The Western Cape High Court has issued a temporary halt on the deportation of any foreign national intending to apply for asylum, pending the outcome of their application. This interim measure remains in effect until the court delivers a final ruling on a case brought by the Scalabrini Centre of Cape Town. The substantive hearing is scheduled for February 2025.

The ruling, issued by acting Judge Brendan Manca, came with the consent of key officials in the Department of Home Affairs, including the minister Leon Schreiber, the director-general, the chief director of asylum seeker management, and the refugee appeals authority. Under current regulations, foreign nationals must report to a refugee reception office and declare their intent to seek asylum within five days of entering South Africa.

While the interdict prevents deportation, it does not preclude the arrest and detention of individuals. Judge Manca cited the Constitutional Court’s ruling, which upheld the enforcement of criminal law in such instances.

The interim order is tied to a broader constitutional challenge against certain provisions of the Refugees Act and its associated regulations. The Scalabrini Centre argues that changes implemented in late 2023 have resulted in asylum seekers being arrested, detained, and deported without undergoing proper refugee status determination interviews. The centre has warned that these practices violate the principle of non-refoulement, potentially sending individuals back to dangerous environments where they risk persecution or death.

Lawyers for Human Rights, representing the Scalabrini Centre (funded by Anglo-American, the Catholic Church, and ELMA Philanthropies, a partner of the Rockefeller Foundation, the Gates Foundation and the US government), have questioned the requirement for new asylum seekers to be intereviewed on the legitimacy of their claims.

An asylum seeker whose application has been rejected by a Refugee Status Determination Officer (RSDO) may, within 30 days of receiving the decision, appeal to the Refugee Appeal Board (RAB). The RAB is empowered to either uphold, overturn, or amend the decision of the RSDO after considering the merits of the appeal. In cases deemed manifestly unfounded, the Standing Committee for Refugee Affairs (SCRA) intervenes, reviewing the decisions made by the RSDO. The SCRA may confirm, set aside, or refer such cases back to the RSDO for re-evaluation within 14 days, while also monitoring the overall decision-making process of the RSDO.

In practice however, these times may be longer, and a heavy bureaucratic load can reduce the likelihood of successful deportations.

The full implications of the court’s judgment are still being reviewed by the Scalabrini Centre’s legal team, with further details expected soon. The Department of Home Affairs has yet to provide a formal response.

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