A delay by an illegal foreigner in expressing their intention to apply for asylum does not bar them from applying for refugee status
August 23, 2023
Ashebo v Minister of Home Affairs and Others
Constitutional Court of South Africa
Maya DCJ & J; Kollapen, Madlanga, Majiedt, Makgoka, Mathopo, Potterill, Rogers & Theron, JJ
June 12, 2023
Reported by Faith Wanjiku & Betty Nkirote
Constitutional Law-Bill of Rights-right to freedom and security of the person-where the applicant was arrested and detained for unlawfully entering and residing in the Republic of South Africa-where upon his arrest, the applicant expressed to the arresting officers his intention to apply for asylum-whether mere expression of intention to seek asylum entitled an illegal foreigner to release from detention-whether the continued detention of the applicant by the immigration department was unlawful-whether a delay by an illegal foreigner in applying for an asylum seeker permit in terms of the Refugees Act, No. 130 of 1998 after entering the country barred them from applying for refugee status-Constitution of the Republic of South Africa, 1996 section 12; Immigration Act, No. 13 of 2002 sections 34 and 49 (1) (a).
Refugee Law-principles-the principle of non-refoulement-where the applicant illegally entered South Africa from Zimbabwe due to fear of persecution in his country-where the applicant faced an imminent threat of deportation for being illegally present in South Africa-whether an illegal foreigner was entitled to be released from detention after expressing an intention to seek asylum while awaiting deportation until such time that his or her application for asylum had been finalized-Refugees Act, No. 130 of 1998 section 2; the Refugees Convention, 1951 article 31.
The applicant was a foreign national from Ethiopia. He was arrested in Pretoria for unlawfully entering and residing in South Africa in contravention of the Immigration Act, No. 13 of 2002 (Immigration Act). The applicant was subsequently charged with being illegally present in the Republic in terms of section 49 of the Immigration Act.
Upon his arrest, the applicant explained to the arresting officers that he had long been seeking asylum with no success as a result of Covid-19 restrictions and that he had entered South Africa illegally from Zimbabwe on June 11, 2021 due to a fear of persecution in his country.
In an attempt to enforce his right to apply for asylum, the applicant lodged an urgent application in the High Court seeking amongst others, an order interdicting the respondents from deporting him until his status under the Refugees Act, No. 130 of 1998 (Refugees Act) had been lawfully and finally determined. However, the applicant’s urgent application in the High Court was struck off the roll for lack of urgency. Consequently, the applicant lodged the instant application in the Constitutional Court seeking the same relief.
- Whether a delay by an illegal foreigner in applying for an asylum seeker permit in terms of the Refugees Act, No. 130 of 1998 after entering the country barred them from applying for refugee status.
- Whether an illegal foreigner was entitled to be released from detention after expressing an intention to seek asylum while awaiting deportation until such time that his or her application for asylum had been finalized.
Relevant provisions of the law
Constitution of the Republic of South Africa, 1996
Section 12-Freedom and security of the person
Everyone has the right to freedom and security of the person, which includes the right—
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private sources.”
Immigration Act, No. 13 of 2002
Section 34-Deportation and detention of illegal foreigners
(1) Without need for a warrant, an immigration officer may arrest an illegal foreigner or cause him or her to be arrested, and shall. irrespective of whether such foreigner is arrested, deport him or her or cause him or her to be deported and may, pending his or her deportation, detain him or her or cause him or her to be detained in a manner and at the place under the control or administration of the Department determined by the Director-General, provided that the foreigner concerned -
(a) shall be notified in writing of the decision to deport him or her and of his or her right to appeal such decision in terms of this Act;
(b) may at any time request any officer attending to him or her that his or her detention for the purpose of deportation be confirmed by warrant of a Court, which, if not issued within48 hours of such request,shall cause the immediate release of such foreigner;
(c) shall be informed upon arrest or immediately thereafter of the rights set out in the preceding two paragraphs, when possible, practicable and available in a language that he or she understands;
(a() Anyone who enters or remains, or departs from the Republic in contravention of this Act, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding two years.
