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.

www.samigration.com

Dodgy permits probed

ANALYST: IMMIGRATION SYSTEM HAS LOST ALL CREDIBILITY DUE TO CORRUPTION

The Citizen  - 18 January 2022

Not worth the paper they were printed on

Review follows high-profile people investigated by dept’s corruption unit.

That Home Affairs Minister Aaron Motsoaledi is moving to review a raft of dodgy permits allegedly issued by corrupt officials is a welcome intervention but may be “too little, too late” to salvage the credibility of the immigration system, says a political analyst.

Vukani Kusile Foundation’s Solly Masilela said: “It will take time for the clean-up to be a success because corruption and maladministration of the immigration laws and regulations is too entrenched and linked to other departments, such as the department of international relations and cooperation. It is a step in the right direction though.”

Masilela added that the SA immigration system had taken such a knock that SA-issued documents were not worth the paper they were printed on.

Motsoaledi has received the report of the task team up in March to review some permits in a raft of categories. These include permanent residence permits and citizenship by naturalisation issued since 2004.

His office said he would make an announcement soon. The need to review the permits was triggered by a trend emerging from the outcomes of cases involving high-profile people investigated by the department’s corruption unit. In February the minister revealed that Enlightened Christian Gathering leader Shepherd Bushiri and his wife, Mary, had been in South Africa illegally.

The unit has established that 66% of cases involved immigration permitting.

Motsoaledi has said that in November last year, during a top-level investigation, he was shocked when 14 members of the permitting section signed a petition demanding that the corruption unit stop investigating their errors.

The minister said this admission strengthened his resolve to have a more transparent permit issuing regime.

Other permits on Motsoaledi’s radar are corporate visas, business visas, professional/critical skills visas, retired person’s visas and study visas.

Last week home, a home affairs official, Democratic Republic of the Congo national Mbemba Pierre Mahinga, was dealt a blow when the Supreme Court of Appeal dismissed his application to stop the department stripping him of his SA citizenship.

The 55 year old arrived in SA in 1996 as an asylum seeker but withdrew his asylum application and instead applied for a permanent permit after marrying a South African in 1999. In 2003, he got citizenship but home affairs claimed he had engaged in a marriage of convenience to this end. –

www.samigration.com

 

'Fake marriage' costs DRC-born home affairs official his SA citizenship

Times Live - 24 December 2021

 

A DRC-born home affairs official has been stripped of SA citizenship after the department found he obtained it via a marriage of convenience. File photo.

A home affairs official’s professional ambition has had unintended consequences for him.

Mbemba Pierre Mahinga faces a bleak 2022 after the Supreme Court of Appeal (SCA) dismissed his application to stop the home affairs department stripping him of his SA citizenship.

In 1996 Mahinga, now 55, arrived in SA from the Democratic Republic of the Congo (DRC) as an asylum seeker, and home affairs alleged he engaged in a marriage of convenience to get citizenship.

He worked at home affairs, where a promotion exposed problems with his CV.

Mahinga has been engaged in a legal battle with the home affairs minister and director-general since 2016, when the minister revoked his citizenship and terminated his employment.

He hauled the minister and the director-general to the high court in Pretoria and won a minor reprieve when the court set aside the decision to revoke his citizenship.  

However, the full bench of the court later ruled in favour of the minister and director-general when they appealed, at which point Mahinga turned to the SCA.

The court in Bloemfontein dashed his hopes last month. A 17-page judgment penned by judge Dumisani Zondi detailed inconsistencies in Mahinga’s CV, asylum seeker application and marriage.

The judgment said Mahinga flew to the DRC for a holiday in 2012 even though he claimed to have fled the country because he feared persecution.

According to the judgment, Mahinga married a South African in 1999. He withdrew his asylum application the following year and applied for a permanent residence permit. It was granted in 2001, and two years later he obtained citizenship.

“At that stage there were problems in the marriage,” said Zondi.

“His wife was allegedly seeing another man. A child was born from this relationship on October 15 2003, four months after his application for naturalisation. He renounced his Congolese citizenship in 2015.”

In  2004, Mahinga got a job as an admin clerk at the home affairs refugee reception centre in Pretoria. He was promoted to assistant director in 2006.

“When he applied for employment at the department, [he submitted his curriculum vitae as part of his application. Under work experience on his CV, he stated he was an employee at the embassy of the DRC in Pretoria as an administrative officer from July 1998 to August 2000, and left the embassy’s employ because he was retrenched,” said Zondi.

A tip-off in 2007 sparked a home affairs investigation, but Mahinga did not co-operate with officials when he was asked to provide information for vetting purposes in 2011.

The investigation escalated in 2013 when the department picked up inconsistencies in his application for citizenship after perusing its movement control system. These included how and when he entered SA, the legitimacy of his marriage and “false registration of several children on his personal and salary system”.

The department concluded he was “an illegal foreigner, whose only two options to remain in SA were to apply for asylum or go into a marriage of convenience”, said Zondi.

