Supreme Court of Appeal orders immediate release of Somali refugees from OR Tambo Airport

PRESS RELEASE - 24 November 2010

After more than ten weeks in detention at OR Tambo International Airport, the Supreme Court of Appeal today overturned a decision of the Pretoria High Court and ordered the immediate release of two Somali refugees - who were being deported by Namibia via South Africa to war-torn Somalia.  They are being released tomorrow morning.   

The Supreme Court grilled the Department of Home Affairs on its approach in opposing the application in the High Court and on appeal, stating that if it had not been for Home Affairs’ attitude, it would not have been necessary to be in court today.  Instead of releasing them on 8 September 2010, they were detained at the private detention facility run by ARM through its contract with ACSA in conditions that do not meet minimum standards of detention, causing them chronic and psychological stress.

According to Gina Snyman at Lawyers for Human Rights (“LHR”), the court emphasized that people held in the international area of the airport do not fall outside of the scope of the Constitution’s protection.  Snyman added that “this would include access to medical attention and minimum standards of detention.  Instead, Home Affairs obstructed our clients’ access to medical care - despite the health complications that arose during their detention.” She added, “during the last 10 weeks we’ve been forced to threaten urgent legal proceedings against Home Affairs, ACSA and ARM on more than three occasions to ensure our clients were assisted, by private health practitioners brought to the facility at LHR’s expense, and to ensure our own access to the facility to consult with our clients.”

LHR was first alerted to their imminent deportation by Namibian officials by the UNHCR, who had been trying to prevent their deportation to Somalia since their immigration detention in Namibia. UNHCR also sought their re-entry into South Africa, which the government refused.
UNHCR also verified their legal status in South Africa, but Home Affairs opposed the High Court application to halt their deportation and for their re-entry into South Africa on the basis that South Africa could not interfere with Namibia’s deportation order.
 
The Supreme Court of Appeal, in their questioning of Home Affairs’ counsel,  disagreed - confirming the appellants’ submissions that allowing their deportation would be in violation of South Africa’s domestic and international obligations against non-refoulement – the principle that people in need of protection cannot be forcibly removed to a country where they will face persecution or threat to their lives. The Supreme Court made it clear that Home Affairs has a positive obligation to protect their rights against non-refoulement and persecution in their country of origin.
 
This situation is caused by a growing international trend in using extraordinary detention facilities in order to avoid international obligations. LHR urges the government to uphold its obligations towards asylum seekers and refugees, and to ensure that the operation of private detention facilities in the airport and elsewhere, where detainees are at high risk of abuse of their constitutional rights, operate within the law.

The court indicated that it will give a full judgment at a later date.