IMMIGRATION

Facts: Asylum seekers who wish to approach a Refugee Reception Office (RRO) to apply for asylum must first obtain a so-called appointment slip to do so. This process is not regulated by law and requires the asylum seeker to return in six to eight months. When, eventually, the asylum seeker returns and is granted access to the RRO, the first interview they receive is held by immigration officers in terms of section 21(1B) of the Refugees Act 130 of 1998 read with Regulations 8(1)(c)(i), 8(2), 8(3) and 8(4). According to the Scalabrini Centre, the interview is limited to questions of condonation and procedure and the immigration officers do not apply their minds to the fundamental question of what persecution the asylum seeker will face if returned to their country of origin. After the immigration officers find that an asylum seeker has failed his or her interview, the asylum seeker is arrested, detained, and brought before a court to initiate the deportation process.

Application: The Scalabrini Centre submits that the effect of the challenged provisions is that almost all new asylum seekers attending on RROs are refused the right to apply for asylum and are either arrested for deportation or are ordered to depart South Africa. Almost no new asylum applicants are, in fact, attending on RROs, since they have become aware that such attendance amounts, in practice, to being expelled from South Africa. Pending a constitutional challenge to the provisions, the Centre seeks to interdict Home Affairs from deporting any foreign national who has indicated an intention to seek asylum, unless and until their asylum application has been finally rejected on its merits.

Discussion: The Centre submits that it has at the very least, prima facie prospects of success in the main application; in fact, it submits that it has very strong and clear prospects of success. In support of its prima facie case for interim relief the Centre submit that the challenged provisions fall to be declared to be unconstitutional as: first, the very concept underpinning the challenged provisions – that is, that asylum seekers can be disbarred from the refugee system solely due to their adverse immigration status, without any consideration of the merits of the asylum seeker’s claim – is an unacceptable and unjustifiable violation of the right to non-refoulement, the Constitution, and international law; and second: that the concept of disbarment is irrational, inasmuch as it serves no legitimate government purpose. The Centre relies heavily on one of its own cases before the Constitutional Court: Scalabrini Centre v Minister of Home Affairs [2023] ZACC 45. The respondents argued that in Ashebo v Minister of Home Affairs [2023] ZACC 16 the Constitutional Court found that the challenged provisions did not offend the principle of non-refoulement.

Findings: The court has not had the benefit of full argument in relation to the Constitutional challenge itself, and is in no position to comment on whether or not the Constitutional Court may have incorrectly read certain provisions of the United Nations Convention Relating to the Status of Refugees and thereby incorrectly concluded that the challenged provisions do not offend the principle of non-refoulement. The Centre has failed to convince the court “in the clearest terms” that it can disregard the separation of powers between the judiciary and the executive and restrain the respondents from implementing the challenged provisions, albeit on an interim basis. However, the respondents agree to an order interdicting them from deporting any foreign national who has evinced an intention to seek asylum until such time as his or her application is determined on the merits, pending the determination of the relief in the main case.

* Note at paras [58]-[90] the court’s displeasure at the conduct of the litigation.

Order: The respondents are interdicted from initiating any process to deport any foreign national present in the Republic in the event that such foreign national has indicated an intention to make an application for asylum in terms of section 21(1)(b) of the Refugees Act 130 of 1998. This interdict is to endure pending the determination by the High Court of the part B relief sought in this application. The costs incurred in seeking the interim relief are to be costs in the cause of the main application.

MANCA AJ

Facts and issue: Both the applicants, Mr Goodluck and Mr Boamah, have brought urgent applications for interdicts against the various respondents for their release from detention, as well as prohibiting their deportation from the Republic of South Africa. In both applications, the applicants are asserting that they have already applied for asylum and have both previously been granted temporary asylum seeker permits in terms of section 22 of the Refugees Act 130 of 1998. Boamah allegedly failed to apply for a renewal of this visa, whilst in Goodluck’s case, his asylum application had been refused and was, according to him, subject to judicial review.

