'Our constitution embraces the vulnerable' - LRC hails refugee verdict

25 April 2018 - 09:27 By Timeslive
Refugees and asylum seekers queue at the Home Affairs office on Cape Town's foreshore. File photo
Refugees and asylum seekers queue at the Home Affairs office on Cape Town's foreshore. File photo
Image: Tariro Washinyira

A Constitutional Court judgment‚ which provides protection to asylum seekers who currently have their application for refugee status under review‚ has been welcomed by the Legal Resources Centre.

In the Western Cape High Court‚ 29 asylum seekers‚ represented by the LRC‚ challenged the refusal of the Acting Manager of the Cape Town Refugee Reception Office to renew their Section 22 asylum seeker permits pending the outcome of individual high court reviews of each of their rejected asylum applications. The case rested on the issue of what the reception office must lawfully undertake in terms of granting an extension on these permits.

If asylum seekers in such cases are not granted extensions of their permits‚ this leaves them at risk of arrest and deportation‚ denying them the ability to effectively exercise their right to judicial review‚ the LRC noted.

The case was on appeal from the Supreme Court of Appeal. On Tuesday‚ the Constitutional Court held that the constitutional interpretation of sections of the Refugees Act is that the word “may” does not confer a discretion‚ but rather empowers and enjoins the Refugee Reception Office to extend asylum seeker permits until the finalisation of a judicial review.

The judgment emphasised the need for the Constitutional Court to interpret the statutory provisions in accordance with the purpose of the Refugees Act‚ which is to give effect to international refugee law.

In particular‚ the principle of non-refoulement states that a refugee must not be returned to their country of origin if they face persecution.

The judgment reasoned that an interpretation refusing to extend permits during judicial review would be at odds with the principle of non-refoulement since asylum seekers would lose their entitlement to remain in South Africa lawfully and be at risk of deportation and return to the very persecution from which they were forced to escape.

The LRC said the Constitutional Court’s judgment was another landmark one‚ "which emphasises the need to protect vulnerable asylum seekers. The emphasis placed on international refugee law and the need for an interpretation which best affords asylum seekers protection is noteworthy".

The judgment also highlighted a section of the constitution which requires that courts interpret legislation in a manner that promotes the spirit‚ purport and objects of the Bill of Rights.

"We are pleased that the court embraced the commitment to transformative constitutionalism – interpretation and development of the law in line with the constitutional values of freedom‚ equality and dignity – for all those who reside within the Republic of South Africa‚" said the LRC.

The LRC is a non-profit‚ public interest law clinic.