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Asylum Seekers Facing Rejection Have Hope

- Featured article by LAWYERS-ONLINE.CO.ZA - April 2019

It may be surprising to hear that, despite being what many consider a safe haven in Africa, South Africa actually rejects between 90 to 95% of asylum applications – not very hopeful if your home country is no longer a safe space for you and your family.

Of course, this means that the chances for receiving asylum in South Africa may be slim to none. However, the Constitutional Court in 2018 ruled that asylum seekers who have had their status as a refugee denied are still allowed to apply for a residence visa in accordance with the Immigration Act 13 of 2002. This means that asylum seekers may still enter the country, but may not have all the rights of a refugee. This ruling came about after three asylum seekers who had their applications rejected decided to pursue the matter to the highest authority – as one should always do when seeking change in a democracy!

The court also ruled in a separate case, that it would be wrong under the principle of “non-refoulement” to send someone back to a place where they would be in danger, and therefore temporary permits must be extended as long as their cases are under judicial review. It appears that the rights of asylum seekers are finally getting some serious attention.

Before we go ahead, let’s take a quick look at what the legislation has to say about refugees. In South Africa, this comes down to the provisions of the Refugees Act 130 of 1998, which sets out what a refugee is, how to apply for asylum, how to appeal the process and how to comply with international laws regarding the matter. The definition for a refugee as per this act is a person with a well-founded fear of persecution for their race, religion, tribe, political affiliation or nationality.

So why the trouble seeking asylum? Unfortunately, the Department of Home Affairs, Refugee Reception Offices and the Refugee Appeals Board are woefully understaffed and as a result, many applications are rejected or take a considerable amount of time to process. This is of course not ideal when one is in desperate need of a new start away from persecution – as refugees often are.

More and more people are desperately seeking a new life away from political strife and persecution and South Africa seems like a good option. Perhaps that is why so many applications are rejected, as the number of refugees rises, so the number of rejections.

But with these new rulings by the Constitutional Court, there appears to be a reprieve for those in need. We are certainly going to keep an eye on what happens with the law regarding asylum seekers in 2019 and will keep you updated too.

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