Undocumented man applying for refugee status can remain
in SA, Concourt rules
18 January 2022 Groundup
Court ruled that a delay in
applying for refugee status does not affect a person’s right to apply for
recognition as a refugee
The Constitutional Court
has ordered the South African government not deport an Ethiopian national until
the finalisation of his application for recognition as a refugee. ![]()
The judgment, delivered in December, is important for
undocumented immigrants who have not timeously applied for refugee status.
In 2020 Desta Abore, an
Ethiopian national, was arrested for entering and living in South Africa
without the relevant documents in violation of the Immigration Act. He pleaded
guilty at the time and the Eshowe Magistrates Court sentenced him to 50 days in
prison or to pay a R1,500 fine. He paid the fine, but was not released.
Abore then approached the
Durban High Court for an order declaring his detention unlawful. He also wanted
to prohibit the government from deporting him until he had been allowed to
apply for refugee status under the Refugee Act.
In court papers Abore said
he had fled Ethiopia because he was involved in political activities and faced
the death penalty. He said that he entered South Africa illegally through
Zimbabwe.
Abore said it was always
his intention to apply for asylum and seek refugee status. He said he was
unable to not apply for asylum immediately because of the Covid lockdown and
then long queues at the Refugee Reception office in Durban.
It was never made clear
when he actually entered South Africa because he gave contradictory dates to
the court, and his attorneys, about when he entered the country.
The Durban High Court
granted a temporary order prohibiting the government from deporting Abore until
he had an opportunity to argue why he should be allowed to apply for refugee
status. However, Abore failed to take steps to finalise the case.
The interim order lapsed,
and the government successfully applied for a warrant for his detention pending
his deportation to Ethiopia. He was then detained in the Lindela repatriation
centre.
Abore then applied to the
High Court in Johannesburg for his immediate release so that he could apply for
refugee status.
High Court dismisses
Abore’s application
In March 2021, the High
Court in Johannesburg dismissed Abore’s application to be released. The court
also dismissed the argument that his detention was unlawful.
In court papers, Judge
Leonard Twala stated that Abore should have applied for asylum soon after
entering the country. It was not sufficient for him to only tell the government
that he intended to apply for asylum after being arrested.
“The applicant is not
approaching this court with clean hands since he has been living in the
Republic for four years without the necessary documentation. It is therefore
not open to the applicant to demand that he be afforded the protection of the
law because that would be tantamount to rewarding him for breaking the law”,
Twala said.
Abore also never told the
authorities after his arrest that he would be persecuted if deported to
Ethiopia and he never told the magistrate that he wanted to seek asylum. Judge
Twala said that Abore could not rely on the fact there were long queues at the
Refugee Reception office to justify his failure for not applying for refugee
status timeously.
The High Court also
rejected the argument that Abore’s detention was unlawful. This was because his
detention complied with the Immigration Act, Twala ruled.
Abore was released in June
2021 after the warrant authorising his detention at Lindela had lapsed. After
his release, the Department of Home Affairs told him to leave the country by
July or he would be deported.
Abore then brought an
application to appeal the High Court order directly to the Constitutional
Court. He also obtained an order from the High Court prohibiting his
deportation until his Constitutional Court appeal was finalised.
The Appeal
Abore argued that the High
Court failed to consider that once he said he had an intention to apply for
asylum, he had a right to be released and given a temporary permit to allow him
to apply for refugee status. He said that it was irrelevant that he lived in
the country illegally for several years before he stated that he had an
intention to apply for refugee protection.
Abore told the court he
would suffer irreparable harm if he was not allowed to apply for asylum. This
was because he would potentially face the death penalty if he was deported to
Ethiopia.
The Minister of Home
Affairs opposed the appeal. He argued that Abore gave contradictory dates about
when he entered the country and failed to take immediate steps to seek asylum.
The minister also argued
that recent amendments to the Refugee Act, which came into effect in 2020, had
changed the law. According to the Minister, the effect of these amendments was
that undocumented immigrants no longer have an automatic right to demand their
release from detention to apply for asylum.
This is because the amended
Act and new regulations state that people applying for refugee status must
first be interviewed by an immigration officer. They must show the immigration
officer they have “good cause” for entering the country illegally and must
explain why they did not seek asylum at an official point of entry. An
undocumented immigrant who does not first show “good cause” cannot demand their
immediate release to apply for asylum, the minister said.
Constitutional Court
proceedings
Justice Zukisa Tshiqi, in a
unanimous ruling, said the case had three issues.
The first was whether it
was in the interests of justice that Abore be allowed to approach the
Constitutional Court directly, without first going to the Supreme Court of
Appeal. Second, whether an undocumented foreigners should be barred from
applying for refugee status when they fail to apply timeously. And third,
whether Abore’s detention was unlawful.
Justice Tshiqi said that
the interests of justice required that the Constitutional Court should decide
the appeal directly.
Tshiqi said it was
necessary to clarify whether a delay in applying for refugee status prevents a
person from later applying for refugee status. Second, it was necessary to
determine whether the 2020 amendments to the Refugee Act had removed the
automatic right of an undocumented foreigner to demand their release from
detention so they could apply for asylum.
She said a delay by an
undocumented immigrant in applying for refugee status does not affect their
right to apply for recognition as a refugee. Tshiqi found that any delay in
applying for refugee status is only relevant to determine whether someone is a
genuine refugee. “It should at no stage function as an absolute
disqualification from initiating the asylum application process.”
Tshiqi said the Minister’s
argument that the 2020 amendments had removed the automatic right of a
foreigner in the country illegally to demand their immediate release from
detention to apply for asylum was misplaced.
She said that an
undocumented person who seeks refugee status can only be deported after their
application is rejected. Abore was therefore protected by the principle of
non-refoulement and could not be deported until his application for refugee
status had been finalised, Tshiqi said. (The non-refoulement principle means
that under international law asylum seekers cannot be returned to a country
where they face persecution for “race, religion, nationality, membership of a
particular social group or political opinion”. -
The Constitutional Court
ruled that Abore should have been released from custody after he paid the
admission of guilt fine. His detention after he paid the fine was therefore
unlawful.
The court ordered the
government to not deport Abore until his application for recognition as a
refugee had been finally determined.
The Minister and Director
General of Home Affairs were ordered to pay Abore’s legal costs for the
proceedings in the High Court and Constitutional Court.
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