Undocumented man applying for refugee status can remain in SA, Concourt rules
Source: Groundup, 18/01/2022
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
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
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.
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
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
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
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