DO APPLICATION DELAYS AND CRIMINAL RECORDS AFFECT ASYLUM SEEKING?
The asylum system in South Africa is regulated under the Refugees Act 130 of 1998 (the Act), and informed by adopted Resolutions and Conventions of the United Nations such as the 1951 Convention Relating to the Status of Refugees, as well as International Humanitarian law.
As a point of departure, section 3 (a) (b) and (c) of the Act provides for the categories of persons recognised as worthy of recognition and protection under the asylum system in South Africa as the following;
- owing to a well-founded fear of being persecuted by reason of his or her race, tribe, religion, nationality, political opinion or membership of a particular social group, is outside the country of his or her nationality and is unable or unwilling to avail himself or herself of the protection of that country, or, not having a nationality and being outside the country of his or her former habitual residence is unable or, owing to such fear, unwilling to return to it; or
- owing to external aggression, occupation, foreign domination or events seriously disturbing or disrupting public order in either a part or the whole of his or her country of origin or nationality, is compelled to leave his or her place of habitual residence in order to seek refuge elsewhere; or
- is a dependant of a person contemplated in paragraph (a) or (b).
Looking at the above the underlying factor is that there should be imminent danger or threat to one’s livelihood and survival, and therefore it is expected that in the event that one wishes to apply for asylum in the Republic, such person must establish and communicate such intention as soon as possible upon presenting themselves at a port of entry.
What then becomes of a situation when the person intending to apply for asylum takes their time and only indicates their desire to apply much later, let alone after being apprehended?
These were the issues in the case of Ruta v Minister of Home Affairs (2018) ZACC 52.
Mr Ruta who is a Rwandan national, entered South Africa illegally through Zimbabwe in December 2014. In March 2016 he was arrested in Pretoria for traffic violations, convicted and sentenced to imprisonment. While in prison the Department of Home Affairs (DHA) launched processes to deport him, but he indicated that he wants to apply for asylum as he faces death in Rwanda. The DHA denied him that opportunity. Mr Ruta then made an application to the High Court to stop the deportation. The DHA opposed the application saying he is a convict (traffic conviction) and that it is too late for him to apply for asylum. The High Court made its finding in Mr Ruta’s favour.
The DHA appealed to the Supreme Court of Appeal, which upheld that Mr Ruta failed to apply for asylum as soon as possible as required by the Refugees Act and the Immigration Act, he is a convicted criminal, and he entered South Africa illegally which means he must be dealt with by the Immigration Act and not the Refugees Act. The minority judgment however held that only crimes committed outside SA applied and any person who has expressed intention to apply for asylum must not be precluded from doing so. The Supreme Court of Appeal consequently overturned the ruling of the High Court.
Mr Ruta then appealed to the Constitutional Court. The Constitutional Court was asked to decide on whether;
- An asylum seeker is allowed to apply for asylum at any time (as opposed to as soon as possible).
- Section 4 (1) (b) of the Refugees Act applied to criminal convictions within South Africa.
The Constitutional Court in a unanimous judgment upheld that the Refugees Act itself is clear that delay does not disqualify an application for asylum. Further, the exclusion of criminal convictions as per section 4(1)(b) of the Refugees Act, does not apply to offences which were committed in South Africa. The appeal of Mr Ruta therefore succeeded.
Immigration Law Associates is of the view that this judgment is correct. Section 4 (1)(b) is clear that the intention of the legislature was to effect that in the event that an asylum seeker indicates an intention to apply for asylum in South Africa, considerations must be looked into about such person’s criminal status from the country he is coming from, not his destination country as it will be anticipated that he has not yet fully settled in. The words “if committed in the republic” must be read to mean “had the crime been committed in the republic.” The Supreme Court therefore erred in capturing the intention of the legislative provision.
Our advise however, is that persons wishing to seek asylum is South Africa, must enter the country legally at ports of entry and declare their intention as is required, as soon as possible, and refrain from criminal activity as these will only hamper prospects of securing other status in future e.g permanent residence. Approaching the Courts to enforce rights against deportation is costly and time consuming.
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