The Constitutional Court Hears a Landmark Case on South Africa's International Law obligations as they pertain the Rights of Asylum Seekers

Where it concerns issues relating to the protection of asylum seekers and refugees the South African Constitution and international law (which includes customary international law) unequivocally promote, protect, and uphold the principle of non-refoulment – which is binding on all states that are party to the UN's 1951 Refugee Convention (which South Africa acceded to in 1996) and is the central protection for refugees and asylum seekers, both in South Africa and internationally.

Article 31 of the Convention provides that a member state shall not impose penalties on asylum seekers/ refugees, "on account of their illegal entry or presence, coming directly from a territory where their life or freedom was threatened or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence."

The Department of Home Affairs (Responds) interpret Article 31 and the reference to 'penalties' to mean that asylum seekers or refugees who are not able to show 'good cause' are disqualified from applying for asylum. To this end, they enacted and gave effect to the impugned provisions to require asylum seekers who entered South Africa irregularly or failed to report to a refugee reception office within five days, to satisfy an immigration officer that there are "compelling reasons" or "good cause" for the non-compliance – failing which they are disqualified from applying for refugee status, irrespective of the merits of their asylum claim. Once denied the opportunity to apply, the asylum seeker is vulnerable to arrest, detention, and eventually deportation to the country of origin – to almost certainly face persecution and threat to life. 

The Applicants (Scalabrini) and our clients (Amnesty International, the Global Strategic Litigation Council for Refugees, and the International Detention Coalition) submitted that this interpretation of Article 31 and the meaning of 'penalty' is flawed and constitutionally impermissible – as it is contra the principle of non-refoulment and the very essence of Article 31.

The upshot of our clients' submissions (as submitted in today's hearing) is that arresting, detaining, and then eventually deporting asylum seekers/ refugees to the country of origin impermissibly undermines the right to seek and enjoy asylum and therefore amounts to something more than a penalty – as it effectively bars affected and deserving asylum seekers from applying entirely. Accordingly, so our clients submitted, these impugned provisions should not be allowed to stand as they are in contravention of the Constitution and at odds with South Africa's international law obligations and would lead to untold gross human rights violations by returning vulnerable individuals to countries where they would face persecution and threat to life.