Date: 27/02/2025
On 27 February 2025, the Scalabrini Centre of Cape Town (Scalabrini) and Lawyers for Human Rights (LHR) will return to the Western Cape High Court. The hearing concerns Part B of an application in which we are challenging the constitutional validity of certain provisions of the Refugees Act 130 of 1998 (the Refugees Act) and its regulations. These provisions are used by the Department of Home Affairs (DHA) to prohibit newcomer asylum seekers from accessing the asylum system in South Africa. Since November 2023, the DHA has been arresting newcomer asylum seekers for not having asylum, as they arrive at Refugee Reception Offices to apply for asylum. This practice undermines the fundamental principles of both domestic and international human rights, and refugee law.
Background
Since November 2023, new applicants for asylum have been subject to arrest, detention, and deportation without the opportunity to undergo a refugee status determination interview. The arrests stem from preliminary interviews being conducted by immigration officials, who assess whether applicants have good cause for failing to enter the country through a designated port of entry and obtain an asylum transit visa at the border. The majority of applicants are found to be lacking good cause, resulting in their arrest for deportation.
This process effectively denies individuals access to the asylum system, leaving them vulnerable to unlawful detention and deportation to their home countries, where they face persecution, violence, war, detention, or even death. This is in violation of the principle of non-refoulement, the cornerstone of refugee protection.
“Our obligations under international refugee law are very clear – newcomer asylum seekers cannot be penalised for the way they entered and remained in South Africa, until their claims are finalised. When newcomer asylum seekers come to South Africa seeking refuge, the primary question in assessing their claims is whether they are at risk of persecution and harm if they are returned to their country of origin. By not allowing newcomer asylum seekers to access the asylum system, we risk sending people back to situations where they will be harmed, tortured, or even killed,” said Nabeelah Mia, the head of LHR’s Penal Reform and Detention Monitoring Programme.
“Someone who flees war, violence, torture, or persecution should be able to apply for and receive asylum. Preventing them from doing so violates their fundamental right not to be returned to violence and/or persecution. Yet, regrettably, an administrative legal barrier has been put in place that prevents some who seek refuge from being able to apply for asylum. Instead, new asylum applicants are arrested, detained, and face deportation. This is not in keeping with the principle of non-refoulment, the cornerstone of refugee law. Fundamentals of the Constitution like human dignity, safety and security of person, the right to life must not be disregarded! South African cannot, must not, and is legally required not to return someone to an environment in which their life, liberty, or fundamental human rights would be at risk,” said James Chapman, head of Advocacy and Legal Advice at Scalabrini.
Legal Action
On 27 August 2024, the Scalabrini represented by LHR were in the Western Cape High Court presenting part A of the application, seeking an interdict and a suspension of the operation of certain amendments to the Refugees Act, and associated regulations. The interdict to suspend these provisions was to ensure that newcomer asylum seekers would not be denied access to asylum and detained for deportation, while the constitutional challenge to the provisions was waiting to be heard.
On 13 September 2024, Acting Justice Manca delivered a judgment in a Part A of the application interdicting the DHA from initiating any process of deporting any foreign national present in the Republic, if such foreign national has indicated an intention of applying for asylum in terms of section 21(1)(b) of the Refugees Act. Unfortunately, the request for an interdict to prevent the arrest and detention of newcomer asylum seekers was not granted at that time.
Today, the constitutional challenge to the provisions that have allowed the practice of arrest detention and deportation of new asylum applicants to occur will be heard. Amnesty International, the Global Strategic Litigation Council for Refugee Rights (Global Council), and the International Detention Coalition (IDC) represented by Cliffe Dekker Hofmeyr, have applied to be admitted as friends of the court in the proceedings. These organisations seek to provide the Court with relevant international and comparative legal authorities on the rights of asylum seekers, and the broader protection provided by international refugee law. The Helen Suzman Foundation (HSF), represented by Norton Rose Fulbright, is also seeking to intervene as a friend of the court. HSF seeks to contribute to the proceedings by focusing specifically on the impact of the challenged provisions on children. The impugned provisions exclude asylum seekers from applying for refugee status if they do not meet specific immigration requirements. This exclusion also affects asylum seekers’ children. Their formal applications for admission as friends of the court will be heard at the start of today’s hearing.
