Court rules six asylum seekers’ detention is lawful

Six asylum seekers who entered SA illegally have failed to convince the court that their detention was unlawful. 

Applicants Lembore, Teketel Hajiso, Temesgen Matiwos, Thomas Godiso, Aden Osman and Abdi Yusuf approached the high court in Johannesburg to interdict their detention, citing that it violated their rights as they had escaped their home countries, Ethiopia and Somali, for political reasons and were arrested in SA before they could apply for asylum. They said they feared being deported. 

They were arrested last year and are in custody at Modderbee and Boksburg Correctional Centres on charges of contravention of the Immigration Act. 

The court has ruled against their interdiction, highlighting the need to demonstrate valid reasons for illegal entry before asylum protections are triggered.

According to court documents, Lembore and Matiwos, along with Godiso and Hajiso, faced arrests in SA in September 2023, having fled persecution in Ethiopia due to their political affiliations. They recounted experiences of terror and persecution by Ethiopia’s ruling party, which led to their decision to seek refuge in any country.  

“Crossing through Kenya, Zambia, Malawi and Zimbabwe, they entered SA unlawfully via the Zimbabwe border, fearing arrest and deportation if they used official ports of entry without passports. Despite attempting to seek asylum upon arrival and encountering closed refugee reception offices due to the Covid-19 pandemic, they were detained before they could apply,” read court papers.

“Their pleas to explain their asylum-seeking intentions were disregarded and they faced challenges in communication due to lack of interpretation services. They feared deportation to Ethiopia, where they believed they would face the threat of death,” read the court paper. 

Whereas Osman and Yusuf, Somali nationals, fled Somalia due to bombings by terrorist groups such as Al-Shabab and Al-Qaeda, targeting civilians and infrastructure. They entered SA illegally, following the same route as the Ethiopian applicants.

"Despite attempting to seek asylum and encountering closed refugee reception offices, they were turned away without assistance. Arrested in Daveyton on September 13, 2023, they faced similar experiences to the Ethiopian applicants. They were charged with illegal entry and detained, with their trials postponed in the magistrate's court. Their detentions were ordered by presiding magistrates,” read the court paper. 

The applicants pleaded that their detention violated their rights under the Refugees Act and international conventions, asserting their entitlement to apply for asylum and protection from deportation. 

Delivering his judgment, Judge President Dunstan Mlambo concluded that the applicants had failed to make a case to interdict the respondents from detaining and prosecuting them. The respondents included the National Prosecuting Authority and the department of Correctional Services. 

“Their detention and prosecution are lawful. Furthermore, nowhere have the applicants made out a case that the respondents intend to or are in the process of deporting them. The respondents have disavowed any such intention. Thus, no case to interdict this has also been made,” said Mlambo. 

Mlambo further stated that the mere expression of an intention to apply for asylum does not trigger the protections in section 2 of the Refugees Act 130 of 1998 until good cause for illegal entry and stay is shown. 

Mlambo said the applicants had submitted a critical question of whether the respondents have the authority to detain illegal foreigners after they evince an intention to apply for asylum.

“They specifically argue that the Constitutional Court’s decision in Beneyam Ashebo v minister of Home Affairs was wrongly decided and that we should not follow it but should instead follow a full court decision from this court... They contended that the mere expression of intention to seek asylum should trigger protections under the law,” said Mlambo. 

In that case, Ashebo faced a similar situation to the six applicants. 

Ashebo fled persecution in Ethiopia and entered SA illegally in 2021 and was arrested in 2022. Despite attempts to seek asylum, he faced language barriers and was detained without understanding the charges. He argued urgency, citing imminent deportation threats and violations of refugee conventions. The court acknowledged his right to apply for asylum and mandated respondents to facilitate the asylum process while refraining from deportation.  

The respondents in the current matter had argued that the six applicants jumped the gun by bringing these applications before the completion of the good cause interviews process. 

“They argue that the position will become clearer once this process is over as the detention of the applicants has the objective of aiding the good cause interview process. They further argue that the detention of the applicants is perfectly legal, and sanctioned as it is by the amendments to the Refugees Act and as upheld and applied by the Constitutional Court in Ashebo but there can be no debate that the matter is urgent,” said Mlambo.