Immigration Bill: Lawyers for Human Rights Press Release

Lawyers for Human Rights criticizes DHA's use of unlawful measures to exclude refugees from SA (press release)
The Department of Home Affairs has begun implementing one of the most controversial elements of the Immigration Amendment Bill—the use of pre-screening procedures for asylum seekers at the border. While members of the Department have issued conflicting statements over what this provision will mean in practice, the Minister has stated that asylum seekers will be subject to the ‘first safe country’ principle, and that those individuals who passed through other countries where they could have applied for asylum will be turned away at the border.

Nothing in South African law currently provides for this practice, and our courts have ruled to the contrary, holding that an individual cannot be denied asylum in South Africa because he or she first passed through another country. But there are increasing reports of individuals being turned away at the border on this basis, without any proper determination of their need for asylum protection.

During a National Assembly session on Wednesday 23 March 2011, a member of the Democratic Alliance asked the Minister to provide assurances that she would stop this practice in order to bring South Africa in line with its human rights obligations. The Minister however refused to give such an assurance.

‘While heated debate continues around the proposed amendments to the Immigration Bill, the Minister of Home Affairs has rejected the important role that such debate plays in a parliamentary democracy by implementing some of the amendments without waiting for them to become law,’ said Kaajal Ramjathan-Keogh of Lawyers for Human Rights.

The Minister’s refusal to end this practice contravenes both domestic and international law. Said Ramjathan-Keogh: ‘Home Affairs is not above the law, and may not institute practices that fall outside of existing legal provisions, particularly when the practice is still being debated through the proper legislative procedure. Such procedures are meaningless if the Department chooses to circumvent them.’

Internationally, South Africa is bound by the UN and African Refugee Conventions, which prevent a country from returning an asylum seeker to a country where he or she may face persecution. The practice of turning away individuals at the border violates this non-refoulement principle. In January this year, the European Court of Human Rights found this same practice illegal, ruling that returning an individual to a country whose asylum system was deficient constituted ‘indirect refoulement.’

According to Ramjathan-Keogh, ‘Individuals are being turned away at the border without proper procedures, and risk being unlawfully returned to situations of grave human rights abuses.’

For more information, please contact Kaajal Ramjathan-Keogh at kaajal@lhr.org.za  or Jacob van Garderen at Jacob@lhr.rg.za / 
http://www.lhr.org.za/news/2011/press-release-lhr-criticizes-dhas-use-unlawful-measures-exclude-refugees-sa