Xenophobia’s high price — why ConCourt’s defence of refugees matters for us all

It is remarkable the extent to which a judgment of the Constitutional Court dealing with refugees should be so misread, deliberately or by virtue of sheer legal incompetence, that it could cause so much disquiet, unrest and an egregious attack on our highest court.

A fair reading of this judgment should have prompted congratulations to an independent court which understands the value of constitutional rights, whether for citizens, residents or refugees. The Constitutional Court has followed the normative framework underpinning the Constitution, which this year will celebrate its 30th year.

Sadly, that has not happened. The analysis which is set out below is written for one major reason: to explain the danger which organisations such as “March and March” pose to the future of constitutional democracy in South Africa and the alarming inability or unwillingness of the criminal justice system to deal with people who provoke xenophobic violence at but a glance at 49 carefully reasoned pages.

The future of the court, at least in part, depends on the way its judgments are presented in public discourse.

This case reached the Constitutional Court, which was asked to confirm an order made by the high court, declaring as inconsistent with the Constitution a series of sections of the Refugees Act of 1998 and Regulations which were passed as a consequence thereof.

In the high court, the argument of the applicants was to attack the impugned provisions which disbarred foreign nationals seeking asylum in South Africa if they held an adverse immigration status solely as a result of their non-compliance with procedural requirements.

The basis of the applicants’ case was predicated on an unjustifiable violation of the Constitution and the right of non-refoulement (prohibition of forcible expulsion or return) in terms of established international law as well as Section 2 of the Refugees Act.

Before these impugned provisions were introduced into law by way of amendments to the Refugees Act and its Regulations, delay or irregular entry did not carry such drastic adverse consequences for an applicant seeking refugee status. An individual who presented himself or herself at a Refugee Reception Office (RRO) was permitted to lodge an asylum application and was then issued with a Section 22 visa pending a final determination of the merits of its claim.

A Refugee Status Determination Officer (RSDO) could take account of delay as it related to credibility and authenticity. But it was not a decisive consideration and did not operate as an automatic bar to accessing the asylum process.

Summary of effect of new process

That is precisely, however, what was achieved by the current statutory scheme. The court summarised the effect of the new process as follows:

Where an applicant is not in possession of an asylum transit visa as contemplated in s 23 of the Immigration Act, that applicant must be interviewed by an immigration officer to ascertain whether “valid reasons” exist for not her being in possession of such a visa.

Secondly, under Regulation 8 (3), if, when applying for asylum at an RRO, the applicant fails to produce a valid visa issued in terms of the Immigration Act, she has to show “good cause” for the illegal entry or stay before being permitted to apply for asylum.

Finally, once an applicant is properly before an RSDO in terms of s 4 (1), an asylum seeker does not qualify for refugee status if that officer has reason to believe that the applicant has committed an offence in relation to a travel or sojourn document or is unable to provide “compelling reasons” for crossing the border other than through a designated port of entry or cannot provide “compelling reasons” for failure to report to an RRO within five days of entry. 

In evaluating the constitutionality of these provisions, the court, by way of a unanimous judgment of Judge Steven Majiedt, found that the amended sections were no more than procedural filters and these bore “no resemblance in kind or gravity to the accepted and narrowly circumscribed exceptions to non-refoulement. Article 33 of the 1951 Refugee Convention allows for a departure from non-refoulement only where there are reasonable grounds to regard a refugee as a danger to the security of the host state, [or] a danger to the community having been convicted of a particular serious crime. 

Turning to the effect of s 21 (1) B read with Regulation 8 (3), an applicant has to show valid reasons to an immigration officer for not being in possession of an asylum transit visa. The regulation 8 (3) then requires good cause to be shown for an illegal entry or stay. A regulation 8 (3) inquiry is conducted by an immigration officer. Both the section and the regulation are silent as to who in fact must conduct this inquiry. There is neither clear legislative guidance as to the identity of the decision maker nor the contents of the inquiry. 

In effect, a form of unfettered discretion was given to an unspecified person to determine the very fate of the applicant. Turning to s 4(1) of the Act, the applicant has to show compelling reasons for entering the Republic other than through a designated port of entry or for failing to report to an RRO within five days of entry. The absurdity of this, as noted by the Constitutional Court, is that an asylum seeker who is facing traumatic consequences for any decision taken insofar as his or her future is concerned has to face the same questions, perhaps two or even more times, and then show good cause or valid reasons as to how to meet the requirements. 

It is noteworthy that “good cause or valid reasons” are not specified in the Act. There is no statutory guidance as to the criteria that must be satisfied by an applicant in order to meet the threshold of the Act and the regulations. 

The bifurcated process has a further consequence. An applicant manages to reach an RSDA, and it is decided that this applicant has failed to provide compelling reasons for the delayed reporting of entry. This applicant is entitled to written reasons and a right to appeal. But if the issue comes before an immigration officer in terms of s 21(1) (b) of the Act, the applicant who has been prevented from entering the asylum process is not entitled to any written reasons or has any right of appeal, despite the fact that enquiry may well be substantially the same. 

Vague procedural requirements

In summary, the analysis provided by the Constitutional Court shows that these impugned provisions prevent asylum seekers from the benefit of a “merits-based” assessment of a claim to refugee status on the basis of vague procedural requirements. An applicant for refugee status may never have a claim substantively assessed. In turn, this violates the principle of non-refoulement and a range of fundamental rights contained in the Constitution, including the rights of children. 

Viewed in this light, the analysis by the Constitutional Court of the imposed legislation is devastating. The Act and regulations clearly are at war with our constitutional obligations and our obligations under international law. 

The court has commendably asserted the importance of the idea that rights extend not only to citizens. The importance can be illustrated by an examination of the United States of America, where the combination of the Trump Administration’s xenophobia and the obscene deference of the Supreme Court to the President (that is specifically to President Trump) which permit egregious decisions of the Trump Administration, which create a society where vast numbers of human beings are not treated as human. 

By contrast, in South Africa the court holds the legislature and the executive accountable to the provisions of the Constitution. We should be doffing our caps to the Constitutional Court for protecting us from a Trump-type climate.

Movements like March and March, if they are successful, will rapidly ensure that ICE-type policing would be the order of the day in South Africa, with naked xenophobia replacing constitutional protections. It is deeply disturbing that this phenomenon continues to grow in South Africa, as are the attacks on the court.

The impunity given to leaders of organisations such as March and March raises the question of the commitment of the Executive to the values of the Constitution. DM