His application was founded on misrepresentations and the spouse permit in support of his citizenship application was allegedly false.

Mahinga denied the allegations.

“I have never been an illegal foreigner in SA,” he told home affairs.

“My asylum application was based on true-life persecution experiences. My asylum claim was appropriately lodged and duly registered in 1996 first. Home affairs put me through a second re-registration process in 1998.

“The accompanying spouse permit was legitimate. My spousal relationship was based on true love, good faith and a genuine spousal relationship reinforced by shared dreams, shared family life and faithfulness and meant to last until death do us part.”

He said only the department could shed light on “how people I never officially declared as being my children or being connected to me ended up being linked to me”.

The SCA found Mahinga obtained permanent residence through misrepresentation because he was not staying with the woman to whom he claimed to have been married. It dismissed his appeal and ordered him to pay the legal costs.

Neither Mahinga’s lawyers nor home affairs responded to requests for comment.

www.samigration.com

 

White South Africans are leaving the country in their thousands: Stats SA

Businesstech - 19 December 2021

Statistics South Africa has published its mid-year population estimates for 2021, showing that the country’s population continues to grow, to 60.1 million people.

The country recorded a net increase of 520,628 people between estimates in 2020 and 2021, Stats SA said.

StatsSA also provided a breakdown of demographics, including the estimated shifts among different racial population groups. Black South African estimates increased by 486,602 over the period, while the country’s coloured population grew by 47,228. The Asian/Indian population group added 4,109 over the last year.

South Africa’s white population, however, declined by 17,311 people between 2020 and 2021, Stats SA said.

Notably, while South Africa’s white population still maintains its proportionate make-up of the overall population, at 7.8%, this has steadily declined over the years, from 7.9% in 2019, 8.1% in 2016, and 9.0% in 2011. Stats SA pointed to emigration as a key factor in this declining trend.

Migration data over the 2016-2020 period shows that South Africa has seen a massive influx of foreign nationals over the last five years. Stats SA estimates that between 2016 and 2021 South Africa is expected to see net international migration of 852,992 people into the country.

This includes a large number of people entering the country from Africa (894,365), as well as a smaller number from Asia (49,854). However, the stats body estimated that around 91,000 white South Africans will have left the country over the period.

Stats SA’s migration assumptions are in fact lower than previously reported – in 2020 it was expected that 115,000 white South Africans would have left the country by 2021.

One reason for this lower number could be the Covid-19 pandemic, which Stats SA said had an indirect impact on migration data, and affected 16 of the 60 months under review.

“There is a marked reduction in international migration, which is indicative of the Covid-19 travel restrictions globally over the past 16 months,” it said. However, it noted that internal numbers have not been as affected because internal mobility over this period has been temporary.

Overall, Stats SA estimates that 611,500 white South Africans have left the country over the last 35 years, contributing to the declining trend.

Looking at the larger picture of South Africa’s racial demographics as a proportion of the population, little has changed over the last decade, with black South Africans accounting for around 80% of the population.

In raw numbers, South Africa’s white population is estimated to be 96,600 larger than a decade ago (2011), however, this follows a loss of 108,900 people in number between 2013 and 2017, and a gain of 186,270 between 2018 and 2020.

Zooming in on the population proportions (percentage of the population) among minorities, while coloured South Africans and Indian/Asian South Africans have remained stable, white South Africans have shown a clear decline.

Stats SA’s population figures are based on estimates from a cohort. While it is considered an accurate reflection of the demographics of the country, it can change based on new information.

The most accurate way to get population figures is from a national census, with Stats SA expected to conduct one in October 2021.

www.samigration.com

 

Home affairs minister will not budge on Zim exemption permits

City Press -

 

Motsoaledi told City Press that South African government officials were facing pressure mainly from Zimbabwean politicians and diplomats in a last-ditch attempt to persuade Ramaphosa to change his mind.

Home Affairs Minister Aaron Motsoaledi has vowed to push ahead with the termination of the Zimbabwe exemption permits issued to asylum seekers, when they expire at the end of this month, despite “tremendous” pressure from the Zimbabwean government and lobby groups not to.

The exemption permits were granted to more than 250 000 Zimbabweans who were among the millions who poured out of Zimbabwe at the height of its political and economic crisis in 2008 and 2009, overwhelming the country’s refugee system.

The temporary measure was meant to regularise their presence in the country and allow them to access services such as banking.

South Africa’s Cabinet decided last month that it would not extend the permits when they expire on December 31.

Exemption permit holders will have to apply for mainstream visas under normal immigration laws before December 31 next year, or leave the country.

Motsoaledi says South Africa is facing huge pressure from the Zimbabwean government – which seemingly does not want its own citizens back – to withdraw the Cabinet directive.

And it is not alone in protesting against the termination.

Human rights groups have slammed the decision, with the Centre for Applied Legal Studies writing to Motsoaledi, asking him to rescind it on “purely humanitarian grounds”.

