Shelter from Persecution: Non-Refoulement and the Promise of Protection in South African Refugee Law
Article by: Shivani Naidoo
Non-refoulement is a fundamental principle in refugee law, protecting refugees and asylum seekers from being returned to countries where they may face persecution, torture or other serious human rights violations. It is recognised in international human rights instruments such as the Universal Declaration of Human Rights and the Refugee Convention and imposes an obligation on all countries to provide protection to individuals regardless of their formal refugee status, based on factors like race, religion, nationality, social group or political opinion. This principle is exemplified in South Africa’s Refugees Act of 1998 (“the Refugees Act” or “the Act”), which prohibits the expulsion or return of refugees and asylum seekers to a country that puts them at risk of persecution or human rights violations. It establishes a legal framework for determining refugee status, granting asylum and providing protection to those in need.
New research shows that South Africa, being the only African country formally extending refugee protection to the LGBTI+ community, is facing challenges in fulfilling the promises encompassed in the Refugees Act. Barriers include misapplications of laws, homophobia, transphobia and corruption in the Department of Home Affairs. The research reveals a diverse population facing difficulties in legal status and employment, and vulnerability to discrimination and violence. Additionally, over 100 asylum seekers, who had been camping outside the United Nations High Commissioner for Refugees (UNHCR) offices in Pretoria, were removed by South Africa upon a court order obtained by the municipality. The asylum seekers, who had experienced xenophobic violence, were requesting relocation to other countries. The eviction was met with protests and some voluntary departures. The UNHCR stated that relocation falls outside its mandate. The failings of South Africa’s asylum application system are especially evident in the following recent cases:
Ashebo v Minister of Home Affairs  ZACC 16
Mr Ashebo (applicant), an Ethiopian national, is deemed an “illegal foreigner” under the Immigration Act. He was detained and awaiting trial and deportation in South Africa after entering illegally from Zimbabwe in 2021. Mr Ashebo claimed persecution by his home country’s ruling party due to his political and religious beliefs, resulting in the death of his family. He sought to challenge the High Court’s decision to strike his urgent application from the roll and sought protection under the Refugees Act. The court found that he should have the opportunity to apply for asylum and granted an order preventing his deportation until his asylum application is finally determined. The Minister of Hone Affairs (respondent) was directed to facilitate the process of his release within 14 days from the Kgosi Mampuru II Correctional Centre or alternatively, to lawfully detain him under the Criminal Procedure Act 51 of 1977.
Faqirzada v Minister of Home Affairs  ZAGPPHC 139
During the Taliban’s assumption of power in Afghanistan after the US’s withdrawal, individuals who had supported the US were targeted for elimination by the Taliban. The applicants, fearing persecution and death, fled from Afghanistan to Pakistan and then travelled through Zimbabwe en route to South Africa to seek asylum. In terms of the Refugees Act, a foreign national can only apply for asylum when he or she is first granted an Asylum Transit Visa. However, a Home Affairs office manager at the Beitbridge port of entry refused to process these Asylum Transit Visas on the basis that the applicants’ preference to seek asylum in South Africa was illegitimate. The court found that the official had acted beyond his authority by denying the visas and that the applicants faced imminent danger and fear of deportation to Afghanistan. The court granted an interim order directing the department to facilitate their asylum application.
Scalabrini Centre v Minister of Home Affairs  ZAWCHC 28
Scalabrini Centre (applicant), a non-profit organisation assisting migrant and displaced communities, challenged sub-sections 22(12) and (13) of the Refugees Act and the associated regulations that considered asylum seekers who did not renew their visas within one month to have abandoned their asylum applications. After the abandonment, the matter is referred to the Standing Committee, where asylum seekers are technically allowed to present their arguments. However, there are no explicit guidelines in the law or in practical implementation regarding the process for submitting these representations. Undocumented asylum seekers then face the risk of arrest, detention and deportation. If abandonment is approved by the Standing Committee, asylum seekers are treated as “illegal foreigners” and handed over to immigration officials for deportation. The question arose whether these provisions violate the right to non-refoulement under international law and the Constitution. The lack of clear procedures for making representations and the risk of arrest, detention and deportation for undocumented asylum seekers was discussed. The court found that the provisions violated the principle of non-refoulement, as well as the rights of children and the obligation to provide protection to refugees and asylum seekers. The court declared the impugned provisions inconsistent with the Constitution, and therefore declared them invalid.
The necessity to safeguard the dignity and rights of refugees in South Africa, in accordance with our international obligations and Constitution, calls for a comprehensive review of resource allocation, service delivery, access to information and support, the existing backlog and the flawed asylum application system.