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Department of Home Affairs continues to ignore Supreme Court ruling

The South African Government has a questionable record when it comes to upholding rulings made by the country's courts. Peter-John Pearson explains how the Department of Home Affairs has ignored a Supreme Court of Appeals ruling and, by doing so, exposed already vulnerable people to even greater risk.

Despite the ruling of the Supreme Court of Appeals, in September 2017, ordering the Department of Home Affairs to re-open and maintain the Refugee Reception Centre (RRO) in Cape Town, as of 31 March 2018 there has been no progress on this matter almost a fortnight later.

The Court held that the closure was ‘irrational and unlawful’ and that the Director General ‘had ignored relevant factors when making the decision.’ The Cape Town RR0, which was closed in 2012, was at that time the second busiest RRO in the country.

The Cape Town RRO was established in 2000 as one of five RROs in terms of sec 8.1 of the Refugees Act. These important offices sought to facilitate the lodging of claims, provide places for personal determination of status interviews, offer a venue for renewal of documentation and a host of other important administrative procedures and basic services that facilitate the well-being, stability and dignity of asylum seekers and refugees till final determinations are made about their future. It also allows that those asylum seekers with documentation issued by other RROs but now residing in Cape Town, could have their processes attended to in Cape Town.

The closure of the Cape Town Office along with those in Johannesburg and Port Elizabeth resulted in unnecessary hardships and expenses on a considerable proportion of the itinerant and largely vulnerable peoples. It has, in turn, also resulted in the over-burdening of and high work-loads at the remaining offices. Many are questioning the quality of decision-making and work generally being delivered by such overstretched facilities. The inability to provide reasonable access to the administrative machinery has also resulted in significant backlogs. So for example there is a backlog of approximately 130,000 cases before the Refugee Appeals Board.

The faith based Scalabrini Centre launched two legal challenges which ultimately resulted in the 2017 decision. Amongst the reasons given for the decision was the fact that there were too few RROs to deal adequately with the demand, that there was an error in law with regard to the legality of satellite offices and that control of the ‘asylum process’ was beyond the scope of the Refugees Act. The Supreme Court of Appeals also instructed the Department of Home Affairs to furnish the Court with monthly updates on the progress regarding the re-opening of the RRO.  In as far as we can ascertain, this has not been complied with.

The Department of Home Affairs subsequently sought leave to appeal to the Constitutional Court who declined to hear the case as they deemed that there was very little chance of success. It should be noted that the Courts found the closures of the RROs in Johannesburg and Port Elizabeth unlawful on fundamentally similar grounds. Despite the ruling of the Court, the RRO in Port Elizabeth remains closed.

Unconfirmed reports suggest that the failure to re-open the RROs is due to the fact that there has been no suitable accommodation found for the  offices yet.

One of several concerns that loom over the closure of RROs and the increasing administrative difficulties is that it has the effect of undermining that basic principle of migration. This basic principle holds that irrespective of the legal status of the person their dignity should be upheld and respected under all circumstances. It also states  that no process or practice should compromise this principle or destabilise the already vulnerable circumstances that such people find themselves in. It should not contribute, either, to a disrespect for their fundamental human rights.

The creeping culture of disrespect for vulnerable persons has to be countered with resolve and the practices around displaced persons needs to be treated as a benchmark for our democracy.

Image: Dept of Home Affairs

* The opinions expressed here by Spotlight.Africa contributors and editors are their own and not official statements of the Society of Jesus in South Africa or of the Catholic Church unless explicitly stated.