SCA issues landmark judgment on asylum seekers

In what a Business Day report calls a landmark judgment, the Supreme Court of Appeal has found in favour of two Burundi asylum seekers whose bid was refused by the Department of Home Affairs. The report says the SCA has set a new precedent for SA’s refugee law, particularly its international obligations when sending people back to countries where the situation has turned violent while they were out of the country. The Department of Home Affairs refused their asylum bids and in 2014 ordered them to leave SA. However, they did not. They told the department they feared persecution if they returned to Burundi. Due to the change in circumstance, they claimed they were now ‘sur place refugees’. According to the UN, ‘a person who was not a refugee when he left his country but who later becomes a refugee is called a refugee “sur place”.’ The two made a new asylum bid based on the sur place claim. The department refused to hear them as the law does not allow for refugees to make a second application while in SA if the first was rejected. The asylum seekers challenged the department in the High Court in Cape Town. Though the court agreed with Home Affairs, it noted that SA had an international obligation not to send foreigners back to countries where they faced harm, known as ‘non-refoulement’. However, this had been considered by officials when they rejected the asylum seekers’ application in 2014.

The asylum seekers appealed to the SCA, noting that though they may have faced no persecution when they first arrived, Burundi’s landscape had changed. They reiterated they were sur place refugees from 2015 and should not be sent back. The SCA agreed, overturning the High Court’s findings. ‘It was not the High Court’s place to determine whether the appellants’ sur place applications were genuine,’ SCA Judge Tati Makgoka wrote for a unanimous court. ‘That duty fell on the department.’ Makgoka noted SA has not developed jurisprudence on sur place refugee claims, and, using foreign law, explained how it must be considered in future. According to the Business Day report, the judgment sets a precedent for all courts and the Department of Home Affairs when considering this new claim. Makgoka said if the change in a refugee’s home country affected all citizens, not the refugee specifically, a sur place refugee claim usually failed. He ordered Home Affairs to hear their sur place claim.

The Scalabrini Centre in Cape Town has welcomed the ruling, says a report in The Star. Head of advocacy and legal adviser James Chapman said: ‘The judgment recognises the importance of protecting people from violence, torture or persecution in cases where new circumstances have arisen that would make it unsafe to return to one’s country. The court recognises ... that if there is a change in circumstances in one’s country, like war breaking out, or people of a person’s demographic start to be the subject of persecution, torture or genocide, then SA has an obligation to protect the person from being sent back to their country. The court pointed out that Home Affairs was wrong to require a person to leave the country and apply for asylum while in their country of origin, which would put them at serious risk.’