The unlawful arrest, detention and deportation of asylum seekers is a grave violation of human rights, the Constitution, and international law. Scalabrini and LHR are committed to ensuring that South Africa upholds its legal and moral obligations to protect those fleeing persecution, violence, or war.
For more information visit Scalabrini’s Detention and Deportation in South Africa webpage and infographic or LHR’s infographic.
Contact us:
James Chapman
Head of Advocacy and Legal Advice, the Scalabrini Centre of Cape Town
advocacy[@]scalabrini.org.za
021 465 6433
Or
Nabeelah Mia
Head: Penal Reform and Detention Monitoring Programme, Lawyers for Human Rights
Nabeelah[@]lhr.org.za
011 339 1960
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Lawyers for Human Rights (LHR) welcomes the recent order granted by the Western Cape High Court as a positive step in...
Date: 19/05/2021
PRESS STATEMENT | DHA announces online renewal...
Lawyers for Human Rights welcomes recent information released by the Department of Home Affairs (DHA), announcing an online renewal process...
Date: 18/05/2021
PRESS STATEMENT | LHR Represents UN Special...
Beginning today, the Pretoria High Court will hear a challenge to government’s longstanding failure to take meaningful steps to combat...
Date: 17/05/2021
PRESS STATEMENT | LHR and Sonke Gender...
On 12 May 2021, the Western Cape High Court will hear the matter of Scalabrini Centre of Cape Town (Scalabrini)...
Date: 11/05/2021
PRESS STATEMENT | Mining Host Communities in...
This week, the Pretoria High Court is hearing a review of the 2018 Mining Charter, to which a number of...
Date: 04/05/2021
JOINT STATEMENT | Hate Crime Murders –...
South Africa, it is enough. Over the past two and half months, South Africa’s LGBTIQ+ community has been rocked by...
Date: 22/04/2021
PRESS STATEMENT | LHR briefs Portfolio Committee...
Ms. Primrose Modisane is a South African citizen by birth, however, for the past 16 years she has struggled to...
Date: 15/03/2021
PRESS STATEMENT | Lawyers for Human Rights...
Lawyers for Human Rights (LHR) has received several reports from student activists regarding the South African Police Service’s (SAPS) use...
Date: 10/03/2021
PRESS STATEMENT | LHR Launches Universal Birth...
“Universal birth registration is impossible to ignore and entirely possible to achieve.” – Archbishop Emeritus Desmond Tutu, 2009 Universal birth...
Date: 05/03/2021
PRESS STATEMENT | 195 former employees of...
Today, Lawyers for Human Rights (LHR) is in the Labour Appeal Court representing dismissed workers of the Ekurhuleni Metropolitan Municipality...
Date: 23/02/2021
PRESS STATEMENT | Wayne Ncube Appointed as...
Lawyers for Human Rights is delighted to announce the appointment of Wayne Ncube to the role of National Director of...
Date: 17/02/2021
Statement by the Southern African Nationality Network...
As the Covid-19 virus has spread across the world, we were all beset with fear and uncertainty that has now...
Date: 16/02/2021
PRESS STATEMENT | New LHR report looks...
Today Lawyers for Human Rights (LHR) released a new report on gender and migration. The report, titled “Paper Promises”, is...
Date: 08/02/2021
PRESS STATEMENT | Constitutional Court confirms unconstitutionality...
On 4 December the Constitutional Court handed down judgment in the confirmation proceedings relating to Sonke Gender Justice / President...
Date: 07/12/2020
PRESS STATEMENT | High Court Grants interim...
Lawyers for Human Rights (LHR) welcomes the judgment handed down in the Western Cape High Court interdicting and restraining the...
Date: 04/12/2020
PRESS STATEMENT | Community journalists pledge their...
On the 26th and 27th November 2020, journalists working in community radio and community print media from around South Africa...
Date: 03/12/2020
PRESS STATEMENT | South Africa’s Department of...
