A Blow for Asylum Seekers

By Dean Joubert de Villiers, Senior Associate in the Litigation department

In a recent Supreme Court of Appeal (“SCA”) judgment in the matter of The Minister of Home Affairs v Saidi & Others, the SCA made two important decisions concerning asylum seekers living in South Africa who have exhausted internal remedies to become Refugees, and the role of the courts to intervene when an extension of an Asylum Seeker Permit is refused by a Refugee Reception Officer (“the RRO”).

The litigation was the result of a decision by the new RRO in the Western Cape who refused to extend the Asylum Seeker Permits of Saidi and others in circumstances where their applications for refugee status had been turned down and the judicial review of this decision was pending. This approach differed from the approach adopted by the previous RRO, who would extend the Asylum Seeker Permits until the judicial review had been finalised.

On the first issue, the SCA confirmed that the RRO is empowered in terms of Section 22(3) of the Refugees Act to extend an Asylum Seeker Permit to a date after the internal remedies are exhausted.

Having succeeded on the first issue, Saidi and other Asylum Seekers then asked the SCA to direct the RRO to extend the permits of Saidi and the other refugees pending the outcome of their applications for judicial review. The SCA however declined to interfere with the RRO’s refusal to extend the Asylum Seeker Permits. It found that there was no legitimate expectation that the permits would be extended to a later date. Further, it held that the RRO has a true discretion that should not be interfered with by the Courts unless exceptional circumstances exist.

The result of this decision is that Refugees who have no option but to approach the High Court for relief are not guaranteed to have their Asylum Seeker Permits extended pending the outcome of the Court’s decision. Consequently, they may find themselves without status in South Africa and therefore illegal.

There may be grounds on which the arrest and deportation of an unsuccessful applicant can be avoided, but we suggest that you consult with an accredited legal professional to consider your options before embarking on litigation of this nature.

For more information on the above, please contact:

Dean Joubert de Villiers
Senior Associate in the Litigation department
Shepstone & Wylie Attorneys
djdv@wylie.co.za
+27(0) 31 575 7513