cover image: Asylum Seeker Detention in South Africa:

Asylum Seeker Detention in South Africa:

26 Sep 2024

The Convention was domesticated by the enactment of the Refugees Act of 1998, which in conjunction with the Immigration Act No 13 of 2002 (‘Immigration Act’), provided the legal framework for the implementation and regulation of asylum in South Africa. [...] Key Provisions: Pre-Amendments The key provision of the Refugees Act is section 2, which codifies the principle of non-refoulement, essentially mirroring article 33 of the Convention.8 Notably, section 2 begins with the phrase “notwithstanding any provision of this Act or any other law to the contrary”, meaning that the protection provided by the section stands above any other law of South Africa,. [...] (1) The Refugee Reception Officer must, pending the outcome of an application in terms of section 21(1), issue to the applicant an asylum seeker permit in the prescribed form allowing the applicant to sojourn in the Republic temporarily, subject to any conditions, determined by the Standing Committee, which are not in conflict with the Constitution or international law and are endorsed by the Refu. [...] Wallis JA argued that only grounds for refusing an application are set out in s24 of the Refugees Act; that the application is ‘manifestly unfounded, abusive or fraudulent’, or that the application is ‘unfounded’.21 Significantly, in Bula SCA and Ersumo SCA, the Court held that the central provision in determining the lawfulness of detention was, the now repealed, regulation 2(2) to the Refugees A. [...] The Court held that the State’s obligation with regard to the principle of non-refoulement “necessarily requires a determination 19 of the merits of the asylum claim.”72 The Court went further, holding that the provisions in question, in preventing refugee status determination, violated asylum seekers’ constitutional rights.
Pages
23
Published in
South Africa

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