Court orders Home Affairs to release detained Afghan family who were fleeing from the Taliban
The Johannesburg High Court on Wednesday 17th March ordered the immediate release of a family of eight asylum seekers who fled the Taliban in Afghanistan, after more than four months in detention and numerous attempts by Home Affairs to illegally return them to Afghanistan. The two parents, their five minor children, and the oldest daughter’s fiancé, also a minor, were arrested separately at the OR Tambo Airport following attempts to join family members in France who were also refugees.
The oldest daughter and her fiancé first attempted to make their way to France in September last year. After detaining them at the airport, Home Affairs tried to deport the two minors back to Afghanistan without fulfilling their legal obligation to investigate whether, as children, they were in need of special protection. The children were flown as far as Istanbul before Turkish authorities intervened and prevented their return to Afghanistan. They were then returned to South Africa and detained for over two months before being moved to a place of safety for children.
The parents and four younger children were intercepted at the airport 6 weeks later. While detained there, the parents made repeated requests to see the two older children, who were also being held at the airport. But they remained separated for two weeks.
Home Affairs attempted to deport the family two more times, but failed to get the necessary clearance to fly through either Istanbul or Dubai. In November of last year, the family was again separated after the parents were transferred to Lindela and the children were sent to a place of safety.
Home Affairs attempted to deport the family two more times, but failed to get the necessary clearance to fly through either Istanbul or Dubai. In November of last year, the family was again separated after the parents were transferred to Lindela and the children were sent to a place of safety.
Despite repeated requests by the family and their legal representatives to lodge asylum applications, and even after Lawyers for Human Rights instituted legal proceedings for the family’s release, Home Affairs persisted in seeking to deport the family. Home Affairs also levelled trafficking allegations against the parents in order to justify their continued detention. The Department made no attempt, however, to investigate these allegations or initiate protective mechanisms for the children; instead, it remained eager to deport the parents together with the children they had allegedly trafficked.
According to Gina Snyman, the family’s legal representative and an attorney with Lawyers for Human Rights, ‘Accusing the parents of trafficking the children was a spurious allegation with no basis whatsoever. It was motivated not by concern for the children, but as a purely invented justification for an otherwise illegal detention.’ The trafficking allegations required the family to undergo DNA testing, delaying the court process and prolonging their detention and the parents’ separation from the children.
According to Gina Snyman, the family’s legal representative and an attorney with Lawyers for Human Rights, ‘Accusing the parents of trafficking the children was a spurious allegation with no basis whatsoever. It was motivated not by concern for the children, but as a purely invented justification for an otherwise illegal detention.’ The trafficking allegations required the family to undergo DNA testing, delaying the court process and prolonging their detention and the parents’ separation from the children.
After more than 4 months in administrative detention, the High Court this week declared their detention unlawful because the Department failed to follow the correct administrative procedures when the family was first detained. The court ordered the immediate release of the parents, and the return of the children to their care. The court also upheld the family’s right to apply for asylum, a right that Home Affairs had illegally denied them.
‘Home Affairs consistently flouts the law by detaining asylum seekers in contravention of the Refugees Act,’ said Snyman, ‘but the treatment of this family is one of the most abhorrent examples I have seen of Home Affairs’ utter contempt for the legal process.’ Snyman says that Home Affairs actions in this matter ‘raise questions about government’s commitment to human rights and respect for the rule of law, as well as its international obligations under the UN Convention on the Protection of Refugees.’ She added, ‘Home Affairs’ insistence on defending illegal detentions with spurious legal arguments both violates the human rights of asylum seekers and wastes taxpayers’ money.’
‘Home Affairs consistently flouts the law by detaining asylum seekers in contravention of the Refugees Act,’ said Snyman, ‘but the treatment of this family is one of the most abhorrent examples I have seen of Home Affairs’ utter contempt for the legal process.’ Snyman says that Home Affairs actions in this matter ‘raise questions about government’s commitment to human rights and respect for the rule of law, as well as its international obligations under the UN Convention on the Protection of Refugees.’ She added, ‘Home Affairs’ insistence on defending illegal detentions with spurious legal arguments both violates the human rights of asylum seekers and wastes taxpayers’ money.’
Together with the Centre for Child Law, who joined the proceedings on behalf of the children, LHR will be seeking an additional court order declaring that the separation of the family and the conditions of the children’s detention were unlawful.
For more information contact:
Gina Snyman
Lawyers for Human Rights
Gina Snyman
Lawyers for Human Rights
011 339 1960