Court declares asylum seeker detention unconstitutional

THE Western Cape High Court has declared asylum seeker detention unconstitutional after it was challenged by human rights lawyers and the Scalabrini Centre.

- ZELDA VENTER

The Western Cape High Court has declared several refugee protection compromising provisions of the Refugees Act and its accompanying regulations invalid.

The matter was brought to court by the Scalabrini Centre of Cape Town, represented by Lawyers for Human Rights (LHR).

The Scalabrini Centre and LHR challenged the unlawful practice of arresting and detaining new asylum seekers based on preliminary interviews conducted by immigration officials regarding their entry into the country. They argued that this process effectively bypassed the established asylum application process, contravening the fundamental principle of non-refoulement, which prohibits the return of individuals to places where they face persecution or serious harm.

"This judgment affirms South Africa's obligations under international refugee law. Newcomer asylum seekers cannot be penalised for the way they entered and remained in South Africa until their claims are finalised," Nabeelah Mia, the head of LHR’s Penal Reform and Detention Monitoring Programme, said.