HSF Welcomes Refugees Act Judgment

The Helen Suzman Foundation (HSF) welcomes today's Western Cape High court judgment declaring certain provisions of the Refugee Act No. 30 of 1998 invalid and unconstitutional. The judgment follows an application by the Scalabrini Centre for Cape Town that sought an order declaring sections 4(1)(f), 4(1)(h), 4(1)(i), and 21(1B) of the Refugees Act No.130 1998, and regulations 8(1)(c)(i), 8(2), 8(3) and 8(4) of the Refugees Regulations 2019 unconstitutional because they risk sending applicant's for refugee status back to unsafe countries, before their applications have been properly determined.

HSF joined the matter as amicus curiae to make submissions on how the impugned provisions negatively impact on the rights of children of asylum seekers. In its judgment, the Court agreed with HSF, stating that “the impugned provisions are not capable of an interpretation that protects the best interests and dignity of children in their own right. In fact, children have no say in determination at all.” Moreover, the Court agreed with HSF’s position that the impugned provisions are not consistent with standards set out in the United Nations Convention on the Rights of the Children and the African Charter on the Rights and Welfare of the Child, which guarantee the right for the child to have his/her own best interests taken as a primary consideration.

HSF sees this judgment as not only a victory for the children of asylum seekers but more consistent with the spirit of the constitution in protecting the rights of a particularly vulnerable group of persons - children.

The judgment can be read here.