PRESS STATEMENT | High Court Grants interim interdict against abandonment provisions of the Refugees Amendment Act

Date: 04/12/2020

Lawyers for Human Rights (LHR) welcomes the judgment handed down in the Western Cape High Court interdicting and restraining the implementation of the “abandonment provisions” in the Refugees Amendment Act and accompanying Regulations.

On 28 October 2020, LHR represented the Consortium for Refugees and Migrants in South Africa (“CoRMSA”) in an application to be admitted as amicus curiae (friend of the court) in the case of Scalabrini Centre of Cape Town v the Minister of Home Affairs & Others case no. 5441/20.

In this matter, Scalabrini sought an urgent interdict against the Department of Home Affairs preventing the implementation of specific provisions relating to the deemed abandonment of asylum applications, which were implemented on 1 January 2020 following the enactment of the Refugees Amendment Act and the accompanying Regulations.  Those provisions effectively say that an asylum application is deemed to be abandoned if an asylum seeker does not renew their documentation within 30 days of its expiration. This places asylum seekers at risk of refoulement, or return to a country where they are at risk of persecution,  contrary to domestic and international refugee law.

LHR made written and verbal submissions on behalf of CoRMSA relating to the ongoing impact of the abandonment provisions on asylum seekers in light of Covid-19, the systematic barriers in renewing documentation, and the negative impact that the provisions would have on the rights of asylum seeker and unaccompanied and separated migrant children.

Importantly, LHR argued that the impugned provisions pose a threat to child protection in South Africa.  In sum, the provisions violate the best interests of the child principle, and contravene the principle that children must be seen as individuals with their own inherent dignity and rights, not as mere appendages of their parents or caregivers.

On 30 November 2020, the Western Cape High Court handed down its judgment, interdicting and restraining the implementation of the impugned provisions pending the finalisation of the Constitutional challenge of the “abandonment provisions”.  In relation to CORMSA’s admission as amicus,  the Court  highlighted the importance of organisations that “…promote and strengthen the rights of a vulnerable group in our society”.

LHR’s head of its Johannesburg Law Clinic, Jessica Lawrence said “this is a significant outcome for asylum seekers and their dependent children who are amongst the most vulnerable of our society.  The abandonment provisions fail to consider the merits of an individual’s claim for asylum and expose asylum seekers and their dependent children to the severe consequences of being undocumented and the further risk of refoulement due to a mere administrative process.  Through our law clinics, we have identified that many asylum seekers struggle to renew their documentation due to systemic barriers in accessing the Refugee Reception Offices and not due to any fault of their own.”

Support for this case was generously provided by Terre des hommes.


For further information, please contact:

Jessica Lawrence

Lawyers for Human Rights

082 772 9857

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