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Serious criminals do not qualify for refugee status

Publish date: 07 December 2018
Issue Number: 4604
Diary: Legalbrief Today
Category: Litigation

The Constitutional Court has – in Gavric v Refugee Status Determination Officer, Cape Town and Others – upheld the constitutionality of provisions of the Refugees Act that ban individuals who have committed serious crimes from being eligible for refugee status. ‘In doing so.' says legal journalist Ohene Yaw Ampofo-Anti, ‘the court has added important procedural safeguards to such people and also highlighted how their fundamental rights can still be protected even without obtaining refugee status’. In an analysis on the GroundUp site, he looks at the judgment after an application for refugee status made by Dobrosav Gavric – convicted of murder and sentenced to 30 years imprisonment by a Serbian Court – was turned down by the High Court. Gavric then approached the Constitutional Court, which considered three main issues: whether the provisions of the Refugees Act – which prohibit a person who has committed a serious crime from being eligible for refugee status – are unconstitutional; whether the Act entitles such a person whose application has been rejected to appeal that decision; and whether the decision of the Refugee Reception Officer should be set aside and if so whether Gavric should be granted refugee status. The court pointed out that international refugee laws include a similar prohibition to the one in the Refugees Act, saying ‘it protects refugee status from being abused by those who are undeserving; and it ensures that those who have committed serious crimes do not escape prosecution’. The court found that the Act must be interpreted in a way that protects the rights of refugees. Thus, a person whose application has been rejected because they committed a serious crime may appeal that decision to the Refugee Appeal Board. It also found that the officer provided insufficient reasons for his decision and that the decision was procedurally unfair. However, in considering Gavric’s application for refugee status afresh, it found there was a ‘reasonable likelihood’ that Gavric had indeed committed a crime – having been convicted by both a lower court in Serbia as well as its Supreme Court. It found that on the facts before it there was no reason to believe that he had not received a fair trial in any of these proceedings. ‘The court therefore found that the exclusion provision applied and Gavric was not entitled to refugee status.’

Full analysis on the Ground Up site

Gavric v Refugee Status Determination Officer, Cape Town and Others