Access to effective refugee protection in South Africa : legislative commitment, policy realities, judicial rectifications?

Abstract

Just over two decades ago, the new South Africa (SA) adopted the Refugees Act No 130 of 1998 (RA), which incorporated the Republic’s global and regional international refugee law (IRL) obligations. For its time, the RA was progressive and advanced in terms of the scope and content of protection it provided for refugees. The coming into force on 1 January 2020 of the Refugees Amendment Act 11 of 2017 (RAA 2017) substantively and detrimentally altered the Republic’s refugee protection landscape by severely restricting access to the asylum regime and by denying asylum-seekers substantive rights that were previously available to them. The amended RA also withdraws status and protection from refugees, recognised as such under IRL. Indeed, many new provisions arguably violate both SA’s international obligations and its Constitution. Two decades after the coming into effect of the Refugees Act 1998 (RA), this article critically appraises access to effective refugee protection in SA through an international refugee law lens. It argues that SA courts were forced to straddle between the legislative promise of the RA and Executive policies designed to limit access to asylum procedures and to deny asylum-seekers substantive rights. Courts have extended constitutional protection to those physically in the Republic, irrespective of their legal status therein. They have utilised the principle of nonrefoulement, enumerated in section 2 of the RA, to bridge a protection gap between ‘asylum-seeker’ (per the RA) and ‘illegal foreigner’ (per the Immigration Act 2002), ensuing access to the asylum process by requiring the issuance or renewal of asylum permits. Courts have also utilised the constitutional right to dignity to facilitate asylum-seekers’ (partial) access to substantive rights to employment, to basic medical care, to education, and to marry South Africans, which the Executive (through directives, regulations, and other policies) sought to deny them. Yet, generally, in their asylum jurisprudence, SA courts have not utilised IRL, let alone as the primary interpretive source, and they refrained from pronouncing on policies’ incompatibility with the Republic’s international obligations in the light of the declaratory nature of refugee status. The adverse effects of the RAA renders inevitable its constitutional review. This article argues that, ‘armed’ with the much-strengthened interpretive role of IRL & International Human Rights Law (as mandated by the Refugees Amendment Act No 33 of 2008), SA courts must be prepared to declare certain RAA 2017 provisions (and its accompanying Regulations) as unconstitutional.