It said: Zimbabwe remains a country in turmoil and continues to experience serious economic and political challenges and violence.

Exemption permit holders argue that they qualify for permanent residence on the basis that they have been in South Africa for more than a decade. 

Advocate Simba Chitando, representing exemption permit holders, said he had instructions to continue with court action to have President Cyril Ramaphosa’s directive overturned.

“Our attention’s now focused on asserting exemption permit holders’ legal right to permanent residency in the Republic,” he said.

SA WON’T BE ABUSED

It is believed that the Zimbabwean government is concerned that it would not be able to cope with a large influx of returning citizens.

City Press also understands that President Emmerson Mnangagwa’s government fears that some of the returnees are former political activists who would strengthen resistance to the regime. 

Motsoaledi told City Press that South African government officials were facing pressure mainly from Zimbabwean politicians and diplomats in a last-ditch attempt to persuade Ramaphosa to change his mind.

He said the pressure seemed to be an attempt to get the South African government to abuse its own immigration laws.

“There’s an abuse of our systems and, if we don’t put our foot down, we’ll keep being abused forever. We’re not going to be forced to break our own laws in order to make someone else’s work easy.

Motsoaledi said: We’re dealing with self-interest groups that don’t care about the wellbeing of Zimbabweans who, as exemption permit holders, can’t apply for any other visa, given the restrictions that were put in place.

SA’S IMMIGRATION SERVICE

He expressed anger about the fact that “people keep blaming the immigration services of South Africa, as if when one country creates a crisis, the country closest to it must respond by building the requisite capacity to deal with that crisis.

That’s the logic here.”

He added: “There’s also this [belief] that South Africa has abundant [resources] for everybody. That’s nonsense. No country has the capacity to accommodate everyone who has problems in the country they come from. In other words, when more and more [people] come, we must be able to hire more and our resources must expand. That’s not on.” 

Motsoaledi’s hard-line stance comes at a time when illegal immigration has become a powerful political football in South Africa, with some parties using it as a major mobilising issue during the recent local government election.

THE 2008/09 INFLUX

Motsoaledi explained that the exemption permits were issued to people who were fleeing Zimbabwe between 2008 and 2009, because asylum centres were not designed to process the tens of thousands of Zimbabwean citizens who ended up overwhelming the system. 

Some of those who applied were economic refugees who had no legitimate claim to political asylum status.

He said: The refugee regime was only designed for a small number of people.

Motsoaledi pointed out that in 1998, the number of people who sought asylum in South Africa was 16 000, rising gradually to 45 000  in 2006.

“All of a sudden, in 2008, we had an influx of 200 000 and one refugee centre was [unable] to process those people. In 2009, there were a further 207 000, which meant that we had more than 400 000 people flooding in from Zimbabwe in just one year,” said Motsoaledi. 

City Press was reliably informed by another senior official that the Zimbabwean government intended using Covid-19 measures, including stringent monitoring of curfew hours, as a way to discourage “those whom they deem ‘undesirable’” from returning to that country.

Some of these “undesirables” included former state intelligence and security operatives who fled the country after falling out of favour with the heavy-handed Zanu-PF government.

 The official said: The Zimbabwean government hunted down its own operatives and now they want South Africa to keep them because they’re afraid.

He added that many intelligence operatives had found homes in different organisations, including some NGOs that were leading protest action on behalf of exemption permit holders. 

Motsoaledi said “special-interest groups” claiming to represent the interests of Zimbabweans affected by the termination of the exemption permits had turned out to be immigration lawyers whose businesses survived on expediting migration.

“If there’s no immigration in whatever form – legal or illegal – they can’t make a living, so they resort to pressurising the state.

Others make money as NGOs by claiming that they’re representing human rights and they get donor funding,” he explained.

He said many of those opposing the final termination of the permits did not understand that something that had been an extraordinary dispensation could not last forever, and that people who qualified and wished to apply for different kinds of visas were free to do so during the 12-month grace period that had been granted for that purpose.

“So how long must this special permit remain special? There were disadvantages for people who were on the exemption permit,” said the minister.

DISINFORMATION CAMPAIGN

Motsoaledi said there were also disinformation campaigns encouraging Zimbabweans whose children who were born in South Africa to demand citizenship for their offspring.

“Parents are told that if they don’t do this, their children won’t be accepted in our schools. That’s just nonsense. All they need to do is go to the department of education and enquire.

“There’s nothing in law stating that when you’ve been in a country for a certain period, then that country is obligated to naturalise you. But here they want to make it an automatic right – and that’s what I’m resisting. We’re being pressurised into doing what other countries would never do.”

He said this would mean that the children of Zimbabweans who made use of Limpopo’s health services in huge numbers would be entitled to South African citizenship.

 He asked:

If you go to Musina Hospital [in Limpopo], 70% of the women giving birth there who came for health services are from Zimbabwe. If those children are born there, does this mean we must give them citizenship?

 

www.samigration.com