The challenge associated with upholding the human rights of asylum seekers during the refugee status determination process in South Africa

Abstract

Foreign nationals regularly finds themselves seeking refuge in a host country such as South Africa. One would expect that due to comprehensive legislation ranging from national to international level, foreign nationals would be received in conditions appropriate to their circumstances. However, whether that is in fact the case remains to be a matter of great controversy. The main purpose of this study is to determine whether or not the South African refugee status determination process is legally compliant with its obligations under domestic, regional and international human rights law. By focusing on the refugee status determination process it could best be determined whether the process is legally compliant with the applicable legislative provisions by focusing on what occurs during the application for refugee status in practice. The research question will be answered by focusing on domestic, regional and international legislative provisions, case law, journal articles and academic textbooks amongst other sources. The primary legislative obligation that South Africa has towards asylum seekers is to provide protection to those in genuine need thereof, which requires that the country must refrain from violating their human rights. However the study has revealed that even though South Africa portrays a strong will to protect the rights of asylum seekers, the country still has a long way to go before it is actually achieved. Numerous of asylum seekers still finds it challenging to apply for asylum and to simultaneously enjoy constitutionally guaranteed human rights within the territory of South Africa. Research has established that although South Africa aims to ensure that its asylum system complies with its obligations towards asylum seekers under domestic, regional and international human rights law, there however remains multiple of instances where the country is still in violation of multiple human rights of asylum seekers.