Victory in Constitutional Court for asylum seekers

Source: Samigration, 13/02/2019

South Africa is home to at least 400,000 asylum seekers and
refugees. An asylum seeker is someone who claims, in an
application to the Department of Home Affairs, to have fled from a
place where they have been persecuted or where they are in danger.
A refugee is someone who has been granted asylum either by
government or a court.
Before asylum seekers get official refugee status they are granted
a temporary permit which allows them to remain in the country
until their application has been dealt with. Official refugee
status can often take time and many applications are rejected.
When an application is rejected, an asylum seeker can go through
an internal appeal, up to the Refugee Appeals Board. If that too
fails, he or she can take the matter on judicial review in the
High Court. During this time, the Refugees Act allows a Refugee
Reception Officer to extend the asylum seeker’s temporary permit
from time to time.
The question that arises is: up to what point is such an extension
allowed? And is the extension automatic or does a Refugee
Reception Officer have the discretion to refuse an extension?
The case before the Constitutional Court was brought by several
asylum seekers from Cape Town whose applications for official
refugee status had been rejected. They were represented by the
Legal Resources Centre. After exhausting internal appeals, they
applied for an extension of their temporary permits pending
judicial review. The extension was not granted.
The High Court found that a Refugee Reception Officer does have
the discretion to extend a permit pending judicial review.
However, the Court found that the extension is not automatic but
at the discretion of the officer.
The Supreme Court of Appeal largely upheld the decision of the
High Court. Home Affairs appealed to the Constitutional Court to
rule that a Refugee Reception Officer can only extend a permit
until internal remedies in terms of the Act have been exhausted.
The asylum seekers cross-appealed and wanted the Constitutional
Court to go further than the Appeal Court decision and find that
an extension is not only permitted but also automatic. The
Constitutional Court explained that two legal issues had to be
addressed: Whether a Refugee Reception Officer has the power to
extend a permit pending judicial review; and If so, whether an
extension is automatic or whether the Refugee Reception Officer
must exercise discretion. At issue was the interpretation of the
word “outcome” in the Act. Home Affairs argued that this referred
to “the final administrative outcome” in terms of the act. The act
provides for two layers of appeal if an application for official
refugee status has been rejected: first, asylum seekers may
approach the Standing Committee for Refugee Affairs, and if this
fails they may approach the Refugee Appeals Board. According to
this logic, once this outcome is reached no further extensions are
permissible. For this reason, the outcome of a judicial review of
the decision of the Appeals Board wouldn’t qualify as an “outcome”
in terms of the act. The court rejected this approach. Firstly, it
emphasised that when courts interpret legislation they must do so
in order to fulfil the key purpose of a piece of legislation. And
one of the key purposes behind refugee law, the court said, was to
ensure that refugees are not returned to the circumstances from
which they were seeking refuge. This means that “no one shall
expel or return a refugee against his or her will, in any manner
whatsoever, to a territory where he or she fears threats to life
or freedom.” Adopting the Home Affairs approach would mean that
asylum seekers who have exhausted internal remedies in terms of
the Act would be at risk of being deported, even if they were
seeking refuge for valid reasons. It would be “cold-comfort” to
argue that an asylum seeker would still have the option of
approaching a court for interim protection: this could be
unsuccessful for technical reasons, and anyway it would be
expensive and impractical for an asylum seeker to institute legal
proceedings once he or she had already been deported. The
Constitutional Court also emphasised that courts must prefer an
interpretation of legislation that protects fundamental rights in
terms of the Bill of Rights. If Home Affairs’s interpretation were
adopted an asylum seeker’s rights to just administrative action,
access to courts, life, human dignity, and freedom and security
could be infringed. For all these reasons, the court rejected Home
Affairs’s interpretation and found that a Refugee Reception
Officer does have the power to extend a permit, pending judicial
review.
Here, the court found that the principle of “non-refoulement” â€`
not sending a person back to a place where he or she would be in
danger â€` would suggest that an extension must be automatic.
The court also said that if a Refugee Reception Officer did have
discretion to refuse to extend a permit this would create a
discrepancy in the Act. This is because the act enables the
minister in certain prescribed circumstances to withdraw a permit
but does not prescribe the circumstances under which a decision
not to extend a permit may be made. Yet a refusal to extend a
permit and the withdrawal of a permit have the same effect. The
court found that it would not make sense that the Act gives more
discretion to the Refugee Reception Officer than to the minister.
So the court found that the only interpretation that would make
sense is that an extension is automatic and the Refugee Reception
Officer has no discretion at all.
The court declared â€` with a minority of judges dissenting â€` that a
Refugee Reception Officer does have the power to extend a permit
pending judicial review and that such an extension is automatic.
The court awarded costs against Home Affairs.
The case will strengthen the situation of thousands of asylum
seekers who are in a precarious position without official refugee
status. It reduces the possibility of unjustified deportations and
ensures that South Africa complies with its international
obligations to protect refugees from persecution and threats to
their life and safety.