ConCourt rules Refugees Act doesn't place time limitation on asylum applications

Rwandan national Alex Ruta had applied to have SCA ruling overturned

ConCourt rules Refugees Act doesn't place time limitation on asylum applications

20 December 2018

The Constitutional Court on Thursday ruled that the Refugees Act does not place a time limit on when asylum seekers must apply for asylum once they have arrived in South Africa.

The apex court was considering the constitutionality of the Refugees Act after Alex Ruta, a Rwandan national who entered the country unlawfully in December 2014, applied to have a Supreme Court of Appeal (SCA) ruling overturned.

"At issue was whether a prospective asylum seeker should be allowed to apply for asylum at any time they might express an intention to do so after arriving in the country, even if they have delayed," the Constitutional Court explained in a statement on Thursday.

Ruta initially approached the High Court when the Department of Home Affairs moved to deport him after he was convicted and imprisoned for traffic violations. He was undocumented when he was first arrested in March 2016.

Ruta fought back by formally applying for asylum under the Refugees Act, citing that his life would be in danger if he returned to Rwanda. This application was denied by the minister of home affairs as Ruta had taken "too long to do so".

"With his deportation imminent, Mr Ruta applied to the High Court for an order interdicting his deportation and granting his release so he could apply for asylum under the Refugees Act," the Constitutional Court noted in its ruling.

The High Court granted this order.

The home affairs ministry headed to the SCA arguing that Ruta had failed to apply for asylum without delay. The SCA reversed the High Court judgment in favour of Ruta.

The SCA, in addition, also found that Ruta was disqualified from receiving a refugee permit as he had been convicted of a crime and was in contravention of the Immigration Act when he entered the country unlawfully.

In a unanimous judgment, Justice Edwin Cameron overturned the SCA ruling stating that the Refugees Act is clear that delay does not disqualify Ruta from seeking asylum.

"The only grounds on which an application may be refused are those set out in the Refugees Act itself.

"The Refugees Act embodies a fundamental principle under international law – in terms of which one fleeing persecution has the right to seek and enjoy asylum. This principle is the cornerstone of refugee law and a significant doctrine of human rights law," the Constitutional Court ruled.