The Constitutional Court has ordered that an Ethiopian man who entered SA illegally is entitled to remain in the country pending the outcome of his asylum application.
Desta Abore approached the apex court for a direct appeal against a Johannesburg high court ruling which dismissed his bid to interdict the home affairs department from deporting him until his status under the Refugees Act or Refugees Amendment Act was lawfully determined.
He also sought an order declaring his continued detention unlawful and sought to be released. But the high court declared his detention was lawful.
The apex court further directed the department of home affairs to take all reasonable steps within 14 days of its order to give effect to Abore’s intention to apply for asylum in terms of the provisions of the Refugees Amendment Act.
Abore was arrested in Eshowe, KwaZulu-Natal, for unlawfully entering and residing in SA in contravention of the Immigration Act.
The Eshowe magistrate’s court convicted and sentenced him in July 2020 to 50 days’ imprisonment with an option to pay a fine of R1,500.
He immediately began serving his sentence, which officially ended on August 25 2020. However, he remained in custody and was released 10 months later in June 2021.
In February 2021, home affairs officials initiated the deportation process. A warrant of detention was issued, ordering the head of the detention facility to detain him until he was removed from SA. The warrant was later confirmed by the Eshowe magistrate’s court.
Abore’s detention was extended on March 1 2021 by the Krugersdorp magistrate’s court for 90 days.
The Constitutional Court accordingly upheld the appeal with costs. It further stated that legislative changes occasioned by amendments to the Refugees Act, which came into operation on January 1 2020, do not have the effect of barring people in Abore’s position from applying for asylum.
The court held that the amendments introduced an additional step, in the form of an interview, before a person may be permitted to apply for asylum.