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Over the course of the reporting period, Lawyers for Human Rights (LHR) received exciting judgement from the Western Cape High Court, preventing the implementation of certain, particularly discriminatory provisions of the new Refugees Amendment Act and accompanying Regulations.

For context, a refugee is someone who has been forced to flee their country under threat of persecution due to race, religion, nationality, political opinion and/or  membership of a particular social group, or because of conflict and war. These people cannot return to their country. To be officially recognised as a refugee, an individual must seek asylum in the receiving country, like South Africa.  Here, many of the country’s refugee population come from war-torn areas like the Democratic Republic of Congo and Somalia, and have suffered unspeakable tragedy in their home countries.

As of May 2020, South Africa’s Department of Home Affairs indicated that the country is home to close to 200 000 asylum seekers, as well as just over 80 000 refugees. These numbers may be considerably higher in reality, given the plethora of systemic barriers experienced by newcomer asylum seekers to gaining access to proper documentation. 

Through one of its core programmes, Refugee and Migrant Rights, LHR provides direct legal service and representation to some 11 000 migrants each year.  This work, which includes provision of critical legal support, community education outreach, and policy advocacy, also includes impact litigation, targeted at changing the law and policy that results in fundamental discrimination against the country’s vulnerable refugee and asylum seeker population as a whole. 

In October 2020, LHR represented the Consortium for Refugees and Migrant Rights in South Africa in the matter of Scalabrini Centre of Cape Town v Minister of Home Affairs & Others, in one such impact case.  Here, an urgent interdict was sought against the Department of Home Affairs to prevent implementation of specific provisions in the Refugees Amendment Act that effectively said that any asylum application is deemed to be “abandoned” if an asylum seeker does not renew their documentation within 30 days of its expiration.  While on the face of it, this provision may not seem unreasonable, challenges of reaching the relevant offices every 30 days, particularly in the context of COVID-19, navigating time off work, and handling child care responsibilities mean that this can almost impossible in some circumstances. 

The severe consequence under the Refugees Amendment Act for failure to arrive at the office? Essentially being barred from accessing refugee status at all.    

LHR argued in the case that this had significant impact, inter alia, on child protection in South Africa as well, given the fact that asylum seeker children would also lose the opportunity to be considered for refugee status on the basis that their parent had not managed to renew a permit within 30 days.

The Court handed down judgement in favour of refugees and asylum seekers in South Africa, preventing implementation of the impugned provisions of the Refugees Amendment Act pending the finalisation of a constitutional challenge to them.  The Court also highlighted the importance of organisations like LHR in “promoting and strengthening the rights of a vulnerable group in our society”.

LHR will continue to update its partners and donors on this matter as it proceeds through the courts, and as LHR’s fight for social justice on behalf of its refugee and migrant clients continues.