Protecting refugees: Non-refoulement principle and the Scalabrini Centre of Cape Town case

June 1st, 2024
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Picture source: Getty/iStock

By Mpho Titong and Sipho Manuel

 Section 22(12) and (13) of the Refugees Act 130 of 1998 were presented by the Refugees Amendment Act 11 of 2017, which came into force on 1 January 2020 (J Cassette, E Roos and AB Karjieker ‘Automatic abandonment of asylum application: An analysis of the Scalabrini Centre of Cape Town v Minister of Home Affairs judgment’ (www.cliffedekkerhofmeyr.com, accessed 5-5-2024)).

Section 22(12) and (13), Regulation 9 and Form 3 of the Refugees Regulations provide that asylum seekers who fail to (personally) renew their asylum visa within the period of 30 days on expiry of their asylum are considered to have abandoned their asylum application (Cassette et al (op cit)).

This creates a presumption of automatic abandonment of the application, in an instance where an asylum seeker has failed to renew their asylum within 30 days (Cassette et al (op cit)). Moreover, the provisions place asylum seekers who hold genuine claims at a disadvantage because their genuine claims may lead to further persecution as a result of being deported to where they are from (Cassette et al (op cit)). This perception gives rise to an analysis of the principle of non-refoulement, which provides against one being returned to a place where there is a possibility of facing persecution (Cassette et al (op cit)).

In Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others (Consortium for Refugees and Migrants in South Africa as Amicus Curiae) 2024 (4) BCLR 592 (CC), the Western Cape High Court found that the relevant provisions of the Act are inconsistent with the Constitution and further sought the Constitutional Court (CC) to confirm the order of invalidity (at para 1). In the judgment (where it confirms the invalidity declared by the High Court), the CC noted that, when read, the concerned sections of the Act mean that asylum seekers who fail to apply for the renewal of their asylum seeker visas are considered illegal foreigners for purposes of s 32 of the Immigration Act 13 of 2002 and they may not re-apply for asylum. In the light of the submissions made above, this research piece seeks to assess the principle of non-refoulement in terms of s 22(12) and 22(13) of the Refugees Act as read with Scalabrini Centre of Cape Town.

An analysis of the principle of non-refoulment

Section 2 of the Act gives birth to the principle of non-refoulment by asserting that no person may be refused entry into the South African Republic, extradited, expelled, or returned to another country if such return or refusal will subject such person to persecution or threaten his or her safety and security. This section basically affords non-South Africans a claim against the state.

The Convention Relating to the Status of Refugees (1951) defines a refugee as any person who, as a result of a well-founded fear of persecution, is outside his or her country of origin and fears the return to such country because of issues of race, religion, political opinion etcetera (R Kapindu ‘No Return to Persecution or Danger: Judicial Application of the Principle of Non-Refoulement in Refugee Law in South Africa and Malawi’ (2020) CCR 107). In this instance, refugee means protection (from harm), so a refugee is a person who desperately seeks protection from another state against his or her country of origin.

Kapindu submits that the idea of refugeehood is premised on the principle of surrogate protection, in instances where a country fails to promote and protect human rights and its citizens (Kapindu (op cit)). The author adds that the four major challenges that refugees encounter include –

  • gaining access into a state (in order to evade the difficulties of the country of origin);
  • safeguarding the right not to be returned to the harmful jurisdiction (non-refoulement);
  • arguing the entitlement to the refugee status in terms of the laws of the host state; and
  • the challenge of enjoying the basic human rights (that include the right to dignity, equality and life) of such host state (Kapindu (op cit) at 108).

Ultimately, it can be noted that refugees are vulnerable people.

The United Nations High Commissioner for Refugees went as far as submitting that the risk of non-refoulement can be curbed by efforts aimed at ensuring that the host country understands the fact that it has a legal obligation to protect refugees (Kapindu (op cit) at 109). The fact that refugees are people who flee dangers to seek protection from other countries creates an ethical obligation for the receiving countries to protect such refugee seekers.

Kapindu concedes that the non-refoulement principle applies erga omnes, hence the need to ensure that it is duly protected and enhanced by the international community (Kapindu (op cit) at 113). Additionally, the author submits that the principle is not only limited to refugees but every person who is likely to be exposed to danger when returned to his or her country of origin (Kapindu (op cit) at 113).

