Constitutional Court dismisses Home Affairs’ application for leave to appeal

LHR welcomes the decision by the  Constitutional court to dismiss an application for leave to appeal brought by the Department of Home Affairs. In a 2011 Supreme Court of Appeal (SCA) decision which dealt with the protection of newly arrived asylum seekers, the SCA held that asylum seekers cannot be prevented from applying for asylum after being arrested. Once a person has declared their intention to apply for asylum they must not be prevented from lodging this application regardless of when this declaration is made.

According to the LHR attorney who represented the asylum seekers, Nicola Whittaker “The SCA judgment is significant not only in its interpretation of the Regulations to the Refugees Act but also meaningful in that it requires strict compliance with the Regulations to the Refugees Act. The argument of the Department that ‘substantial compliance’ is sufficient is simply not good enough.”

The history of the case:

On 9 November 2011, the Supreme Court of Appeal (SCA) ordered the release of 19 Ethiopian asylum seekers from immigration detention at the Lindela Holding Facility in Krugersdorp. They were being detained for purposes of deportation to Ethiopia. The SCA ordered that the 19 Ethiopian asylum seekers be afforded 14 days within which to approach a Refugee Reception Office in order to apply for asylum.

In the written judgment from the SCA handed down on 29 November 2011, the SCA held amongst other things that it is not for a court to decide whether a person is entitled to apply for asylum; nor is it for a court to decide whether an intended asylum application is unfounded. It held that it is abundantly clear from the Refugees Act that it is for a Refugee Status Determination Officer to determine the merits of an asylum application.

Importantly, the SCA held that once a person has expressed an intention to apply for asylum, the protections in the Refugees Act apply immediately. Furthermore, the regulations do not require an applicant to express his or her intention to apply for asylum immediately on being encountered. Where a person does not express their intention to apply for asylum immediately on being encountered, the SCA held that they should not be precluded from doing so thereafter.

In its judgment the SCA was also critical of the manner in which the high court dealt with the application, the flouting basic rules of procedure and invoking unfair stereotypes of foreign nationals.

On 21 December 2011, the Department of Home Affairs launched an application for leave to appeal the decision of the SCA to the Constitutional Court. The Department’s grounds for leave to appeal included the assertion that the SCA had erred in its interpretation on Regulation 2 (2).

However, on 6 February 2012, the Constitutional Court dismissed the Department’s application for leave to appeal, with costs, on the basis that it bears no prospects of success.

The SCA judgment of Yene Woldemeskel Bula and 18 others v Minister of Home Affairs and Another 589 / 2011 thus stands.

Whittaker added that “Lawyers for Human Rights is delighted with the order of the Constitutional Court. The Department’s application for leave to appeal failed to demonstrate any prospects of success. Furthermore, it failed to demonstrate why the SCA judgment was inconsistent with the Constitution. It’s unfortunately another example of wasteful litigation by Home Affairs which diverts attention and resources from dealing with critical challenges in the department ”