In 2019 the Southern African Litigation Centre (SALC) launched an application in the Western Cape High Court challenging the decision...
Date: 16/11/2020
PRESS STATEMENT | “South Africa belongs to...
Elizabeth was born in Lesotho to a Basotho mother and a South African father. She moved to South Africa when...
Date: 13/11/2020
PRESS STATEMENT | UN Special Rapporteur for...
The United Nations Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean,...
Date: 13/11/2020
PRESS STATEMENT | LHR and Sonke Gender...
Lawyers for Human Rights (LHR) will be representing Sonke Gender Justice (Sonke) who have brought an application to the Court...
Date: 10/11/2020
PRESS STATEMENT | Ahmed Timol murder-accused to...
Lawyers for Human Rights (LHR) will be representing the Southern African Litigation Centre (SALC) who will be appearing as amicus...
Date: 05/11/2020
PRESS STATEMENT | African organisations push for...
In June 2014, the United Nations Human Rights Council adopted resolution 26/9, by which it agreed to establish an open-ended...
Date: 20/10/2020
PRESS STATEMENT | QWELANE VS SOUTH AFRICAN...
On 22 September 2020, the Constitutional Court will hear the case of Jonathan Dubula Qwelane v South African Human Rights...
Date: 21/09/2020
[PRESS STATEMENT] Lawyers for Human Rights to...
On Tuesday, 15 September 2020, Lawyers for Human Rights (LHR), in collaboration with Scalabrini Centre of Cape Town and Corruption...
Date: 15/09/2020
Statelessness in a global pandemic: an old...
A statement by the Southern African Nationality Network (SANN) to the 16th Southern African Civil Society Forum.
Date: 21/08/2020
[VACANCY] LHR seeks Candidate Attorney for eThekwini...
LHR is inviting applications from law graduates with an interest in human rights law and public interest litigation to join...
Date: 31/07/2020
[PRESS STATEMENT] Constitutional Court settles 7-year battle...
The Constitutional Court yesterday handed down judgment in a case launched by Lawyers for Human Rights in 2016, but which...
Date: 23/07/2020
[VACANCY] LHR seeks National Director
LHR is a vibrant, 40-year old non-profit organisation offering specialist public interest legal services in key programme areas such as...
Date: 08/07/2020
[PRESS STATEMENT] Residents of Industry House &...
On 29 June 2020, the High Court in Johannesburg declared section 13 (7) (c) of the South African Police Services...
Date: 01/07/2020
[PRESS STATEMENT] On World Refugee Day, LHR...
As we commemorate world refugee day it is important to uphold the fundamental rights of foreign nationals as equal to...
Date: 20/06/2020
[PRESS STATEMENT] Urgent Litigation on Covid-19 Social...
Lawyers for Human Rights (LHR) supports the Scalabrini Centre of Cape Towns’ urgent litigation to include asylum seekers and special...
Date: 17/06/2020
[PRESS STATEMENT] UN Special Rapporteur Applies to...
Lawyers for Human Rights (LHR) is representing the United Nations Special Rapporteur on the issue of human rights obligations relating...
Date: 15/06/2020
[PRESS STATEMENT] Agreement reached between the Lesetlheng...
This agreement is a significant milestone following protracted litigation and ongoing negotiations between the Lesetlheng community and Pilanesberg Platinum Mine.
Date: 11/06/2020
[PRESS STATEMENT] Fighting For Fatherhood In South...
Lawyers for Human Rights (LHR), representing the Centre for Child Law (CCL), yesterday filed an application with the Constitutional Court...
Date: 10/06/2020
[PRESS STATEMENT] Lawyers for Human Rights Releases...
On Friday, 12 June 2020, via webinar, Lawyers for Human Rights (LHR) will launch its report, “Monitoring Policy, Litigious and...
Date: 09/06/2020
Joint Statement on Child Protection Week: Protecting...
The World Health Organisation describes COVID-19 pandemic as having a devastating impact across the world. Although governments are commended for...
Date: 03/06/2020
[PRESS STATEMENT] Supreme Court of Appeal upholds...
Lawyers for Human Rights (LHR) welcomes the judgment handed down in the Supreme Court of Appeal on 29 May 2019,...
