JOHANNESBURG - Government is legally bound to protect asylum seekers from being returned to countries where they face danger.
This is according to Immigration expert Moeketsi Seboko who says the recent Constitutional Court judgment reinforces existing laws that prevent South Africa from sending asylum seekers back to the countries they fled.
On 7 July, a Constitutional Court judgment declared certain provisions of the Refugees Act unconstitutional and invalid. The court ruled that asylum seekers could not be excluded from the asylum system solely because of procedural failures.
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Seboko explains that South Africa committed to this obligation when it signed the United Nations Refugee Convention in 1996.
“In 1996, the government signed the UN Refugee Convention. Now, one of the core principles of that convention is the principle of non-refoulement. What that means is that a host country cannot deport or return an asylum seeker to the country in which they ran from.
“That’s what we signed into and agreed to. That was later codified in Section 2 of the Immigration Act. So that became law that an asylum seeker who is in South Africa seeking asylum cannot be returned to their country of origin or birth or nationality.
“The government has no choice but to implement what they have signed into law. It's not the Constitutional Court which made this law. The Constitutional Court just interpreted and then instructed Home Affairs to implement the law.”
Seboko says the judgment does not create a new legal obligation but clarifies the government’s responsibility to implement existing law and uphold the protections afforded to asylum seekers.
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