the Refugees Act and its Regulations. Particularly, the Court needed to clarify whether the detention of illegal foreigners under the Immigration Act extinguishes when they indicate an intention to apply for asylum and the procedure for making an asylum application.
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Detention/alternative methods |
Detention |
Alternative method(s) |
N/A |
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Detention according to section 34 of the Immigration Act |
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Summary |
The court interpreted the right to seek and enjoy asylum in relation to asylum seekers who are in the country unlawfully as ‘illegal foreigners’.
The court dealt with the interplay of the Immigration Act and the Refugees Act. The court was guided by the decisions of the Constitutional Court in Ruta v Minister of Home Affairs, and Abore v Minister of Home Affairs and Another, which interpreted the application of the principle of non-refoulement before and after the 2020 amendments to the Refugees Act and its regulations. These decisions held, amongst other things, that the right to seek asylum goes beyond the procedural right to lodge an application for asylum, although this is an important component of the right. The decisions noted that the Immigration Act should be read in harmony with the Refugees Act. If an asylum seeker is in the country unlawfully as an ‘illegal foreigner’, they have the right to seek and enjoy asylum once they indicate an intention to apply for asylum. The right applies for as long as the claim to refugee status has not been rejected after a proper procedure. Section 2 of the Refugees Act captures the protection of refugees and asylum seekers under the principle of non-refoulement and should prevail when there is a conflict with other provision(s) in the Refugee Act or other laws.
The court interpreted the 2020 amendments and summed them as follows: The detention of ‘illegal foreigners’ under section 34 of the Immigration Act should cease when the application of the Refugee Act is triggered by the foreigner making an indication of an intention to apply for asylum, not by a formal application being submitted. Further, the enquiry into good cause referred to in Regulation 8(3) of the Refugee Regulations is not a precondition for making an application for asylum, and must be read as part of the overall enquiry to facilitate the application. Finally, the court declared Regulation 8(4) to be ultra vires (made without the necessary powers) because it introduced a requirement that could not be found in the Refugees Act. Regulation 8(4) sought to limit the right to seek asylum by empowering a judicial officer to require a foreigner who appears before court and indicates an intention to seek asylum to show good cause. Therefore, it conflicted with section 2 of the Refugees Act and must be ignored or read pro non scripto. |
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Decision/ Judgment |
The appeal was upheld, and the court ordered the respondents to bear the costs of the applicants, including the costs of two counsel where so employed. The costs ordered included the costs of the initial applications, the applications for leave to appeal, the application to waive security and the appeal. The costs were on the scale as between party and party. |
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Basis of the decision |
The court interpreted the 2020 amendments to the Refugees Act and Regulations according to section 2 of the Refugees Act, which captures the protection of refugees and asylum seekers under the principle of non-refoulement. The court was also guided by the decisions of the Constitutional Court in Ruta v Minister of Home Affairs, Abore v Minister of Home Affairs and Another. |
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Reported by Date |
Ghati Nyehita 17 March 2023 |
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Cited documents 11
Judgment
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Reported
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Reported
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Reported
Asylum seeker applications - effect of delay - relevance of criminal record in South Africa - overriding principle of non-refoulement Delay does not impede right to asylum - only the Refugee Status Determination Officer is authorised to consider application merits - Immigrant Act must be read in harmony with the Refugees Act and international law |
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Reported
Refugees Act 130 of 1998 and Immigration Act 13 of 2002 – enactments to be read together – appellant an asylum seeker issued with asylum transit permit in terms of s 23 of Immigration Act – asylum seeker permit issued in terms of s 22 of Refugees Act – whether detention of appellant lawful
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Reported
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Applications for asylum ─ structure and purpose of Refugees Act 130 of 1998 ─ South Africa’s obligations under international law ─ Refugee Reception Officer obliged to accept an application for asylum ─ for Refugee Status Determination Officer not court to decide whether applicant entitled to asylum ─ including whether application is unfounded ─ meaning of ‘encountered’ in Regulation 2(2) ─ once intention to apply for asylum is indicated asylum seeker entitled to protective provisions ─ manner in which proceedings in high court conducted criticised ─ unwarranted statements by judicial officer ─ warning against preconceived ideas ─ militating against rule of law and proper administration of justice
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Appellants granted refugee and asylum seeker status in South Africa prior to departing for Namibia without informing authorities – deported from that country to their country of origin via South African airport – held in Inadmissible Facility and refused entry by first and second respondents – entitled to be re-admitted to South Africa with retention of their former status – failure to allow appellants entry criticised . |
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Foreigner seeking asylum in South Africa – arrested when not in possession of an asylum transit permit or an asylum seeker permit – arrested as an illegal foreigner in terms of s 34(1), read with s 23(2) of the Immigration Act 13 of 2002 – claiming asylum and release from detention in terms of ss 2 and 21(4) of the Refugees Act 130 of 1998 – relationship between Immigration Act and Refugees Act – foreigner can rely on Refugees Act at any stage – delay in indicating a wish to apply for asylum not a ground for preventing such an application
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Act
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Citizenship and Immigration
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