Home Affairs flouts the law and deports asylum seeker
On 10 May 2009, the day the Department of Home Affairs welcomed its new Minister, Home Affairs illegally deported an asylum seeker to the Democratic Republic of Congo-returning him to face the same persecution and grave risk that caused him to flee his home and seek refuge in South Africa.
The deportation is a blatant violation of South Africa's domestic and international legal obligations, which prohibit returning an asylum seeker to an area where he risks persecution. Further, the deportation occurred just two days before his case against Home Affairs was to be heard in the Johannesburg High Court.
"Deporting an asylum seeker while they are engaged in legal proceedings challenging their detention and deportation thwarts the judicial process and demonstrates bad faith," said Julie Ebenstein, with the Refugee Rights Project at Lawyers for Human Rights (LHR). "Home Affairs knew about his case and was aware of their obligation not to deport asylum seekers."
The deportation demonstrates Home Affairs' general indifference to the rule of law and the judicial process and its blatant disregard for the legal rights of refugees and asylum seekers.
"Home Affairs is repeatedly breaking the law by arresting and detaining asylum seekers who are awaiting determination of their asylum claims," said Gina Snyman with the Detention Monitoring Project at LHR. "Asylum seekers are routinely arrested and detained by Home Affairs despite being in possession of permits issued by Home Affairs which authorize them to remain in the country. They often are detained for months or even years without being brought before a judge or receiving any of the legal processes required by law."
Home Affairs' deportation of an asylum seeker also constitutes refoulement - the involuntary return of an asylum seeker to a country where he or she faces persecution or grave danger - and directly contravenes South Africa's obligations under domestic and international law. Protection from refoulement is a fundamental principle of human rights that is well-recognized by all democratic countries.
The asylum seeker, whose name is witheld for security reasons, had been unlawfully detained at the Lindela Holding Facility in Krugersdorp since 21 February 2009. On 24 April 2009, LHR brought an urgent court application on his behalf seeking his release from Lindela pending final determination of his asylum claim. The court hearing was set to take place on 12 May 2009. Home Affairs deported him on 10 May 2009, two days before his matter was due to be heard in court.
This is the fourteenth court case brought by LHR in the past three months challenging the unlawful arrest and detention of asylum seekers. In eleven of these cases, the court ordered the release of the applicant from Lindela Holding Facility. In the remaining two cases, Home Affairs agreed to release the detained person on the morning of the court hearing, after the detainee had been subjected to months of unlawful detention.
In response to these court applications, Home Affairs has shown a pattern of abusing the court process. Despite court orders directing Home Affairs to immediately release the detainees with a valid asylum seeker permit in their possession, Home Affairs has repeatedly failed to release them expeditiously. Following these unnecessary delays and continued detentions in violation of the law, Home Affairs has then released the applicants without the necessary permits, in direct contempt of court orders. Without permits, the released asylum seekers live under the threat of re-arrest, detention, and even deportation to countries where they face persecution.
"It is clear that Home Affairs has attempted to circumvent the judicial process completely by deporting an asylum seeker back to his country of origin before a court could hear his case," said Snyman.
For more information please contact:
Gina Snyman at 011 339 1960 / 072 180 7524 or gina [at] lhr [dot] org [dot] za
Julie Ebenstein at 011 339 1960 / 079 181 3385 or julie [at] lhr [dot] org [dot] za