High Court rules asylum seeker detention unconstitutional

THE legality of processes that have denied new asylum seekers access to the asylum system since around November 2023, leading to the arrest, detention, and deportation of asylum seekers without a refugee status determination interview, has been declared unconstitutional.

- ZELDA VENTER

The Western Cape High Court has declared several refugee protection 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 Africas 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.