Where it concerns issues relating to the protection of asylum seekers and refugees, the South African Constitution and international law (which includes customary international law) unequivocally promote, protect, and uphold the principle of non-refoulment(the prohibition against returning refugees to countries where they will face persecution or serious human rights violations) enshrined in article 33 of the UN’s 1951 Refugee Convention (which South Africa acceded to in 1996) and which is the central protection for refugees and asylum seekers, both in South Africa and internationally.
Article 31 of the Convention provides that a member state shall not impose penalties on asylum seekers/ refugees, “on account of their illegal entry or presence, coming directly from a territory where their life or freedom was threatened or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”
The Department of Home Affairs (Respondents) interprets Article 31 and the reference to ‘penalties’ to mean that asylum seekers or refugees who cannot show ‘good cause’ may be disqualified from applying for asylum. To this end, they enacted and gave effect to the challenged provisions which require asylum seekers who entered South Africa irregularly or failed to report to a refugee reception office within five days, to satisfy relevant officials that there are “compelling reasons” or “good cause” for the non-compliance – failing which they are barred from applying for refugee status, irrespective of the merits of their asylum claim. Once denied the opportunity to apply, the asylum seeker is vulnerable to arrest, detention, and eventually deportation to the country of origin – to almost certainly face persecution and threat to life.
The Applicants (Scalabrini) and our clients (Amnesty International, the Global Strategic Litigation Council for Refugees, and the International Detention Coalition) submitted that this interpretation of Article 31 and the meaning of ‘penalty’ is flawed and constitutionally impermissible because it contravenes the central protection of non-refoulmentenshrined inArticle 33 of the Convention and section 2 of the Refugees Act.
The essence of our clients’ submissions (as submitted in yesterday’s hearing) is that the challenged provisions amount to something more than a penalty, and in fact disqualify affected asylum seekers from applying for asylum and having their claims determined on the merits. Accordingly, so our clients submitted, these provisions are in contravention of the Constitution and at odds with South Africa’s international law obligations and would lead to untold gross human rights violations by returning vulnerable individuals to countries where they would face persecution and threat to life. The Court reserved judgment.
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