Boamah application: The applicant alleges that he was unable to renew his asylum seeker permit due to the covid-19 outbreak. The applicant was sentenced and convicted by the Magistrate Court. The respondents are detaining the applicant pursuant to the order of the Magistrates’ Court, which order is binding until set aside. However, the court has not been asked to sit as a court of review or appeal for purposes of setting aside the conviction and sentencing in this regard. Furthermore, the non-joinder of the Minister of Correction as well as the non-joinder of other interested parties such as the NPA and the Magistrate, in any event would have barred the court from deciding the issue. As such, even though the detention is unlawful by virtue of the provisions of the Refugee’s Act, this court cannot order the respondents to contravene a binding order of the Magistrate’s Court.

Goodluck application: The applicant had to bring an urgent application before this court for his release from detention and prohibiting his deportation pending the outcome of judicial review proceedings. Despite confirming that that the temporary permit was not issued and that the record was not provided, the applicant has failed to indicate any steps taken in terms of the Uniform Rules to enforce his rights in this regard. The applicant has not brought a judicial review application. Until the existence of such an application has been conclusively established or, alternatively, until an application for review in terms of section 24 (5)(b) (if applicable) of the Refugee’s Act or an application for judicial review is brought, the applicant remains an illegal immigrant and subject to criminal proceedings per the Immigration Act.

Order: In terms of Boamah, the respondents are directed to release the applicant from detention once the impediment to such release created by the order for conviction and sentencing of the Magistrate Court ceases to exist; alternatively on the 24th of July 2024; whichever event occurs the earliest. In terms of Goodluck, the applicant’s detention remains lawful until service of the review application, alternatively a new review application, on the respondents and State Attorney.

Facts and issue: The applicant, a Nigerian national, entered the Republic of South Africa with an intention to apply for asylum. He left Nigeria due to the constant terrorist attacks by unknown gunmen, who invaded their community. Having entered the country, he was issued an asylum visa which allowed him to apply for asylum. The application was denied, and he was arrested in terms of section 34(1) of the Immigration Act. He is currently in detention at the Lindela Repatriation Centre, awaiting deportation to Nigeria. The applicant seeks that the respondents be interdicted from deporting him until his status under the Refugees Act has been lawfully and finally determined.

Discussion: It is the applicant’s claim that he cannot be deported to his country of origin because he remains an asylum seeker as his refugee status has not been finally determined. In defending himself against the imminent deportation by the respondents, the applicant invokes the principle of non-refoulement. He alleges that even though his application for asylum was rejected, his refugee status has not been fully finalised because he has not exhausted all his remedies. The law as it stands is that until an applicant’s refugee status has been finally determined, the principle of non-refoulement protects her/him from deportation. The relief sought by the applicant not to be deported at this stage, holds sway. The applicant has evinced an intention to apply for asylum. There is ample, uncontroverted evidence, that points to the fact that the applicant’s refugee status has not been finally determined. He is protected by the principle of non-refoulement from deportation until the process for determining his status has been completed.

Findings and order: It is declared that the applicant is, in terms of section 2 of the Refugees Act 130 of 1998, entitled to remain lawfully in the Republic of South Africa. The respondents are ordered to refrain from deporting the applicant until his status has been determined and finalised.

Facts and issue: When the urgent roll was published, it contained 51 matters. In 21 of those matters, either the Minister or the Department of Home Affairs was cited as a respondent. Nineteen of the matters concerned applications by asylum seekers who are currently in detention at the Lindela Holding Facility. They approached court urgently essentially seeking orders interdicting their deportation from South Africa pending the final determination of their asylum applications.

Discussion: These 19 applications are spearheaded by three firms of attorneys. Save for differences in personal details, the notices of motion and founding affidavits in each cluster of cases are otherwise virtually identical. The applications all have one common feature, they all say that the applicants are being detained at Lindela, and they are at risk of imminent deportation. There has been no endeavour by the respective firms of attorneys to draw attention to the virtually identical nature of these cases. Where Practice Notes were filed, there is no reference to any of the other virtually identical matters initiated by the same firm of attorneys. This ought to have been done to ensure practical and expeditious resolution of such matters on an urgent basis. All the cases concerned involve a deprivation of liberty. That makes them inherently urgent. Given the importance of the right to individual liberty, an applicant seeking release from detention need do no more than allege that he or she is being unlawfully detained by the respondent. The onus then shifts to the respondent to justify the detention. The subject of the applications concerns the rights of refugees.

