Press Release: The Helen Suzman Foundation Appeals To The Minister Of Home Affairs On Recent Changes To The Refugees Act And Regulations

Though progressive in some respects, the amended Act and Regulations violate several provisions of the Bill of Rights, as set out in the Constitution, as well as South Africa’s obligations under international law.

Some of the issues addressed in the letter are outlined here.

Firstly, the Constitution of South Africa protects everyone in South Africa’s right to freedom of expression, assembly, demonstration, picket and petition. These rights are not limited to citizens. In addition, South Africa has ratified the 1951 UN Refugee Convention, the cornerstone of which is the principle of non-refoulement – no asylum seeker or refugee can be forcibly returned to a country where they have a well-founded fear of persecution. The UN Refugee Convention permits an exception to this rule only in the case of there being reasonable grounds for regarding a refugee as a danger to national security. However, the amended legislation allows for the exclusion of asylum seekers and refugees from refugee status if they have taken part in political activity during their sojourn in South Africa, and makes them subject to refoulement. This contravenes both the Constitution and South Africa’s international obligations.

Secondly, the amended legislation prevents defined categories of asylum seekers from participating in work required to meet their basic needs. Only asylum seekers found ‘unable to sustain themselves’ (with or without support from family, friends or an organisation) for the arbitrary period of four months, may acquire the right to work. South Africa does not have refugee camps, nor does it provide asylum seekers with grants or the equivalent support. The amended legislation is therefore likely to contribute to poverty, constituting a gross violation of the constitutional right of everyone in South Africa to human dignity.

Thirdly, the amended legislation allows the Minister to deport an asylum seeker or refugee on the basis of “national security”. The Regulations require such a person to file an application for judicial review within 48 hours from detention. This is impossible in practice. In the event of a successful judicial review of a deportation order, the Regulations compel the Constitutional Court to ‘confirm’ the High Court order ‘within two weeks’, failing which the High Court order lapses. There is no reason to require a Constitutional Court confirmation of a High Court order.  Moreover, a person’s rights cannot be affected as a result of an inability of the judicial process to conform with timelines (whether reasonable or not), which are outside of the control of the individual. These provisions violate court procedures, the separation of powers, and everyone’s constitutional right to just administrative action.

Fourthly, the amended legislation withdraws the refugee or asylum seeker status of children who entered South Africa as dependants of their parents. It is required that, on reaching the age of 18, former dependants re-apply for refugee status or an asylum seeker visa in order to remain in South Africa. If they do not re-apply within six months of turning 18, they may be deported. If their new application is rejected, they may also be deported. We do not understand why minors who were granted refugee status should lose their status on reaching majority. Such an approach has no basis in law or logic and subjects young people and their families to potential hardship and uncertainty.

In many respects, the new refugee legislation exacerbates the issues that it seeks to address. It is common knowledge that South Africa’s asylum system suffers from inadequate resources. In complicating administrative processes by the new measures, and by introducing legislation that is clearly unconstitutional, the burden on the Department of Home Affairs is not being made any lighter. The legislation also provides for exclusions from and the withdrawal of refugee or asylum seeker status in defined circumstances, such as in the cases of a dependant reaching 18 or a refugee becoming involved in political activity. These exclusions effectively “un-document” foreigners in a way that is not only unlawful, but short sighted, contributing to the existing issue of undocumented migration.

The Helen Suzman Foundation urges the Minister to review and, where necessary, to amend the legislation to avoid these issues becoming the subject of protracted litigation. 

To see the HSF’s full letter to the Minister of Home Affairs, click here.

Enquiries:

Tove van Lennep
Researcher
tove@hsf.og.za

Anton van Dalsen
Legal Counsellor
anton@hsf.org.za