The court interpreted the right to seek and enjoy asylum in relation to asylum seekers who are in the country unlawfully as ‘illegal foreigners’.
The court dealt with the interplay of the Immigration Act and the Refugees Act. The court was guided by the decisions of the Constitutional Court in Ruta v Minister of Home Affairs, and Abore v Minister of Home Affairs and Another, which interpreted the application of the principle of non-refoulement before and after the 2020 amendments to the Refugees Act and its regulations. These decisions held, amongst other things, that the right to seek asylum goes beyond the procedural right to lodge an application for asylum, although this is an important component of the right. The decisions noted that the Immigration Act should be read in harmony with the Refugees Act. If an asylum seeker is in the country unlawfully as an ‘illegal foreigner’, they have the right to seek and enjoy asylum once they indicate an intention to apply for asylum. The right applies for as long as the claim to refugee status has not been rejected after a proper procedure. Section 2 of the Refugees Act captures the protection of refugees and asylum seekers under the principle of non-refoulement and should prevail when there is a conflict with other provision(s) in the Refugee Act or other laws.
The court interpreted the 2020 amendments and summed them as follows:
The detention of ‘illegal foreigners’ under section 34 of the Immigration Act should cease when the application of the Refugee Act is triggered by the foreigner making an indication of an intention to apply for asylum, not by a formal application being submitted. Further, the enquiry into good cause referred to in Regulation 8(3) of the Refugee Regulations is not a precondition for making an application for asylum, and must be read as part of the overall enquiry to facilitate the application. Finally, the court declared Regulation 8(4) to be ultra vires (made without the necessary powers) because it introduced a requirement that could not be found in the Refugees Act. Regulation 8(4) sought to limit the right to seek asylum by empowering a judicial officer to require a foreigner who appears before court and indicates an intention to seek asylum to show good cause. Therefore, it conflicted with section 2 of the Refugees Act and must be ignored or read pro non scripto (as if they were never written).
Asylum seeker, illegal foreigner, asylum, asylum transit visa, asylum permit, non-refoulement, detention, administrative detention, imprisonment, legislation, regulations, ultra vires
The court below had refused to order the release of three illegal foreigners (the Applicants), who were being held in detention according to section 34 of the Immigration Act and had expressed a desire to apply for asylum. This was an appeal against that judgment. The Court noted that the Applicants were released long ago, and the case was resolved in relation to their personal interests, but the matter was heard because public interest required the clarification of the effect of the 2020 amendments to the Refugees Act and its Regulations. Particularly, the Court needed to clarify whether the detention of illegal foreigners under the Immigration Act extinguishes when they indicate an intention to apply for asylum and the procedure for making an asylum application.
The appeal was upheld, and the court ordered the respondents to bear the costs of the applicants, including the costs of two counsel where so employed. The costs ordered included the costs of the initial applications, the applications for leave to appeal, the application to waive security and the appeal. The costs were on the scale as between party and party.
The court interpreted the 2020 amendments to the Refugees Act and Regulations according to section 2 of the Refugees Act, which captures the protection of refugees and asylum seekers under the principle of non-refoulement.
The court was also guided by the decisions of the Constitutional Court in Ruta v Minister of Home Affairs, Abore v Minister of Home Affairs and Another.