PRESS STATEMENT | Victory in the Supreme Court of Appeal for asylum seekers and improved decision making within the asylum system

Date: 28/09/2021

On 19 August 2021, the Supreme Court of Appeal (SCA) heard arguments from Lawyers for Human Rights (LHR) on behalf of the Somali Association of South Africa and eight other asylum seekers, who fled Somalia due to persecution and civil war, regarding systemic errors of law in the Refugee Appeal Board’s (now known as the Refugee Appeals Authority of South Africa) decision making process.

LHR highlighted to the SCA that through their application for asylum, the eight appellants experienced woefully inadequate decision-making, with each applicant’s decision repeating the same errors of law, verbatim, down to the same spelling and grammatical mistakes.  Additionally, each of the applicants’ decisions were tainted by many of the same errors that have been previously condemned by the courts, including the Constitutional Court.  LHR further submitted that the experience of experts who provide legal assistance to asylum seekers in South Africa together with anecdotal evidence obtained through LHR’s law clinics illustrate that the appellants’ experiences are not unique but rather reoccurring and are experienced by many asylum seekers across South Africa.

On 23 September 2021, the SCA handed down its judgment in favour of the appellants.  The tone of the judgment is set by an opening quote by Pope Francis which holds that “[m]igrants and refugees are not pawns on the chessboard of humanity. They are children, women and men who leave or who are forced to leave their homes for various reasons, who share a legitimate desire for knowing and having, but above all for being more.”  Throughout the judgment, the SCA distinctly brings into question the legality and fairness of the process adopted by the Refugee Status Determination Officer (RSDO) and Refugee Appeal Board (RAB) when determining the eight asylum seekers’ applications for asylum.

The SCA confirmed that “it is abundantly clear that the appellants are correct in their submissions, that neither the RSDO nor the RAB considered the application of section 3(b) of the [Refugees] Act.”  The Court further held that “the appellants also justifiably complained that the RSDOs and the RAB took an impermissibly narrow view of persecution when it considered the applications for refugee status.”  Additionally, the SCA emphasised that State authorities are required to ensure that constitutional values, including those that embrace international human rights standards set by international conventions and instruments in relation to those seeking asylum, adopted by South Africa, are maintained, and promoted.

The SCA further reminds us not to forget our humanity, quoting author Khaled Hosseini who is reported to have said “[r]efugees are mothers, fathers, sisters, brothers, children, with the same hopes and ambitions as us – except that a twist of fate has bound their lives to a global refugee crisis on an unprecedented scale.”  Jessica Lawrence, an attorney for LHR, stated that “this judgment is a significant victory for all asylum seekers in South Africa.  At a time where we are seeing severe restrictions of refugee and asylum seekers’ rights as well as refugee protection in South Africa, in violation of international law and the Constitution, it is an important reminder to the State of its obligations towards refugees.”

For more information contact:

Jessica Lawrence, Attorney

Phone: 011 339 1960 / 082 772 9857



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