Findings: Those who are detained and express a desire to apply for asylum must be given the opportunity to do so. Moreover, such persons are entitled to assistance from the Department. In none of the cases has the Department filed an answering affidavit, let alone a notice of opposition. There are some 19 matters before court. Some have been settled. Some have been withdrawn and, in the remainder, there has been no opposition. In relation to those matters which have not been settled, the court made orders that are consistent with those that have been settled. Each case requires a separate order. [Kindly see para [45] and below for full order].

Facts: The applicant was refused a visa application and subsequently declared a prohibited person in terms of section 29 of the Immigration Act 13 of 2002. The relief which the applicant sought to have reviewed and set aside is the decision of the Director-General of Home Affairs refusing to declare the applicant not to be a prohibited person. The applicant also sought to review and set aside the decision of the Minister of Home Affairs dismissing the applicant’s internal review lodged in terms of section 8(6) of the Immigration Act. At the commencement of the hearing of the application, the respondents conceded that their decisions should be reviewed and set aside, and they tendered the costs thereof.

Application: The applicant launched an application to review and set aside two decisions of the respondents, and for the court to substitute these decisions of the respondents. The first decision is the refusal by the respondent that the applicant is not a prohibited person. The second decision is that of the second respondent to dismiss the applicant’s internal review. The only issue for determination is whether the court should substitute the decisions by the respondents. The applicant submitted that there are exceptional circumstances in support of substitution. The respondents have taken a perfunctory stance to refuse all the applicant’s applications that have come before them, and that it would be a waste of time to order the relevant functionary to reconsider them. To remit the matter to the relevant functionary would delay the matter and cause the applicant unjustifiable prejudice.

Discussion: For a court to substitute the decisions of the respondents, it must be just and equitable in the context of such exceptional circumstances which prevail at the time. The respondents indicated a commitment to want to reconsider the decisions afresh. This, together with the concession of the review and setting aside of their decisions at the commencement of the proceedings, indicates a willingness on the part of the respondents to deal with the applicant’s applications fairly. For these reasons, the decisions must be remitted back to the respondents for reconsideration. To ensure that the respondents perform their functions and decide on the applicant’s applications, it is best to put time frames within which the respondents must make their decisions. The court is not in a better position than the respondents to substitute their decisions, that such applications are processed in a polycentric or policy-laden environment, and the respondents will be best suited to consider such applications.

Findings: The matter should be remitted back to the respondents for reconsideration afresh. The respondents’ decisions were not a foregone conclusion, and they will not be a foregone conclusion when reconsidered by the respondents as they are public officials who owe the applicant a duty to consider his applications fairly and objectively. There was no factual allegation that the respondents’ officials acted maliciously or otherwise when dealing with the decisions of the applicant. There does not appear to be an "exceptional case" put forward by the applicant to justify substitution or correction in hoc casu. In the circumstances, it is appropriate to set aside the decisions of the respondents, and to remit the matter back to the respondents for reconsideration of the applications of the applicant within a stipulated time frame.

Order: The decision of the Director-General of the Department of Home Affairs is reviewed and set aside. The decision of the Minister of Home Affairs is reviewed and set aside. The decisions are remitted to the respondents for reconsideration.

PITT AJ

Facts: The appellants are Burundian nationals. They seek to submit further asylum applications in South Africa after their initial applications were unsuccessful. When they first entered the country illegally in 2008 and 2009 they stated that they wished to work and study in South Africa and applied for asylum, but their applications were rejected. The appellants did not leave the country. Some years later, the appellants averred that, after the rejection of their applications, circumstances changed in Burundi. Widespread political violence broke out, following which, thousands of Burundians fled the country. Those who remained were subjected to oppression, torture, rape and sexual violence. The applicants said that it was therefore not safe for them to return to Burundi, as this would place them at risk of persecution or serious threat to their lives, safety and physical freedom. The Director of Asylum Seeker Management in the Department of Home Affairs determined that the appellants may not again apply for asylum in South Africa without returning to their country of origin.

