News Articles

Ethiopian who fled to SA handed a lifeline after ConCourt rules against his deportation

Source: News24, 30/12/2021

• Constitutional Court judgment rules that an illegal foreigner stay in the country pending his application for asylum status.
• Ethiopian Desta Abore was arrested in 2020 in Eshowe for entering and living in South Africa illegally.
• The court ruled that his continued detention until June 2021 was unlawfully.
A man who fled Ethiopia for South Africa for allegedly fearing for his life, has been given a lifeline to remain in the country.
On Thursday, the Constitutional Court ruled that the Department of Home Affairs was not allowed to deport Desta Abore back to Ethiopia.
Instead, it ordered the department to `take reasonable steps` in the next 14 days to `give effect to Mr Abore`s intention to apply for asylum in terms of the Refugees Amendment Act`.
Abore entered South Africa through Zimbabwe.
It is unclear when he entered, but was arrested on 8 June 2020 in Eshowe, KwaZulu-Natal, on charges of unlawfully entering and residing in the country.
A month after his arrest, he was sentenced to 50 days` imprisonment with an option to pay a R1 500 fine.
He claimed the fine was paid on his behalf, but that he was still detained.
Despite his conviction ending on 25 August 2020, Abore was only released on 25 June 2021.
He stayed in custody after filing an urgent application in the Durban High Court in July 2020, seeking a ruling that he not be removed from the Eshowe police station holding cells and interdicting the Department of Home Affairs from deporting him.
The court granted Abore an interim order pending the finalisation of his application for his release from custody to be heard on 6 August 2020.
This was extended several times until 27 January 2021.
On 8 February 2021, the department started Abore`s deportation process.
The warrant of detention was put in place, ordering that Abore be detained in a detention facility until his deportation.
The Eshowe Magistrate`s Court confirmed this and on 1 March, Abore`s detention at the Lindela Repatriation Facility was extended by 90 days.
However, Abore launched an urgent court application challenging his deportation on 12 March.
He sought an order to stop his deportation until his status as a refugee had been determined.
The Johannesburg High Court upheld that his continued detention was lawful.
Abore approached the Constitutional Court to appeal the high court decision on an urgent basis.
The Department of Home Affairs argued that new provisions in the Refugees Act did not automatically grant an illegal foreigner the right to be afforded the opportunity to apply for asylum.
The department said the new amendments gave immigration officers and the courts the authority to decide whether valid reasons existed as to why the illegal foreigner was not in possession of a valid transit visa.
Illegal foreigners must show the immigration officer valid reasons for the illegal entry and stay in the country.
Abore said he was unable to visit a refugee reception centre because they were closed down as part of the Covid-19 lockdown regulations.
He said in court papers that he arrived in March 2020, but Home Affairs believed he arrived in 2017.
On Thursday, a unanimous judgment by Constitutional Court judges written by Justice Lumka Tshiqi ruled that `the interests of justice favoured the granting of direct leave to appeal`.
They held that the legislative changes occasioned by the amendments to the Refugees Act, which came into operation on 1 January 2020, did not have the effect of barring people in Abore`s position from applying for asylum.
The justices said the amendments, however, introduced an additional step in the form of an interview before a person may be permitted to apply for asylum.
The justices also ruled that Abore`s detention was unlawful as it ended in August 2020.
`He was therefore kept in detention without just cause or in the absence of a court order from 26 August 2020 until 7 February 2021.`
They also ruled that his detention until 25 June 2021 was unlawful.
ordered that within 14 days of its order, to give Abore`s intention to apply for asylum.
The department was also ordered to pay Abore`s costs for both the high court and the Constitutional Court.


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