SIHMA | Scalabrini Institute For Human Mobility In Africa

Asylum seekers access to protection: developments in South Africa

Published by: Irene de Vos and edited by James Chapman and Lee Anne de la Hunt

The reality of asylum seekers’ journeys is that they are forced to risk their lives to save their lives. Asylum seekers face increasingly sophisticated barriers to access. They undertake risky voyages. Almost by definition, asylum seekers are not in a strong position to access their rights under the refugee regime. This article considers the jurisprudential attempts to increase access to the protections on offer at the end of that journey. At every opportunity, our courts have increased access to those opportunities. Without fail, our courts have shown a commitment to removing blockages and improving access to the refugee system. When Home Affairs contended that asylum seekers ought to be detained pending their asylum claim, the courts rejected that approach as it limits access to the protections a orded under the refugee regime. When Home Affairs refused an asylum seeker an opportunity to apply for asylum because the asylum seeker delayed the application, the courts rejected the premise that a delay in seeking asylum closes the door for an asylum seeker. When Home Affairs sought to limit the physical places where asylum seekers could apply for asylum, the courts mandated they be re-opened. The article sets out how this jurisprudence has built on each previous case, creating the scaffolding necessary to support those in the precarious position of having to apply for asylum. Lastly, despite the persistent and robust message sent by the judiciary, this article considers the potential claw-back effect on these developments by the amendments to the Refugees Act that came into force on 1 January 2020. Download Briefing Paper:
Asylum seekers access to protection: developments in South Africa