Date: 01/06/2020
[PRESS STATEMENT] TERS extended to workers not...
Lawyers for Human Rights (LHR) welcome the amendments to the Covid-19 Temporary Employer/Employee Relief Scheme (TERS) which extend the definition...
Date: 27/05/2020
Joint Statement: In Solidarity with the Stateless
An urgent call to states, donors and other stakeholders to promote and protect the rights of stateless persons in their...
Date: 27/05/2020
LHR Launches Constitutional Challenge on Behalf of...
Lawyers for Human Rights has launched an urgent application on behalf of informal waste reclaimers in Tshwane Metropolitan Municipality, seeking...
Date: 26/05/2020
Lawyers for Human Rights Celebrates Africa Day:...
Today, the 25th of May 2020, Lawyers for Human Rights (LHR) celebrates Africa Day. Africa Day is an annual commemoration...
Date: 25/05/2020
High Court rules unmarried fathers can register...
Lawyers for Human Rights (“LHR”) welcomes the judgment handed on 19 May 2020 by Rugunanan J of the Makhanda High...
Date: 24/05/2020
Marievale Community Successfully Fights Illegal Eviction by...
In an urgent court hearing yesterday night, Lawyers for Human Rights again successfully defended the Marievale community, a small village...
Date: 22/05/2020
Strandfontein Homeless Action Committee v City of...
It is with regret that Lawyers for Human Rights announces that it has withdrawn as the attorneys of record for...
Date: 21/05/2020
Strandfontein Homeless Committee Takes on City of...
On Monday 18 May 2020, the Strandfontein Homeless Action Committee (SHAC), represented by Lawyers for Human Rights, initiated legal proceedings...
Date: 19/05/2020
Joint Statement on Workers Day 2020
A joint statement by the Universal Rights Association, Africa Diaspora Forum, the Consortium for Refugees & Migrants in South Africa,...
Date: 01/05/2020
High Court declares parts of the new...
In the matter of Lawyers for Human Rights and Others v Minister of Home Affairs and others, LHR acting in...
Date: 01/01/2003
Lawyers for Human Rights wins landmark decision...
Lawyers for Human Rights won a landmark case against the Department of Home Affairs and the Airports Company of South...
Date: 01/01/2002
Refugee rights dropped from world racism conference
Following the controversial debate surrounding reparations, the Geneva preparatory meeting of the UN World Conference Against Racism has recently decided...
Date: 01/01/2001
Human rights group plan court action over...
HUMAN rights lawyers are threatening legal action against the home affairs department for ordering border posts to turn back asylum-seekers...
Date: 01/01/2001
Die Okkupeerder: a Resource Manual for Eviction...
At the end of May 1999, the Security of Farm Workers Project launched a booklet called “Die Okkupeerder: A resource...
Date: 31/05/1999
LHR to Challenge Discriminatory Impact of COVID-19...
Lawyers for Human Rights will appear before the Pretoria High Court today on behalf of five groups of informal waste...
Date: 07/04/2020
NIAWG Advocacy Statement on COVID-19 and vulnerable...
The NIAWG calls on all concerned stakeholders and authorities to make every effort to prevent any form of harm and...
Date: 08/04/2020
LEGAL SUPPORT HOTLINE DURING #LOCKDOWNSA
Public Interest Law organisations working together, to make sure human rights are respected and protected during the COVID19 lock-down in...
Date: 31/03/2020
LHR’s Human Rights Day Statement
On this Human Rights Day, amidst the growing COVID-19 threat, Lawyers for Human Rights calls on all in South Africa...
Date: 21/03/2020
LHR Responds to COVID-19
On Sunday, 15 March 2020, President Cyril Ramaphosa declared a national state of disaster due to the COVID-19 virus outbreak....
Date: 16/03/2020
Constitutional Court rules president’s suspension of SADC...
Lawyers for Human Rights welcomes the Constitutional Court’s judgement, handed down yesterday, 11 December 2018, in the matter of Law Society...
Date: 12/12/2018
Urgent appeal to support LHR client after...
