Asylum seekers face numerous obstacles as they strive to reach a country that can offer them refuge. One of the greatest challenges they encounter is the risk of detention upon their arrival. This is because they often enter countries through unauthorized means like using false documentation, entering without proper authorization, and relying on smugglers to assist them.
International instruments like the 1951 Refugee Convention emphasize that detention should only be used when necessary for administrative purposes. These instruments also stress that asylum seekers should not face penalties for illegal entry or presence without regard to the merits of their claims to be refugees.
The United Nations, the Working Group on Arbitrary Detention and the Office of the High Commissioner for Refugees recommend that governments should consider the possibility of progressively abolishing immigration detention. Examples of alternatives to detention include surrender of documents, sureties, reporting requirements, community supervision, designated residence, electronic monitoring, phone reporting and home curfew.
S A v Minister of Home Affairs and Another; S J v Minister of Home Affairs and Another; B I v Minister of Home Affairs and Another (A5053/2021; A5054/2021; A5055/2021)  ZAGPJHC 178 (14 March 2023)
In this recent landmark judgment, the High Court of South Africa, Gauteng Division, Johannesburg, examined the scope of the principle of non-refoulement and interpreted the 2020 amendments to the Refugee Act and its Regulations. The court specifically focused on the provisions (sections 4 and 21 of the Refugee Act, 1998 and Regulations 8(3) and (4) of the Refugees Regulations, 2018, GN R. 1707 GG 42932, 1 January 2020) that regulate the authority of the State to continue detaining illegal foreigners, under section 34 of the Immigration Act, 2002 when they indicate an intention to seek asylum.
A case summary in our refugee index collection explores key aspects of the judgment and its impact in the protection of asylum seekers in South Africa. Below are excerpts from the case summary highlighting the summary, analysis and its practical implications.
This was an appeal against a judgment that refused to order the release of three illegal foreigners, who were being held in detention according to section 34 of the Immigration Act and had expressed a desire to apply for asylum. The foreigners were released long ago, and the case was resolved in relation to their personal interests. The matter was heard because public interest required the clarification of the effect of the 2020 amendments to the Refugees Act and its Regulations. Particularly, as regards to whether the detention of illegal foreigners under the Immigration Act extinguishes when they indicate an intention to apply for asylum and the procedure for making an asylum application.
The court interpreted the right to seek and enjoy asylum in relation to asylum seekers who are in the country unlawfully as "illegal foreigners”.
The court dealt with the interplay of the Immigration Act and the Refugees Act. It was guided by the decisions of the Constitutional Court in Ruta v Minister of Home Affairs, Abore v Minister of Home Affairs and Another which interpreted the application of the principle of non-refoulement before and after the 2020 amendments to the Refugees Act and its regulations.
These decisions held, amongst other things, that the right to seek asylum goes beyond the procedural right to lodge an application for asylum – although this is an important component of the right. The decisions noted that the Immigration Act should be read in harmony with the Refugees Act. Although an asylum seeker is in the country unlawfully as an “illegal foreigner”, they enjoy the right to seek and enjoy asylum once they indicate an intention to apply for asylum. The right applies for as long as the claim to refugee status has not been rejected after a proper procedure. Section 2 of the Refugees Act captures the protection of refugees and asylum seekers under the principle of non-refoulement and should prevail when there is a conflict with other provision(s) in the Refugee Act or other laws.
The court interpreted the 2020 amendments and summed them as follows:
The detention of “illegal foreigners” under section 34 of the Immigration Act should cease when the application of the Refugee Act is triggered by an indication of an intention to apply for asylum, not by a formal application being submitted. Further, that the enquiry into good cause referred to in Regulation 8(3) of the Refugee Regulations is not a precondition for making an application for asylum and must be read as part of the overall enquiry to facilitate the application. Finally, the court declared Regulation 8(4) to be ultravires (made beyond powers) for introducing a requirement that cannot be found in the Refugees Act. Regulation 8(4) seeks to limit the right to seek asylum by empowering a judicial officer to require a foreigner who appears before court and indicates an intention to seek asylum to show good cause. Therefore, it conflicts with section 2 of the Refugees Act and must be ignored or read pro non scripto.
The appeal was upheld, and the court ordered the respondents to bear the costs of the applicants including the costs of two counsel where so employed. The costs ordered included the costs of the initial applications, the applications for leave to appeal, the application to waive security and the appeal. The costs were on the scale as between party and party.
Relevance and practical implications
This decision has significant implications for asylum seekers who find themselves in the country unlawfully. The court confirmed that the principle of non-refoulement is broad and protects asylum seekers for as long as the claim to refugee status has not been finally rejected after a proper procedure. It emphasized that the right to seek asylum extends beyond the mere procedural aspect of submitting an application and applies once an intention to seek asylum is indicated. This ensures that asylum seekers, despite their unlawful presence, are entitled to pursue protection.
Furthermore, the court's clarification on the interplay between the Immigration Act and the Refugees Act underscores the need for harmonious interpretation. By recognizing that the Refugees Act takes precedence in cases of conflict, the judgment reinforces the primacy of refugee protection principles.
The judgment establishes that the detention of "illegal foreigners" should cease when the Refugee Act is triggered by an intention to apply for asylum, rather than waiting for a formal application. This helps prevent unnecessary and prolonged detention of asylum seekers, allowing them to access the protection process more promptly.