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Appeal: The appellants appeal against the judgment and order of High Court which dismissed their application to compel the respondents to accept their asylum seeker re-applications. This case implicates two interrelated concepts of international law. The first is the customary international law principle of non-refoulement, in terms of which a person fleeing persecution should not be made to return to the country inflicting it. The second is refugee status sur place, which entails that a person enters the country of refuge on one basis, and thereafter, supervening events in their country of origin render them refugees.

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Discussion: The High Court emphasised the fact that the appellants’ asylum applications had been finally determined as manifestly unfounded and they had accepted this decision. Thus, reasoned the court, the shield of non-refoulement had been lifted. The High Court said that on the appellants’ approach, the application of the Immigration Act could potentially be deferred indefinitely as an asylum seeker could always have an asylum application pending. The High Court reasoned that the Refugees Act does not contemplate that a failed refugee application can be re-submitted. The court reasoned that an interpretation of the Refugees Act which allowed for such re-submission would defeat the purpose of the legislation and would result in a never-ending process. A person who was not a refugee when he left his country, but who becomes a refugee at a later date, is called a refugee “sur place”. South Africa has not yet developed a significant jurisprudence on sur place refugee claims. Given the absence of authority on this issue in our jurisprudence, it is useful to look to foreign law, as permitted by section 39(1)(c) of the Constitution. See paras [26]-[50] for the jurisprudence on sur place claims.

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Findings: At the heart of refugee law is the principle of non-refoulement. In our domestic law, this finds expression in section 2 of the Refugees Act 130 of 1998. When it is said that the principle is absolute, it means this: the protection afforded by the principle endures for as long as an asylum seeker has not exhausted all available remedies, including internal appeals and judicial review. The legislation does not, without more, contemplate that applicants whose applications for asylum have been lawfully refused can remain in the country and simply re-submit their applications. A new application can only be brought based on substantially different or changed circumstances. By asserting sur place claims, the appellants sought to remove themselves from the clutches of the Immigration Act 13 of 2002 (as illegal foreigners) and placed themselves back in the purview of the Refugees Act. It was wrong of the Department to demand that the appellants leave the country and make such applications while in the country of origin. Once a refugee sur place claim is made, there is no basis to: (a) demand that an asylum seeker returns to their country of origin pending the determination of their application; or (b) reject the application on the basis that the initial one had been finally determined. However, a sur place claim is not validly made by reformulating a claim that has already been finally determined; and a sur place claim must set out a proper evidential basis for the claim.

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Order: The appeal is upheld with costs. Certain paragraphs of the High Court are replaced such that the respondents are directed to accept the applicants’ sur place refugee claims applications, within five working days of the granting of this order, and to determine such applications within 21 working days thereafter.

MAKGOKA JA (ZONDI JA, MOLEFE JA, KATHREE-SETILOANE AJA and UNTERHALTER AJA concurring)

Facts: The applicants are foreign nationals seeking asylum in South Africa. They have each presented themselves at the Pretoria Refugee Reception Office with the intent to apply for asylum but have been turned away. Mr Mati and Mr Rasool say that they were told that nationals from their country of origin do not qualify for asylum at all. Mr Shamore was told that access to the office was by appointment only. Each of the applicants was arrested and detained under the Immigration Act 13 of 2002. They were charged and convicted under section 49 of the Act for being present in South Africa without a valid visa. Each of them apparently served a short prison sentence before being sent for deportation.

Application: Each of the applicants placed an application for their immediate release on the urgent roll. They then moderated that relief to a prayer for an order interdicting and restraining the Minister and the Director-General, from deporting them, and an order directing the respondents to afford them an interview, during which they could show good cause for entering or remaining in South Africa without a valid visa. Mr Shamore applied for an order interdicting and restraining his deportation pending being afforded such a good cause interview, which the respondents were required to take “all necessary steps” to arrange within 10 days. Mr Shamore asked to be released if the respondents did not take those steps.

Discussion: Under Regulation 8(3), an asylum seeker who has entered or is found in South Africa without a valid visa must show good cause for being without one before they are permitted to apply for asylum. The applicants have already tried to apply for asylum at least once. They have been prevented from doing so by administrative obstacles that seem both irrational and unlawful. There is no lawful or rational basis upon which nationals of a particular country could be prevented from applying for asylum, no matter what their individual circumstances. But this is what Mr Rasool and Mr Mati say happened to them. Nor can it be rational or lawful to turn an asylum seeker away because they have not made an appointment, which is what Mr Shamore says happened to him. Those fleeing persecution will seldom be able to arrange an asylum interview with the authorities in their country of destination in advance.

