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Emigration and immigration

Western Cape High Court Declares Asylum Seeker Detention Unconstitutional

Strategic Insights

— 1 min read

The Western Cape High Court has delivered a significant judgment, declaring the detention of asylum seekers unconstitutional after being challenged by human rights lawyers and the Scalabrini Centre. The court has also declared several provisions of the Refugees Act and its accompanying regulations invalid, which compromised refugee protection. The Scalabrini Centre and Lawyers for Human Rights (LHR) brought the matter to court, arguing that the practice of arresting and detaining new asylum seekers based on preliminary interviews conducted by immigration officials contravened the principle of non-refoulement. This principle prohibits the return of individuals to places where they face persecution or serious harm.

Key Takeaways:

  • The Western Cape High Court has declared the detention of asylum seekers unconstitutional, declaring several provisions of the Refugees Act and its accompanying regulations invalid.
  • The court recognized that the challenged legal provisions, which formed the basis for the arrest, detention, and denial of access to the asylum system for new applicants, are contrary to the Constitution.
  • The Scalabrini Centre and LHR challenged the unlawful practice of arresting and detaining new asylum seekers based on preliminary interviews conducted by immigration officials.
  • The court was told that newcomer asylum seekers cannot be penalised for the way they entered and remained in South Africa until their claims are finalised.
  • Nabeelah Mia, the head of LHR's Penal Reform and Detention Monitoring Programme, urged the state to respect the right of asylum seekers to access the asylum system and not send people back to situations where they will be harmed.
  • The court declared invalid the sections of the Act that excluded people from refugee protection on procedural grounds, without considering the merits of their claims.
  • The declaration of invalidity must now be referred to the Constitutional Court for confirmation.
  • The interim interdict granted in September last year, which prevented the deportation of individuals who had indicated an intention to apply for asylum, has been discharged, lifting the temporary protection against deportation.

Statistics:

  • The court recognized that the challenged legal provisions are contrary to the Constitution.
  • 3 judges presided over the court case.
  • The Scalabrini Centre and LHR brought the matter to court.
  • 1 interim interdict granted in September last year has been discharged.

Sources:

  • Scalabrini Centre
  • Lawyers for Human Rights (LHR)
  • Western Cape High Court

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