ConCourt ruling a relief for asylum seekers
Publish date: 21 January 2019
Issue Number: 807
Diary: IBA Legalbrief Africa
Category: South Africa
It is hoped that the compassionate approach to immigration – in the unanimous judgment by Constitutional Court Justice Edwin Cameron in Ruta v Minister of Home Affairs – will be adopted by the department, notes legal journalist Ohene Yaw Ampofo-Anti in an examination of the judgment on the GroundUp site. ‘This case emphasises that SA has an obligation under international law to provide every person who enters its border with an opportunity to apply for asylum,’ he says, adding it ‘also prevents undue delay being used as a reason to reject an application for asylum. The author notes that Alex Ruta, a Rwandan, arrived in SA in December 2014. He came via Zimbabwe and did not enter the country with a visa. In March 2016, he was arrested for a traffic offence for which he was later convicted. Once he was detained, Home Affairs arranged for him to be deported. Ruta, however, opposed this by applying for asylum. By the time the matter came before the Constitutional Court, Ruta had already been released from detention due to the earlier High Court order. His application for asylum had been made and the outcome was pending. The court pointed out that the Refugees Act embodies the international human rights law principle of non-refoulement: no person may be returned to a country where they are at risk of their fundamental rights being violated. This means that a state is obliged to provide every person with an opportunity to at least apply for asylum – including those who have entered a country unlawfully. However, the Minister of Home Affairs argued that only foreign nationals who enter SA lawfully and obtain an asylum transit visa at the border may apply for asylum – and that the Act had no bearing on Ruta’s case. In rejecting the Minister’s arguments, Cameron found that the Act does not undermine SA’s sovereignty or national security in any way. ‘To the contrary, the Refugees Act only extends protection to bona fide refugees and allows fraudulent or dishonest applications to be rejected. Also, it enables the Minister to withdraw a person’s refugee status in some circumstances. The court said it was clear that the Act takes both a compassionate and pragmatic approach to how refugees should be accommodated while respecting national sovereignty.’
