• 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.
|Cape Town - Current office infrastructure at the department of Home Affairs (DHA) in the Western Cape does not make provision for people queuing outside and exposure to severe weather conditions. This despite protected client queueing areas being included in norms and standards for the department`s facility specifications. This emerged during a briefing by the department of Home Affairs to the legislature’s standing committee on the premier and constitutional matters.... Read more...|
|Applying for your Section 11(2) Visitors Visa with Work Conditions This visa must be applied for abroad in your country of residence. Applications must be logged and processed by the responsible South African Embassy or consulate. The Section 11 (2) Permits requires an approval letter which is a once off non-renewable permit allowing one to work in South Africa and cannot be changed into another type of permit in South Africa.... Read more...|
|Under new rules, workers in the UK who hold a student, youth mobility scheme or intra-company transfer visa are now allowed to switch to a Skilled Worker visa without having to leave the UK, says Darren Faife, managing director, business immigration at Sable International. Faife takes a closer look at the conditions needed to make this switch. Switching visas The Youth Mobility Scheme visa, previously known as the T5 Youth Mobility Scheme visa, is often referred to as the UK working holiday visa and is a great way to gain international work experience as well as travel throughout the EU. This visa allows young people (aged 18-30) from certain countries to live, work and travel in the UK for up to two years.... Read more...|
|The Curious Case of the 1997 Exemption Permits 2021 has started on a busy note in terms of the South African immigration landscape. The Border Management Agency began its work having been signed into law by the president in December, a draft critical skills list has been published and now the Minister has vowed to take steps to review and investigate visas and permits irregularly issued over the years and its only February.... Read more...|
|Government is in the process of developing the new National Identity System (NIS), which will replace the current National Population Register and become the backbone of all Home Affairs functions in South Africa. The system, which is expected to be operational by March 2024, will enable the security and reliability of civic and immigration status linked to identity and biometric data. In this way, the NIS will effectively act as a single source of information on all South Africans.... Read more...|
|Right of reply: Society doesn`t give repeat offenders a free pass simply because they frequently break the law in any other sphere of life. Immigration is no different, writes Siya Qoza. Your story that appeared in print and online on January 12 this year, titled, “Beitbridge anti-immigration efforts hit by bribery claims”, bears reference. As the Department of Home Affairs, we wish to make a few points, for the benefit of your readers.... Read more...|
|Pretoria - The alleged conduct of a Home Affairs official believed to have changed the version of a Nigerian citizen in his application for refugee status has been referred to the National Prosecuting Authority (NPA) for investigation and possible prosecution. The Johannesburg High Court last month ordered that the NPA must establish whether the official lied about the facts which were given to him by the Nigerian citizen, only identified as EL to safeguard him from possible persecution.... Read more...|
|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.... Read more...|
|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.... Read more...|
|Home Affairs minister Aaron Motsoaledi is leaving no stones unturned in his quest for rooting out corruption. 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.... Read more...|