Findings: Having been denied the right to demonstrate their entitlement to asylum, the applicants were arrested, and their detention was extended while the respondents sat back and took no steps whatsoever to facilitate a good cause interview. The respondents’ failure to organise good cause interviews also raises the possibility that, without court intervention, the applicants would have been returned to their country of origin without having had their asylum claims considered, all on the basis that they were found in South Africa without a valid visa and were never given an opportunity to justify this. That would be in breach of South Africa’s international obligations, entrenched in section 2 of the Refugees Act 130 of 1998. In the cases of Mr Shamore, Mr Mati and Mr Rasool, no good cause interview had been arranged even though the respondents had every opportunity to do so. Once it had been established that the delay in organising the interview in each of the applicants’ cases was not reasonable, an order for the applicants’ release is warranted.

Order: The applicants are ordered to be released immediately. The respondents are to pay the applicants’ costs.

WILSON J

Facts and issue: Application compelling the respondents to return the applicants passport that was seized pursuant to her being in possession of a fraudulently obtained permanent residence visa. The applicant furthermore seeks an order reviewing and setting aside the decision taken by the respondents to declare her as a prohibited person. The applicant applied to the respondents to renew a spousal visa. The applicant claims that she only became aware of the fraud when it was brought to her attention, when she was arrested at the check-in counter the airport. The applicant was criminally charged but the charges against her were dropped after she apparently demonstrated that she was unaware of the fraudulent nature of the visa.

Discussion: The applicant’s case is that she was not afforded any notice or opportunity to make representations to the Respondents prior to being declared undesirable. The applicant states that she was permanently banned from South Africa without a hearing or a fair process of any kind and therefore she was prevented from presenting evidence that she was not complicit in any fraud. The applicant enquired from the respondents and VFS whether there is any internal appeal process that she can exhaust. There is no ground to allege that the applicant failed to exhaust the internal remedies. The actions of the respondents are administrative action and not ex lege. The applicant was not afforded an opportunity to make representations before the decision to declare her undesirable was made. It is not disputed by the respondent that the applicant was in contact with their offices, asking questions and seeking solutions on how to reclaim her passport. The respondent does not dispute that the applicant was criminally charged with fraud, but the charges were withdrawn. Once the charges were withdrawn, the applicant’s passport should have been immediately returned to her as that was the basis of the charge and arrest. There is no reason for the applicant to have obtained a fraudulent visa from an agent. The applicant is the lawful spouse of a South African citizen and have been issued with a valid spousal visa before.

Findings and order: The decision to declare the applicant a prohibited person is reviewed and set aside. The respondents are to return the applicants passport to her immediately, cancelling the fraudulent visa.

Facts and issue: The applicant seeks the review, in terms of the provisions of the Promotion of Administrative Justice Act 3 of 2000, of the respondent’s respective decisions to reject the renewal of the first applicant’s Critical Skills Visa and the consequent internal appeals of that decision. The ground of the objection was stated to be that there was no proof that the applicant employer was duly registered in terms of the South African Laws.

Discussion: The applicants contend, with merit, that the reason for the respondent’s rejection was patently wrong insofar as the first applicant’s employer is a South African registered company with a registration number which was reflected as part of the application. Albeit that there may be something to be said that it would have been in the best interest of the first applicant to also submit the company documents of his employer, that does not detract from the duty upon the respondent to properly consider the application including the reference to a South African registration number of the employer. The applicants contend that the respondent’s rejection is wrong, in fact and in law, which is demonstrated with a reference to the share certificate which clearly shows that the IBA Group A.S, being the Czech Public Company, is the shareholder in the employer company. The failure to properly consider the relevant facts ultimately lead the respondents to the wrong conclusions.

