The legal question regarding South Africa’s obligations toward asylum seekers who face risks of persecution, violence, or war if sent back to their country of origin came under the spotlight at the Constitutional Court this week.

Lawyers for Human Rights (LHR) represented the Scalabrini Centre of Cape Town as a friend of the court in the matter featuring Home Affairs.

The matter concerns two Burundian nationals who came to South Africa between 2008 and 2012 and sought asylum here in terms of the Refugees Act. Their asylum applications were refused by Home Affairs on the basis that they were unfounded.

They subsequently lodged new asylum applications in 2018 on the basis that they had become “sur place” refugees and cannot return to their home countries because of the widespread political violence that had erupted in 2015 in Burundi.

The court described “sur place” refugees as an international category of refugees that enter a country for one reason and are involuntarily rendered refugees due to subsequent events in their countries of origin.

In 2018, they turned to the High Court to compel the department to grant them asylum status, where they partially succeeded.

The Supreme Court of Appeal (SCA) later ruled that once a refugee is “sur place”, there is no basis for Home Affairs to demand that they return to their country of origin, pending the final determination of their asylum-seeking applications.

Unhappy with this verdict, Home Affairs turned to the Constitutional Court to finally deal with South Africa’s international law obligations. The issue the apex court has to determine is whether the Refugees Act permits asylum seekers to repeatedly apply for asylum if their previous attempts failed.

The Burundi nationals in this application maintain that a human rights obligation rests on the department to protect persons from being returned to countries where they reasonably fear persecution.

The LHR, meanwhile, argued that the case goes to the heart of South Africa’s domestic and international law obligations of non-refoulement, which prohibits the return of a person to a country where they may face persecution or serious harm.

According to the LHR, non-refoulement is absolute and applies regardless of procedural status. They say that South Africa must provide fair and accessible procedures to access new or changed circumstances.

“In a world where conflict shifts rapidly, protection must shift with it,” it said.

The organisation also pointed out that it is the risk that matters, not the paperwork. South Africa’s commitment to protection is more critical than ever, and to allow refugees to return to conflict zones would betray the spirit of dignity which underpins our Constitution, the LHR said.

zelda.venter@inl.co.za

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