‘Shocking’ judgment for Somali asylum seekers Featured

Lawyers for Human Rights (LHR) has described the Pretoria high court’s decision to dismiss an application by eight Somali asylum seekers to review their rejected applications as shocking.

The head of LHR’s strategic litigation programme, Wayne Ncube, said the organisation intended to appeal the decision. “We feel it does not reflect the facts in the papers or take into consideration judicial precedence from superior courts or the prevailing country information from Somalia,” he said.

Ncube said he couldn’t comment further, but that LHR intended to reflect on their criticism of the decision in greater depth in the appeal.

LHR acted on behalf of the eight asylum seekers, who fled Somalia and came to South Africa at various times from 2007, when the war in Somalia was at its zenith. Officials at the refugee reception offices (the first port of call for asylum seekers once they are granted entry to the country) declined all eight of their asylum applications.

They appealed, but the understaffed and under-resourced Refugee Appeals Board (RAB) again denied them.

In their appeal to the high court, the applicants highlighted a number of errors in making their case, including that the RAB had a “restrictive interpretation” of the term “persecution”. But Judge Dunstan Mlambo, the judge president of the Gauteng division of the high court of South Africa, dismissed the appeal suit.

‘Everyone under threat’

In his judgment, Mlambo said it was “immediately apparent” that the RAB had focused on when the asylum seekers were personally exposed to “conduct amounting to persecution”.
“The RAB considered whether each of the asylum seekers was exposed to any personal threat or harm leaving them with no option but to flee Somalia ... [The RAB] considered the situation insofar as it related to each applicant. In this regard, the RAB considered if the asylum seekers had other family members living with them when they decided to leave Somalia,” Mlambo said.

“The basis for this approach is clear. If the civil war was the reason for the asylum seekers to flee Somalia, clearly the violent circumstances presented by that armed conflict cannot be selective, everyone living in the affected area would have been under threat.”

On this basis, Mlambo agreed with the refugee reception offices and the RAB, and concluded that the eight asylum seekers’ lives were not threatened, nor would they be under threat should they return to Somalia.

He said the criticism levelled against the RAB’s approach to the asylum seekers’ applications was misconceived and that there was no foundation for them to argue that the RAB had applied a “restrictive interpretation of the term ‘persecution’”.

The eight applicants’ experiences of persecution in Somalia include threats, intimidation, close friends and family being killed during the civil war and being caught in the crossfire.


One of the applicants worked for a non-governmental organisation (NGO) based in the Somali capital of Mogadishu, where he started receiving threats from members of militant group Al-Shabaab. He left his job soon after this.