South African asylum seekers can finally breathe a sigh of relief after the Constitutional Court unanimously struck down a harmful provision in the Refugees Act. The “deemed abandonment” clause, which stripped them of essential rights for failing to renew visas within a month, has been declared unconstitutional, offering crucial protection to a vulnerable group often trapped in bureaucratic limbo.
The Scalabrini Centre of Cape Town, alongside the Consortium for Refugees and Migrants South Africa (CoRMSA), led the legal fight against these unjust provisions. Their arguments resonated with the court, which found that the “deemed abandonment” clause violated several fundamental rights. This included the denial of access to essential services like banking, education, and healthcare, leaving asylum seekers and their children exposed to constant anxieties like arrest, detention, and deportation.
“All this, simply because a visa has not been renewed,” remarked Acting Judge Ashton Schippers, highlighting the absurdity of the law’s consequences.
Initially, the government defended the provision, citing visa administration burdens and concerns about non-genuine asylum seekers. However, in a surprising turn of events, they conceded defeat before the Constitutional Court, acknowledging South Africa’s obligation to protect refugees and uphold the principle of non-refoulement – the act of not returning refugees to potential persecution.
Judge Schippers emphasized the “especially vulnerable” nature of refugees, calling for compassion and highlighting the disregard for their fundamental right to protection from refoulement inherent in the abandoned status. He exposed the potential for asylum seekers to be deported without any consideration of their claims, facing torture, imprisonment, and even death upon return.
Furthermore, the judge condemned the double penalty imposed by the provision, not only denying merit assessment but also barring any future asylum applications. CoRMSA presented evidence of 394 asylum seekers unfairly labeled “abandoned” and treated as illegal foreigners, exposing the human cost of this unjust law. Notably, children were found to be particularly vulnerable, denied education and basic services due to circumstances beyond their control.
Ultimately, the court declared the provisions irrational and arbitrary, serving no legitimate purpose. In a scathing rebuke, Judge Schippers criticized the government’s assumption that most asylum seekers were fraudulent, highlighting the core principle of refugee law: treating them as presumptive refugees until their claims are properly assessed. He revealed that the visa renewal issue, often caused by logistical problems and financial constraints, played no role in the backlog of applications and imposed no significant burden on the department.