18 November 2020
LRC admitted as amicus curiae in court bid to halt deportation of refugees
Johannesburg — The Legal Resources Centre, at the request of the Court, has been admitted as amicus curiae in the matter of Rana and Another v Minister of Home Affairs and Others, to be heard before the Gauteng High Court in Johannesburg tomorrow. The two applicants seek an order interdicting the Department of Home Affairs (DHA) from deporting them pending the final determination of their status in terms of the Refugees Act.
The applicants are currently in detention, and the DHA contends that because the applicants did not notify the authorities of their intention to apply for asylum within the stipulated timeframe in the Refugees Amendment Act, the applicants are excluded from submitting an application for asylum in South Africa. Section 4 of the Refugees
Amendment Act and Regulations 7 and 8 of the Act, which came into effect on 1 January 2020, excludes an asylum seeker from refugee status if the person failed to;
report her intention of applying for asylum upon entering the Republic and at a designated port of entry;
and report to the Refugee Reception Office within five days after entry into the Republic and produce a valid asylum transit permit or any other visa issued in terms of the Immigration Act.
The DHA argues that the failure to comply with the new Refugees Act and amendments disqualifies an applicant for asylum from even making an application for asylum.
As a friend of the court, the LRC makes submissions based on South Africa’s international and domestic legal obligations and submits that the right to apply for asylum takes effect when the person enters the country. This right does not arise on the application for asylum by an asylum seeker, but immediately when they enter the country. The applicants entered the Republic before the Refugee Amendment Act and Regulations came into effect and their claim for asylum should be adjudicated under the old Refugees Act and Amendment. The LRC submits that even under the new refugee regime established by the Refugees Amendment Act, all persons, including the applicants, are entitled to apply for asylum and have the merits of their claim adjudicated by a Refugee Status Determination Officer.
The affirmation of the right to apply for asylum is of paramount importance, as an alternative interpretation can result in violating the principle of non-refoulment, and would be a serious breach of South Africa’s domestic and international legal obligations. Such an interpretation would be unconstitutional.
Issued by the Legal Resources Centre
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