Comparison of
Lesotho Refugee Law Reader
and
South Africa Refugee Law Reader
Lesotho Refugee Law Reader
3 Managing borders and regulating the entry of asylum seeker
3.1 Non-refoulement
3.1.1 The principle of non-refoulment in the national context
The Refugee Act in section 11 on non-refoulement states:
No exceptions to the non-refoulement rule is allowed. But the Refugees Act does make provision for expulsion (presumably to countries where the refugee is not at risk). Section 12 states as follows:
3.2 Border control
3.2.1 National Laws and regulations regarding entry of asylum seekers
Section 7(1) of the Refugees Act requires legal entry presence for an application to be recognised as a refugee, but does not penalise an asylum seeker for illegal entry or stay prior to application. An asylum seeker would thus be required to enter the country in terms fo the Aliens Control Act, and even legalise their presence in terms of the Aliens Control Act before applying for refugee status.
All other migrants’ entry is regulated solely by the Aliens Control Act. The Act does not make provision for other kinds of international protection.
3.2.2 Limitations on access to asylum during periods of National Emergency
Access to asylum and protection were heavily compromised in Lesotho, as in other SADC countries, by border closures during the COVID 19 pandemic lockdowns.
3.3 Non-penalization
The Refugees Act makes specific provision for non-penalisation in section 9(1):
Section 9(2) of the Refugees Act requires an asylum seeker to approach the authorities within 14 days of entry.
Section 9(3) and 9(4) make further provision regarding non-penalisation:
South Africa Refugee Law Reader
3. Managing borders and regulating the entry of asylum seekers
3.1. Non-refoulement
3.1.1 The principle of non-refoulment in the national context
The Principle of non-refoulement is incorporated in section 2 of the Refugees Act 130 of 1998, and provides as follows:
The Refugees Act 130 of 1998 allows for the removal of recognised refugees and asylum seekers through section 28, and provides as follows:
Subject to section 2, a refugee, asylum seeker or categories of refugee or asylum seeker may be removed from the Republic on grounds of national security, national interest, or public order.
A removal under subsection (1) may only be ordered by the Minister.
Any visa or status granted to a refugee or asylum seeker who is removed from the Republic in terms of this section is revoked.
If an order is made under this section for the removal from the Republic of a refugee or asylum seeker, any dependent of such refugee or asylum seeker who has not been granted asylum may be included in such an order and removed from the Republic.
Any refugee or asylum seeker ordered to be removed under this section may be detained pending his or her removal from the Republic.
3.2. Border control
3.2.1 National Laws and regulations regarding entry of asylum seekers
A person who enters the Republic of South Africa through a port of entry (a land border post, airport or harbour) and claims to be an asylum seeker is issued with a section 23 Permit, which is a non-renewable “asylum transit visa” in terms of the Immigration Act.
When entering the Republic of South Africa, one is supposed to declare one’s intention to apply for asylum at an official port of entry. Here, one would be required to provide “biometrics” (fingerprints, a photograph, etc) as well as other information to an immigration officer. This information would include details such as one’s name and surname; date of birth and age; nationality of origin (home country); and “habitual place of residence” (where one has lived for a long period of time) before travelling to South Africa.
3.2.2 Limitations on access to asylum during periods of National Emergency
When the COVID-19 lockdown was implemented in 2020, the Department of Home Affairs closed their offices and put a hold on the provision of their services. Then, as lockdown measures were eased, gradually the Department resumed the provision of certain services. Since March 2020 the Refugee Reception Offices (RROs) have remained closed to new asylum seekers. The Department of Home Affairs resumed services in respect of South Africans, but these services did not extend to refugees and asylum seekers. In May 2021, a new online system became operational that allows asylum seekers and refugees to complete online applications for the renewal of their permits. During this period the Minister of Home Affairs granted a blanket extension for all asylum seekers and refugees whose permits expired on or after 15 March 2020. Affected refugees and asylum seekers struggled to have their permits accepted and recognised by employers, hospitals and authorities.
3.3. Consequences and penalties for irregular entry
The asylum transit visa is issued on entry into the country, at the port of entry. If the asylum seeker does not have a valid asylum transit visa, then they are interviewed by an immigration officer and are required to show good cause (provide good reasons) for their illegal entry or stay in South Africa. They are required to explain why they were not able to travel through an official port of entry, and must attend the Refugee Reception Office within five days.
However, it should be noted that even if an asylum seeker does not have a valid transit visa, according to the Constitutional Court case of Ruta v Minister of Home Affairs [2018], once an asylum seeker expresses an intention to apply for asylum, they must be allowed to go ahead and apply, even if they have delayed in doing so or do not have the asylum transit visa.
The asylum application must be made, in person, at a Refugee Reception Office, as soon as possible after entering South Africa and within five days.
A person may not be turned away from the RRO merely because they do not have an asylum transit visa. According to Ruta v Minister of Home Affairs [2018] ZACC 52, once an asylum seeker expresses an intention to apply for asylum, they must be allowed to apply – even if they have delayed in doing so or do not have the asylum transit visa.
However, recently the matter of ‘good cause’ and what effects it may have in terms of allowing (or barring) a potential asylum seeker have been raised following the case of Ashebo v Minister of Home Affairs and Others and subsequent practices by Immigration and Home Affairs officials in the 2024 year. In this regard the main question raised has been with regards to the method of entry of a potential asylum seeker (i.e. whether they passed legally through and declared themselves at a South African border post, either with some sort of valid immigration visa or through making an application for an asylum transit visa) as well as what can be deemed as any ‘unreasonable’ delay in making an application for asylum at a refugee reception office. However, the legality of these practices and standards has been challenged by human rights groups in South Africa. One such case is Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others (13 September 2024).