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.

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:

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: