Illegal Ethiopian and Somalian immigrants lose bid to challenge their detention

The Johannesburg high court has dismissed an application by four Ethiopians and two Somalis living illegally in South Africa who sought an interdict against the government from detaining, prosecuting and deporting them until their status has been finalised in terms of the Refugees Act.

The six also sought declaratory orders that their continued detention was unlawful, that they were entitled to remain lawfully in South Africa until their applications for refugee status were determined and asked the court to order they are entitled to temporary asylum seeker permits.

They are being held in detention at Modderbee and Boksburg correctional centres, having been arrested for allegedly entering and staying in the country in contravention of the Immigration Act.

Two of the Ethiopians were arrested in Germiston and Johannesburg on September 1 while the other two were arrested on June 2 and August 3 in Daveyton.

In court papers, they said while living in Tigray, Ethiopia, they were persecuted by the governing party for their political and religious beliefs due to their mobilisation efforts as members of the Ethiopia People’s Revolutionary Party, an opposition political party. They said Ethiopia’s governing party terrorised, persecuted, tortured and killed members of their party, including their family members. This caused them to fear for their lives and led to their escape to seek refuge .

They left Ethiopia on different occasions and passed through Kenya, Zambia, Malawi and Zimbabwe, entering South Africa unlawfully over the Zimbabwe border.

Instead of entering through an official port of entry, they “jumped” the border.

They did not have passports and said they feared being arrested and returned to Ethiopia if they entered through an official port of entry.

“Having entered South Africa they met their fellow countrymen and requested guidance regarding their desire to apply for asylum. They were advised to approach the refugee reception office (RRO) which was, however, closed because of the Covid-19 pandemic. During this time their countrymen refused to allow them to leave the premises they lived in,” read the court judgment made on Friday.

They claimed to have had no knowledge of the procedure to be followed when applying for asylum.

Before they could apply for asylum, they were arrested and tried in vain to explain to the arresting officers that they were asylum seekers and wanted to be allowed to apply for asylum.

“This fell on deaf ears and instead they were called economic migrants. There was no interpreter offered to them and they struggled to express themselves and failed to fully understand what was being said to them. Due to this, they signed papers without understanding their contents,” the judgment read.

They said if they are deported they would face the possibility of death in Ethiopia.

The two Somalis related similar circumstances.

They said they fled Somalia because of bombings by Al-Shabab and Al-Qaeda terrorists. The bombs targeted buildings and telecommunication towers and were accompanied by torture and killing of civilians.

They do not remember the dates they escaped but used the same method as the Ethiopians entering South Africa illegally.

After entering South Africa, they said they attempted to visit the RRO but on each occasion they were turned away without assistance.

They were arrested in Daveyton on September 13 and recounted the same arrest experience as the Ethiopians.

According to the national director of public prosecutions (NDPP), the foreigners were arrested for being in South Africa illegally and were charged for illegally entering and staying in the country.

The applicants based their case on section 2 of the Refugees Act which outlaws the deportation or return of asylum seekers or refugees to their country of origin or any country if it would expose them to persecution or if their personal safety or freedom would be at risk.

They argued that section 2 accords them the right to apply for asylum and immunity from arrest, detention and deportation.

In the judgment handed down on Friday, their application was dismissed.

The court said a “mere expression of intention to apply for asylum does not entitle any person to be released from detention where such person is detained for contravening the Immigration Act”.

Gauteng judge president Dunstan Mlambo, who penned the judgment for the full bench, said an illegal foreigner does not have unrestricted indemnity from penalties, including arrest and detention. The law requires them to present themselves without delay to the authorities and to show good cause for their illegal entry or presence in the country before being allowed to apply for asylum.

“It must be in the interest of any country desiring to protect its borders to expect anyone entering its territory to do so lawfully, with certain exceptions such as people entering directly from the country where the persecution is taking place.

“A foreign national arrested, charged and detained pending a trial ... is in the same position as any other accused charged with an offence and awaiting trial,” Mlambo said.

If they were denied bail their detention was not unlawful.

“If they are found not guilty at their trial they will be entitled to release. If they are found guilty and sentenced to a fine or imprisonment, then they will be entitled to be released after paying the fine or serving the term of imprisonment provided that illegal foreigners seeking asylum must still apply for refugee status.”

There was no automatic release from detention once an intention to apply for asylum had been indicated by the foreigner.

“The applicants’ argument that they are ... entitled to be released on their mere assertion of an intention to apply for asylum is manifestly misconceived and must be rejected.”

In terms of the order, the minister of home affairs, director-general of home affairs, NDPP and the minister of justice and correctional services have been directed, to the extent necessary, to take reasonable steps within 60 days from the date of the order to afford the applicants an opportunity to show good cause as to why the they are not in possession of an asylum transit visa.

The court also ordered government respondents to allow the process of any review or appeal, in the event where good cause is not established, to unfold until it is finally determined.

They were also directed to approach the magistrate’s court for an extension of time should the review or appeal process not be finalised within 60 days.

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