In Mohamed and Another v President of the Republic of South Africa and Others (Society for the Abolition of the Death Penalty in South Africa and Another Intervening) 2001 (3) SA 893 (CC), it was submitted that the non-refoulement principle ‘makes no distinction between expulsion, return or extradition of a person to another state to face an unacceptable form of punishment. All are prohibited, and the right of a state to deport an illegal alien is subject to that prohibition’ (Kapindu (op cit) at 115).

In Abdi and Another v Minister of Home Affairs and Others 2011 (3) SA 37 (SCA), it was held inter alia, that deporting a person to another country would amount to the subjection of such person to degrading and cruel punishment, which goes against the precepts of the Constitution.

Jurisprudence teaches us that a person who flees their country of origin because of fear of being persecuted, killed, or placed in inhumane situations, may raise the principle of non-refoulement as a defence against being returned to where they are from.

A legal analysis of Scalabrini Centre of Cape Town

During March 2020, the Scalabrini Centre of Cape Town and the Trustees of the Scalabrini Centre of Cape Town (the applicants) launched a two-part application at the Western Cape High Court (at para 5). In Part B, the applicants sought a declaratory order that the relevant provisions of the Act are inconsistent with the Constitution and, therefore, invalid (at para 5). In arguing for the order sought, the applicants submitted that the respondents had created a system wherein asylum seekers who have failed to renew their visas are deemed to have abandoned their asylum applications (at para 6). Additionally, the applicants contended that the sections violate the principle of non-refoulement in that they allow the returning of asylum seekers to places that are considered to pose threat to their lives, physical safety, freedom, and places that are likely to subject the asylum seekers to persecution (at para 7). In the court a quo, the respondents opposed the relief sought by arguing that the relevant sections did not violate the non-refoulment principle because they were justifiable under s 36 of the Constitution (at para 9). The respondents argued that the limitation relates to the backlog that is created by the large number of inactive applications that were made under s 22 of the Refugees Act. As a result of the backlog created, it was submitted that the Department of Home Affairs had some 737 315 inactive applications (at para 9). According to the Auditor General, the backlog referred to would take at least 68 years to deal with (at para 10).

The court held also that the impugned sections were introduced as a way to try and curb the backlog of inactive cases and also, to try and ensure that asylum seekers ‘pursue their applications’ to their end (at para 11). Moreover, reference was made to Abore v Minister of Home Affairs and Another 2022 (4) BCLR 387 (CC), where it was held that the principle of non-refoulement applies for as long as a claim for refugee status has not been rejected on a final basis, after following proper procedures. The court expressed that this means that an application for asylum cannot be deemed to have been abandoned for the failure to renew a visa (at para 12).

As stated previously, the court a quo found that the relevant provisions of the Act violate the non-refoulement principle because they allow the return of refugees to the place from where they fled – a place wherein they may face persecution, torture or death (at para 34).

The CC also noted that the presumption of abandonment of the asylum application violates the right to just administrative action because once the impugned sections are invoked, the application is ‘not considered, let alone determined’ (at para 40).

The mere fact that a visa has not been renewed results in the violation of a number of rights that define humanity. When an application has been abandoned for purposes of the Act, it means that the asylum seekers are treated like illegal foreigners, which results in detention, arrest, and deportation (the rights to personal liberty and life are consequently threatened) (at para 40). Refugeehood is, therefore, presented as a question of international human rights.

At para 47, the court determined that the impugned sections do not serve a legitimate government purpose because they are arbitrary and irrational and, therefore, ought to be ‘struck down as constitutionally bad’.

Conclusion

The High Court was correct in its finding that s 22(12) and (13) of the Act are inconsistent with the Constitution and, therefore, invalid. However, the court a quo went too far by ordering Parliament to amend part of the order in terms of
s 237 of the Constitution. This is because of the limitation created by the separation of powers (trias politica). The principle of non-refoulement serves as an international obligation, not only an obligation for the Republic of South Africa. Jurisprudence teaches us that refugee protection is of paramount importance because international law includes the regulation of human rights on an international scale. Failure by an asylum seeker to renew a visa or an application for asylum does not amount to an abandonment of same.

Mpho Titong LLB LLM LLM (NWU) is a legal intern at the Legal Practice Council in Mahikeng. Sipho Manuel LLB (NWU) is a Legal Consultant at the Road Accident Fund in Johannesburg.

 This article was first published in De Rebus in 2024 (June) DR 20.

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