The appellants appealed against the order of the court a quo, which ordered the release of the respondents and interdicted the appellants from deporting the respondents or continuing their repatriation, on the grounds were that the court a quo misdirected itself in failing to appreciate that no review proceedings were pending in the respondents' pleadings and that as a consequence it granted orders which were not sought by the respondents, and which were in fact substantive final orders.
Refugee; refugee status; Termination of refugee status; international law; Protocol Relating to the Status of Refugees; 1951 Convention Relating to Status of Refugees
The respondents, all Namibian citizens, had fled as refugees from Namibia between 1998 and 2000, fearing persecution for being members of the United Democratic Party. They had been involved in a lengthy court battle with the Government of Botswana concerning the cancellation of their refugee status and efforts to repatriate them to Namibia. In March 2015, the Governments of Botswana and Namibia determined that the basis for the respondents staying in Botswana no longer existed. This determination was made under Art 2 of the 1967 Protocol Relating to the Status of Refugees under the 1951 Convention Relating to the Status of Refugees.
A Tripartite Commission consisting of the Governments of Botswana and Namibia and the Office of the United Nations High Commissioner for Refugees issued a press release in May 2015 confirming the determination that the respondents' refugee status in Botswana would come to an end on 31 December 2015, rendering them subject to immigrant status. Some of the refugees' leaders demonstrated against the envisaged repatriation process and were arrested.
The court quo granted an order for the release of the leaders and their return to the refugee camp; that the appellants were ordered to comply with the March 2016 order; that the appellants were interdicted from deporting the applicants to Namibia pending the determination of the review application; and were interdicted and restrained from continuing with the respondents' repatriation until the reasons for their fleeing no longer existed.
The appeal was upheld.
In light of the decision of the court on March 2016, and the 2003 Refugee Guidelines for Cessation of Refugee Status under articles 1C(5) and (6) of the 1951 Convention, the decision on cessation is not primarily dependent on the respondents but it is dependent on objectively established facts ascertained by the relevant state parties, that is, the state of nationality, the host state, and the United Nations High Commissioner for Refugees.