The issue to be determined was whether a prospective asylum seeker should be allowed to apply for asylum in terms of the Refugees Act if there has been a delay between their arrival and their expression of intention to apply. A second issue was whether an asylum seeker who has been convicted of a crime committed within South Africa is barred from applying for asylum.
The applicant argued that barring him from applying undermines his constitutional rights to human dignity, life and freedom and security of the person. The respondents argued that the applicant could and should have applied for asylum much sooner to comply with the legislation. The court unanimously held that delay in itself does not disqualify an asylum application and that the only grounds on which an application may be refused are those set out in the Refugees Act itself. South Africa had signed and ratified both the 1951 Refugees Convention and the OAU Refugee Convention, which express the principle of non-refoulement (prohibition to expel). A delay may still be relevant in evaluating the authenticity of a claim to be a refugee, but it cannot bar an applicant from applying for asylum.
The Minister also contended that the Immigration Act, not the Refugees Act, was the primary statutory vehicle for managing illegal foreigners. These arguments raised the subsequent question of whether a person who claims to be a refugee and expresses an intention to apply for asylum be permitted to apply under the Refugees Act or be dealt with as an illegal foreigner under the Immigration Act. The court held that while the Immigration Act determines who is an “illegal foreigner” liable to deportation, the Refugees Act is the only pertinent statute in determining who may seek asylum and who is entitled to refugee status.
Refugee law; asylum seeker(s); illegal foreigners; delay between arrival and application for asylum; effect of delay; whether criminal convictions bar application for asylum; principle of non-refoulement
The applicant entered South Africa unlawfully in December 2014 and in terms of the Immigration Act he was therefore an illegal foreigner. Two years after his arrival he was arrested for traffic violations and later convicted and imprisoned. While he was in prison, the respondent (Department of Home Affairs) moved to deport him, and he countered by applying formally for asylum under the Refugees Act, arguing that he would certainly face death if returned to Rwanda. The respondent refused to allow the applicant to lodge an application for asylum under the Refugees Act, saying he had applied too late. The matter went to the High Court and later the Supreme Court of Appeal, which court held that he failed to apply for asylum without delay, as both the Refugees Act and the Immigration Act require. Additionally, that the applicant was disqualified from applying for and receiving a refugee permit because he had been convicted of a crime (the traffic violations).
Leave to appeal was granted and the appeal upheld.
The court reasoned that enabling the applicant and asylum seekers in his position to have their status determined under the Refugees Act the law does not as a consequence give everyone or anyone the right to enter the Republic anywhere across our borders. All the Refugees Act does, in conformity with South Africa’s international and regional law obligations, is to ensure that asylum seekers have a chance to have their status determined in the process the Refugees Act itself sets out, and not to be deported summarily under the Immigration Act.