Pretoria - Sections of the Refugees Act which compelled asylum seekers to renew their visas one month before expiry date have been declared unconstitutional by the Western Cape High Court.
As things stood, those who did not apply to renew their visas within the one month provision, were considered by the Department of Home Affairs to have abandoned their asylum applications. The result was that they were deemed in the country to be illegally.
This left them open to be deported back to the countries of birth despite that in many cases they may face danger if sent home.
The court was told that in many cases it was not the fault of the asylum seekers that they could not renew their visas in time, as they often had to face long queues and other obstacles.
Home Affairs was earlier interdicted from implementing the relevant provisions of the Refugees Act as well as new regulations which make provision for asylum seekers to be deported if they were a month late in renewing their permits.
The provisional interdict was pending the outcome of the constitutional challenge before Deputy Judge President Patricia Goliath. Her order of constitutional invalidity is subjected to the final word spoken on the subject by the Constitutional Court.
The Scalabrini Centre of Cape Town, a non-profit organisation, turned to court to have the provisions overturned.
It was argued that the provisions infringed on asylum seekers’ rights to life, freedom and security.
The court was told that the provisions also prevented South Africa from fulfilling its international law obligations towards refugees, including the international law principle of non-refoulement.
In the past, only where an asylum seeker had a compelling reason – accompanied by proof – for delaying to renew a permit following a lapse (due to hospitalisation or imprisonment) could the department pardon the late renewal.
This left asylum seekers vulnerable in South Africa.
Apart from facing deportation, undocumented foreigners also struggle to access health care, employment and education.
Those with valid documents on the other hand, are permitted to work, study, and use social services such as health care, banking, insurance, and cell phone contracts.
The centre said the reality for asylum seekers was that they were frequently required to renew their asylum visas.
In the renewal process, they experienced extraordinary delays caused by the administrative failures of the department.
These are often exacerbated by socio-economic factors such as not having the means to travel to far away Refugee Reception Offices as frequently as is required and waiting in long queues.
They also face officials who refuse to renew visas without receiving bribes or the general inefficiency of the Refugee Reception Offices that are overworked but under-staffed.
The court was told that children who were listed as dependants on asylum applications were at the mercy of the bureaucratic processes governing the main applicant’s claim.
Their asylum seeker visas were also linked to the main applicant’s asylum seeker visa.
This meant that when the main applicant’s claim was deemed abandoned, all dependants’ applications would also be automatically deemed abandoned.
It was argued that children were therefore exposed to severe consequences of being undocumented and the further risk of refoulement, all due to actions and circumstances beyond their control.
Home Affairs, on the other hand, argued that the provisions under the spotlight were rational and justifiable in terms of the Constitution, primarily due to the fact that asylum seekers behaved in a recalcitrant manner and failed to renew their asylum visas.
Pretoria News