Court Declares home affairs actions in deporting asylum seeker as unlawful

Lawyers for Human Rights is an Atlantic grantee. The South Gauteng High Court today ruled that the deportation of an asylum seeker by the Department of Home Affairs was unlawful, unconstitutional, and invalid, and ordered the Department to pay for and facilitate his return to South Africa. The asylum seeker, whose name has been withheld for security reasons, was unlawfully deported on 10 May, 2009-two days before he was to appear in court to challenge the lawfulness of his detention and to interdict deportation proceedings pending a final decision on his asylum claim. By deporting him to a country where he faced a risk to his life and security, the DHA acted in violation of both international and domestic law and the prohibition against refoulement-returning an individual to a country where his life is in danger or he faces a risk of persecution. Today’s ruling is a vindication for the rule of law.Rather than waiting for a ruling on the lawfulness of his detention and deportation, Home Affairs tried to circumvent the legal process and violate his constitutional right to appear in court by deporting him before his case could be heard, said Julie Ebenstein, with the Refugee and Migrant Rights Project at Lawyers for Human Rights (LHR). The DHA defended its actions on the grounds that immigration officials at Lindela did not know about his asylum seeker status or his pending court application.The court today found that there was no evidence to support these contentions, noting that the immigration officials had his asylum seeker permit in their possession and that the asylum seeker informed the immigration official of his status and pending court case prior to his deportation. The ruling makes clear that the DHA’s failures to follow the necessary procedures and to act in accordance with the law are unacceptable, and the DHA must account for these failures, said Ebenstein. Moreover, lack of knowledge, even if were true, does not create a free pass for the government when it fails to carry out its legal and constitutional obligations. The court will consider at a later hearing whether the DHA’s actions amounted to contempt, in light of the pending legal proceedings on behalf of the asylum seeker. The DHA also sought to defend its actions by personally attacking members of Lawyers for Human Rights.The court characterized these attacks as vexatious, unfounded, devoid of any truth, and completely unsupported by evidence.In a strongly worded rebuke to DHA, the judge found that these allegations were irresponsible and defamatory, and ordered that they be stricken from the record and that the DHA pay punitive costs for its unfounded attacks. Before his deportation, the asylum seeker’s legal challenge was brought as part of a series of individual cases by LHR challenging the unlawful arrest and detention of asylum seekers. The previous cases had resulted in the release of the applicants, either through a court order, or after Home Affairs agreed to release the detained person on the morning of the court hearing, following months of unlawful detention. According to Ebenstein, Before today’s ruling, the Department had a pattern of illegally detaining asylum seekers. This decision constitutes a day of reckoning for Departmental policy.