Western Cape High Court blocks deportation of Somali refugee awaiting status renewal

The Western Cape High Court has interdicted the department of home affairs from arresting, detaining or deporting Somali refugee Hasam Mahamad Ali while he awaits an opportunity to renew his refugee status.

The court ordered home affairs to provide Ali’s attorneys with a written appointment within 10 court days for him to attend the Cape Town Refugee Reception Office and apply for the renewal of his refugee status.

The order further allows him to remain in South Africa while his application is being considered and until a final decision has been made on its merits.

According to court papers:

• Ali first arrived in South Africa in 2009 after fleeing Somalia because of political persecution. He applied for asylum and was granted refugee status on May 12 2009, valid until May 12 2011.
• In 2013 he voluntarily returned to Somalia but came back to South Africa in 2015, citing the deteriorating security situation in his country. He told the court that he and his family had been threatened by al-Shabaab, which allegedly demanded that they join its fight against the Somali government or risk being killed.
• In 2015 he reapplied for asylum and was granted refugee status by home affairs from November 2 2015 to November 2 2019.
• The court papers state that between 2019 and 2022, he repeatedly tried to renew his refugee status but was turned away from the Gqeberha Refugee Reception Office. At the time, the Cape Town Refugee Reception Office was not processing refugee status matters and only resumed such services in 2023.

When Ali subsequently went to the Cape Town office, he was refused entry because he did not have a court order or authorisation from an immigration officer. He approached the Western Cape High Court, saying he was left in a vulnerable position and faced the risk of arrest, detention or deportation before his immigration status could be properly determined.

Home affairs opposed the application, arguing that the mere risk of arrest, detention or deportation did not amount to irreparable harm.

The department submitted that though he was an asylum seeker who could attend a refugee reception office, he had no basis for the relief he was seeking and would not suffer imminent harm if the interdict was refused

The department also argued that Ali did not meet the requirements for an interdict because his refugee status had expired in 2023. It further submitted that he had waited two years after the expiry of his status before approaching the department to regularise his position.

Home affairs also questioned his fear of returning to Somalia, arguing that his claim of persecution was implausible because he had voluntarily returned to the country in 2013.

The department submitted that though he was an asylum seeker who could attend a refugee reception office, he had no basis for the relief he was seeking and would not suffer imminent harm if the interdict was refused.

It further argued that allowing him to apply for refugee status in terms of section 24 of the Refugees Act would amount to the court dictating to home affairs how to manage its administrative procedures.

The department also relied on the principle of non-refoulement, which prohibits the arbitrary return of a person to a country where they may face persecution or serious harm, and argued that Ali had failed to establish the requirements for a final interdict. It asked the court to dismiss the application with costs.

Acting high court judge Sharon Mthimunye, however, ordered that Ali:

• attend the Cape Town Refugee Reception Office;
• provide any information and documentation reasonably required of him; and
• co-operate with the lawful administrative process.

Mthimunye ordered the department to receive and assist Ali and to lawfully determine the appropriate process under the Refugees Act for regularising his position. This may include:

• the extension or renewal of his existing documentation;
• the re-evaluation of his refugee status, any cessation or withdrawal process; and
• the lodging and determination of an asylum application, or any other process lawfully applicable under the act.