Lawyers for Human Rights is making an urgent appeal for assistance after a recent judgement by the Johannesburg High Court,...
Date: 21/10/2019
Supreme Court of Appeal secures the right...
LHR welcomes the judgment handed down by Maya P in the Supreme Court of Appeal on Monday, 8 July 2019,...
Date: 08/07/2019
Sexual offences courts critical in the fight...
Organisations in the gender-based violence sector were shocked to learn that the Department of Justice intends to investigate the possibility...
Date: 15/05/2017
Police failure to assist complainants in terms...
Lawyers for Human Rights (LHR) is deeply unsatisfied with the South African Police Service (SAPS) and Civilian Secretariat for Police...
Date: 30/09/2017
LHR rejects normalisation of violence against women
Lawyers for Human Rights (LHR) is shocked to learn that Deputy Minister of Higher Education, Mduduzi Manana, allegedly assaulted two...
Date: 07/08/2017
#NotOurLeaders campaign launched during 16 days of...
#NotOurLeaders Campaing launched by Women and Democracy Initiative, Lawyers for Human Rights and gender violence specialist during 16 Days of...
Date: 24/11/2017
No more time limit to prosecute sexual...
On Thursday 14 June 2018, the South African Constitutional Court (Court) issued an unanimous judgment confirming that there will be...
Date: 15/06/2018
LHR supports #TheTotalShutDown
Lawyers for Human Rights (LHR) supports #TheTotalShutDown, the national intersectional womxn’s march against gender based violence. All LHR women and...
Date: 01/08/2018
#NotOurLeaders
Equality Court to hear case on the...
On 26 November 2018, the Lawyers for Human Rights (LHR) will appear in the Cape High Court, sitting as an...
Date: 25/11/2018
LHR on announcement that there is no...
On Monday, 2 September, the South African government on Twitter called on women to “speak out”, and “not allow themselves...
Date: 03/09/2019
Victory for Jade September and the transgender...
On Monday 23 September 2019, the Equality Court in the Western Cape handed down judgment in the matter of September...
Date: 23/09/2019
Judgment in the case of J September
Lawyers for Human Rights, the Legal Resources Centre, and Gender Dynamix cordially invite you to a press conference, on judgment...
Date: 16/09/2019
African organisations push for binding treaty on...
As part of the latest round of negotiations on the U.N. Binding Treaty on transnational corporations and other business enterprises...
Date: 01/10/2019
Marievale Community in court today to fight...
In November and December 2017 members of the SANDF stormed into the homes of about 150 families residing in a...
Date: 17/04/2018
Mayor of Lusikisiki for contempt of a...
15 April 2018 — On Friday, 13 April 2018, the New Rest community witnessed justice in action when the Mayor...
Date: 15/04/2018
Victory for the homeless
LHR represents a group of homeless people who reside at Prince’s Park, on the corner of Prince’s Park Road and...
Date: 03/04/2018
Mr Godfrey Mtenje and his family fight...
The matter of Mr Godfrey Mtenje will continue be heard in the Land Claims Court of South Africa on the...
Date: 19/03/2018
Victory for mining host communities in 2017...
This morning, the Pretoria High Court postponed the judicial review of the Mining Charter published last year by Minister of...
Date: 19/02/2018
LHR notes the statements released by the...
LHR notes the statements released by the Chamber of Mines and the Department of Mineral Resources regarding postponement of the...
Date: 19/02/2018
Mining host communities in court to challenge...
Beginning tomorrow, four mining affected communities represented by Lawyers for Human Rights will be in the Pretoria High Court to...
Date: 18/02/2018
In memory of Rudolph Jansen
Long-time human rights lawyer, Rudolph Jansen, who fought against injustice on behalf of the poor and marginalized for over three...
Date: 27/11/2017
LHR is delighted that the Pretoria High...
LHR is delighted that the Pretoria High Court today ruled that four of its clients, should be allowed to intervene...
Date: 14/11/2017
Mary Rahube // Hedsrine Rahube & others...
Today, the High Court of South Africa, Gauteng Division, Pretoria handed down judgment in the case of Mary Rahube, a...
Date: 26/09/2017
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