Under sections 22(12)-(13) of the Refugees Act, asylum seekers failing to renew visas within a month face deportation, prompting a constitutional challenge. Applicants, an NGO and its trustees, argued the abandonment rule was unconstitutional, violating non-refoulement principles from international agreements. The Refugees Act aimed to honor these obligations, especially non-refoulement. The provisions, however, severely limited this right, lacking a logical connection to reducing backlogs and imposing disproportionate sanctions. The abandonment rule proved arbitrary, leading to deportation based on external factors, prejudging asylum seekers' claims. The justification contradicted core refugee law principles by presuming most asylum seekers lacked valid claims. Additionally, the rule violated refugee children's rights for administrative convenience. The court held the provisions unconstitutional, ordering their prompt amendment and referring the declaration of invalidity to the Constitutional Court for confirmation.

Date of judgment

Asylum seeker, asylum, non-refoulement, Constitutionality of the Refugees Act 130 of 1998, rights of children

Case citations
(5441/20) [2023] ZAWCHC 18

This was an application for section 22(12) and (13) of the Refugees Act 13 of 1998 as well as Regulation 9 and Form 3 of the Regulations in the amended Refugees Act and Regulations to be declared unconstitutional. 

The applicant argued that these provisions infringed on the right to non-refoulement. The regulations in question applied to asylum seekers who, failing to renew their visa within one month of its expiration, were deemed to have abandoned their asylum applications. Abandonment led to disqualification from continuing the application, subjecting the individuals to the status of illegal foreigners, with potential deportation consequences.

Decision/ Judgment

The court found that the impugned provisions, infringing on the right to protection under refugee laws and the Refugees Act, were unconstitutional. Despite the respondents' justifications, the infringements of fundamental rights, after balancing relevant factors in section 36(1) of the Constitution, were not justified. Therefore, the provisions were inconsistent with the Constitution and declared invalid. Regarding costs, the court applied the Biowatch principle, considering the applicants' pursuit of constitutional rights for indigent, vulnerable, and marginalized asylum seekers.

Basis of the decision

The court based their decision on the fact that the regulations were arbitrary, irrational, and violated human rights through allowing refoulement (notably the right to dignity and the rights of children).

Reported by
Supported by the UNHCR