Additionally, the court's declaration of Regulation 8(4) as ultra vires is crucial. By eliminating the requirement for asylum seekers to show good cause before seeking asylum, the judgment upholds the right to seek asylum without undue burdens or restrictions.
Overall, this landmark judgment reinforces the protection of asylum seekers, ensuring that their right to seek and enjoy asylum is respected, even if they are in the country unlawfully. It also highlights the need for a fair and streamlined asylum process, promoting efficiency and safeguarding the fundamental rights of those in need of international protection.
Childhood statelessness in South Africa
Stateless asylum seekers and illegal immigrants or their children often encounter difficulties in proving their identity and nationality, which can hinder the asylum process and lead to protracted legal battles and prolonged periods of uncertainty. Their lack of citizenship can affect their ability to access legal protection, travel documents, employment, education, healthcare, and other essential services.
By recognizing the intersecting challenges faced by stateless individuals and asylum seekers, governments and the international community can work towards developing inclusive policies and practices that promote the protection and inclusion of all individuals, regardless of their citizenship status.
Khoza v Minister of Home Affairs and Another (6700/2022)  ZAGPPHC 93 (27 February 2023) determined the status of a child born in South Africa of a mother who was an irregular immigrant and an unknown father.
A case summary in our refugee index explores the key aspects of the judgment and the relevance and practical implications of it.
The applicant (Mr. Khoza), was a stateless person born in South Africa and had lived in the country his entire life. The applicant had made numerous attempts to register his birth from 2013 to 2023 but was denied assistance from the Department of Home Affairs. The applicant became an orphan at the age of six and had no official documents of his time/place of birth.
Despite the findings of one of the Department’s own officials (that Mr. Khoza was, in fact, born in the South Africa and had no other citizenship in any other country), the Department continuously refused to assist Mr. Khoza with his application for registration of his birth. The Department’s claims that the evidence provided by Mr. Khoza is insufficient were denied by the court, which ruled that due to the applicant’s circumstances, it is not for him to prove his birth and citizenship beyond any doubt.
In determining whether the respondents’ disputes were real, genuine and bona fide, the court applied the principles laid out in the cases of Plascon-Evans (the Plascon-Evans Rule) and “Wightman”. The court found that the respondents disputes were far-fetched, consisted of “bald denials” and created fictitious standards of proof.
Late registration of birth – The court relied on the 1954 UN Convention: Statelessness, the Births and Death Registration Act 51 of 1992 (the “BDRA”), as well as the evidence before the Court and the investigation done by the Department. Since the applicant’s guardians were illegal foreigners who lived in an informal settlement at the time of his birth, the court found that it is highly likely that the applicant was born at home – which explains the lack of hospital records. The court was satisfied with the findings that Mr. Khoza was born in South Africa.
Citizenship by Birth/Naturalisation – The court dealt with sections 2(2) and 4(3) of the Citizenship Act, 1995. Since it was already determined by the court that Mr. Khoza’s birth must be registered in terms of the BDRA and from the evidence before the court, the court found that all requirements set out under the provisions were satisfied. The court ruled that citizenship by naturalisation should be conferred upon the Applicant in the alternative to section 2(2) of the Citizenship Act, 1995.
Regulations of the Citizenship Act – The court ordered the Minister of Home Affairs to accept applications in terms of section 2(2) of the Citizenship Act on affidavit pending the promulgation of the abovementioned regulations.
From the evidence and the investigation by the Department, the court was satisfied that Mr Khoza was born in South Africa. The application was successful, and the court ordered the respondents to:
· Register the applicant’s birth.
· Declare the applicant to be a South African citizen (by birth, or alternatively, by naturalisation).
· Enter the applicant into the National Population Register as a citizen.
· Pay the costs of this application on an attorney and client scale, jointly and severally, the one to pay the other to be absolved - costs will include the costs consequent upon the employment of two counsel.
Relevance and practical implication
The court's reliance on the 1954 UN Convention on Statelessness and the Births and Death Registration Act of 1992 (BDRA) in the case of late registration of birth, highlights the importance of ensuring legal recognition and protection for individuals who are born in circumstances where their births were not registered promptly. The court's decision establishes the significance of rectifying such registration delays and acknowledges the difficulties faced by individuals in providing documentation, particularly when born at home or in informal settlements without access to hospital records. This case sets a precedent for similar situations and emphasizes the obligation of the state to protect the rights of individuals in vulnerable circumstances, such as stateless individuals.
This decision also clarifies the legal provisions surrounding citizenship in similar cases. The court's consideration of sections 2(2) and 4(3) of the Citizenship Act of 1995 addresses the issue of Mr. Khoza's citizenship status and underscores the importance of determining citizenship based on birth or naturalization criteria.
The court's order for the Minister of Home Affairs to accept applications under section 2(2) of the Citizenship Act on affidavit, pending the promulgation of regulations, allows individuals in similar situations to apply for citizenship through an affidavit. Thus, it provides a temporary solution until the regulations are put in place.
Overall, this case summary highlights the importance of birth registration, citizenship determination, and the adaptation of regulations to address specific circumstances. It reinforces the legal protections afforded to individuals in vulnerable situations, sets precedents for future cases, and emphasizes the state's responsibility to ensure the recognition of individuals' rights, including their citizenship status.