Findings: Considering the facts of the matter, including the shifting of goal posts by the respondents, as well as the apparent failure to fully consider both relevant circumstances and the apparent oversight in respect of the correct status of the first applicant’s employer, it follows that the decisions must be reviewed and set aside. Mr Lebeko conceded that if the matter is not moot that the review must succeed. The concession was rightly made.

Order: The decisions issued by the respondents rejecting the first applicant’s application for the renewal of his Critical Skills Working Visa and the consequences which followed upon those decisions are reviewed and set aside. The applications are remitted to the respondent for reconsideration.

Facts and issue: The applicants, a married couple from the Democratic Republic of Congo, apply to review and set aside the decisions of officials of the Department, and subsequent appeal decisions by the DG and Minister. The decisions determined that the applicants were prohibited persons in terms of the Immigration Act 13 of 2002, for being in possession of fraudulent visas.  The decisions collectively have the effect of prohibiting the Applicants from South Africa. 

Discussion: The applicants contend that they have a right to a prior fair hearing before being declared  prohibited persons and they were denied such right. They were not complicit in fraudulent activities in obtaining the visas. By not receiving notice or not  being afforded an opportunity to make representations before the decision, the process by which the applicants were declared prohibited persons was unfair and unlawful. The initial decision was not accompanied by reasons. A further defect in the initial decision is that it assumed that the applicants were complicit in obtaining fraudulent documents without more. There is a lack of evidence of the applicants’ complicity in or knowledge of any fraudulent activity. The initial decisions were made without a fair, proper or rational investigation into how the allegedly fraudulent documents came to be issued and who is at fault. 

Findings and order: 

Facts and issue: Review application brought against the decision to withdraw the applicant’s permanent residence certificate. The applicant seeks an order setting aside the decision and any decision taken in terms thereof. 

Discussion: In relying on the marital status of the Applicant, the withdrawal decision was purportedly based on the provisions of section 30(2) (e) of the repealed Alien’s Control Act, 1991. The marital status of the permit holder is however no longer listed as a ground for withdrawal per Section 28 of the Immigration Act. By virtue of section 54(2) of the Immigration Act, the respondents had had no statutory authority to withdraw permanent residence permits after the ACA was repealed in 2003. The decision taken on this basis therefore was not authorised by the empowering provision as per section 6(2) (f)(i) of the Promotion of Administrative Justice Act of 2000 was procedurally unfair and was materially influenced by an error of law in terms of section 6(2) (c) and (d) of (PAJA). 

Findings and order: The decision to uphold the second respondent’s decision to withdraw the applicant's permanent residence is reviewed, set aside and replaced. The applicant’s internal appeal is upheld and the decision of the Director-General to withdraw the applicant's permanent residence, is reviewed, set aside and/or withdrawn in its entirety.

Facts and issue: The applicant, an Ethiopian national, fled to South Africa in 2013. He lodged an application for asylum in the manner prescribed and was issued with an asylum seeker temporary permit or visa. The applicant’s application for asylum was adjudicated by a Refugee Status Determination officer. The Refugee Appeal Board subsequently upheld the decision of that officer to reject the application, prompting an application for judicial review. The applicant failed to renew his permit thereafter due to financial difficulties. He was arrested and detained and a criminal prosecution was instituted.  The issue for determination is the application of s 21(4) of the Refugees Act, and the institution or continuation of criminal proceedings pending judicial review of a decision to refuse asylum.

Discussion: The applicant’s case is that section 21(4)(a) of the Refugees Act, also in its pre-amended form, barred the institution of any criminal proceedings for the contravention of s 49(1)(a) of the Immigration Act, 2002 against the applicant. The claim is that this also bars the continuation of such criminal proceedings against him whilst there is a pending review application against the decision of the Refugee  Appeal Board for rejecting his asylum application. On the appropriate interpretation of section 21(4)(a) of the Refugees Act, also in its pre-amended form, no proceedings could be instituted or continued in respect of the applicant’s presence within the country given the pending review. Being misaligned with the correct interpretation and application of the law, such decisions are irrational and must be set aside. 

Findings and order:  It is declared that the Act barred the institution of any criminal proceedings against the applicant, and also bars the continuation of such criminal proceedings against him while there is a pending application to review the decision of the Refugee Appeal Board to reject his asylum application. The matter is remitted to the first respondent to make a decision.