The Western Cape High Court has halted the Department of Home Affairs’ plans to deport asylum seekers pending the outcome of a court application to declare such deportations invalid and unconstitutional.
The application was brought by human rights organisation the Scalabrini Centre of Cape Town in its “own interest and in the interest of those asylum seekers who are unable to do so”.
Scalabrini’s attorney, James Chapman, submitted to the court through an affidavit that asylum seekers who wished to approach a Refugee Reception Office (‘RRO’) to apply for asylum must first obtain a so-called appointment slip to do so.
This process is not regulated by law and, according to Chapman, requires the asylum seeker to return in six to eight months.
When, eventually, the asylum seeker returns and is granted access to the RRO, the first interview they receive is held by immigration officers.
According to Chapman, the interview is limited to questions of condonation and procedure and the immigration officers do not apply their minds to the fundamental question of what persecution the asylum seeker will face if returned to their country of origin, according to court paper.
After the immigration officers find that an asylum seeker has failed his or her interview, the asylum seeker is arrested, detained, and brought before a court to initiate the deportation process.
“Chapman testified that although the courts may carry out their own assessment of whether the asylum seeker has shown ‘good cause’, in the vast majority of cases the courts confirm the adverse decisions of the immigration officers (typically without providing written judgments)...
“In sum, the Scalabrini submit that the effect of the challenged provisions is that almost all new asylum seekers attending on RROs are refused the right to apply for asylum and are either arrested for deportation or are ordered to depart South Africa.
“Almost no new asylum applicants are, in fact, attending on RROs, since they have become aware that such attendance amounts, in practice, to being expelled from South Africa,” said acting Judge Brendan Manca in his judgment. He said the Department of Home Affairs’ responding affidavit “did not challenge any of the facts put up by the Scalabrini in their founding affidavit. They did complain that the facts were allegedly ‘hypothetical’.”
The DHA had proposed a settlement of the interim relief on the basis that they would “issue an instruction to all relevant officials that they must not initiate any process to arrest and/or deport any foreign national present in the Republic in the event that such foreign national has indicated an intention to make an application for asylum”.
Scalabrini rejected this settlement.
Acting Judge Manca said his decision was to make an interim order “interdicting the deportation of foreign nationals who evince an intention to make application for asylum until such time as their asylum application has been decided on its merits”.
He also wrapped all parties over the knuckles for the manner they had conducted litigation in this matter, alluding to burdening the court with lengthy annexures irrelevant to the interim relief sought as well as DHA’s failure to adhere to a court order.
“In summary, the manner in which the litigation has thus far been conducted leaves much to be desired. The disregard for the rules relating to the contents of affidavits in motion proceedings displays a lack of discipline in the preparation thereof,” the acting judge said.
Cape Times