Refugees Act, No. 130 of 1998
Section 2-General prohibition of refusal of entry, expulsion, extradition or return to other country in certain circumstances
“Notwithstanding any provision of this Act or any other law to the contrary, no person may be refused entry into the Republic, expelled extradited or returned to any other country or be subjected to any similar measure, if as a result of such refusal, expulsion, extradition, return or other measure, such person is compelled to return to or remain in a country where—
(a) he or she may be subjected to persecution on account of his or her race, religion, nationality, political opinion or membership of a particular social group; or
(b) his or her life, physical safety or freedom would be threatened on account of external aggression, occupation, foreign domination or other events seriously disturbing or disrupting public order in either part or the whole of that country.”
- Once an illegal foreigner had indicated their intention to apply for asylum, they were to be afforded an opportunity to do so. A delay in expressing that intention was no bar to applying for refugee status. Until an applicant’s refugee status had been finally determined, the principle of non-refoulement protected the applicant from deportation.
- Section 23 (1) of the Immigration Act, No. 13 of 2002 (Immigration Act) empowered the director general, subject to the prescribed procedure under which an asylum transit visa could be granted, to issue an asylum transit visa to a person who at a port of entry claimed to be an asylum seeker. That visa was valid for 5 days only for travel to the nearest Refugee Reception Office (RRO) in order to apply for asylum. In terms of section 23 (2) of the Immigration Act, if that visa expired before the person reported at a RRO to apply for asylum, its holder became an illegal foreigner who was to be dealt with in accordance with the Immigration Act.
- Regulation 8 of the Refugees Regulations, 2018 (Regulations) which governed the asylum application process, was similarly strict. It required a person who did not possess an asylum transit visa when seeking asylum at a RRO to show good cause for his illegal entry or stay in the Republic as contemplated in article 31 (1) of the Refugee Convention, 1951 (the Convention). That was to be done before a person was permitted to apply for asylum. Article 31 (1) of the Convention envisaged that refugees ought to present themselves without delay to the authorities and show good cause for their illegal entry or presence.
- It was clear that the combined effect of the amended provisions in sections 4(1)(h) and (i) and 21(1B) of the Refugees Amendment Act, 11 of 2017 (Refugees Amendment Act) and Regulations 7 and 8(3) was to provide an illegal foreigner, who intended to apply for asylum but who did not arrive at a port of entry and expressed his or her intentions there, with a means to evince the intention even after the 5 day period contemplated in section 23 of the Immigration Act. The illegal foreigner did so during an interview with an immigration officer at which they were to show good cause for their illegal entry or stay in the country and furnish good reasons why they did not possess an asylum transit visa before they were allowed to apply for asylum.
- The fact that an illegal foreigner was still entitled to apply for asylum did not negate the fact that he or she had contravened the Immigration Act by entering and remaining in the country illegally where the detention was solely for the purpose of deportation then the detention was authorized by section 34 of the Immigration Act. However, where the detained person had been charged with a criminal offence in terms of section 49 (1) of the Immigration Act, the further detention could also be authorized by the Criminal Procedure Act, No. 51 of 1977 (Criminal Procedure Act).
- It was important to note that the applicant was charged under section 49 (1) (a) of the Immigration Act. Sections 34 and 49 of the Immigration Act regulated illegal entry and stay of non-South African citizens in the country. However, each had a distinct purpose. Section 34 did not create or refer to any criminal offence but section 49 did. Section 34 was primarily intended for deporting illegal foreigners and detaining them for that purpose whereas section 49 of the Immigration Act criminalized certain conduct.
- The absence in the legislation of provisions similar to the old regulation 2(2) posed an anomalous and highly undesirable scenario that could result if an illegal foreigner in the applicant’s position were simply allowed to remain at large on their mere say that they intended to seek asylum. That person would remain undocumented and there would be absolutely no means of checking whether they indeed promptly applied for asylum. There would be nothing to stop them from making the same claim to the next immigration officer who encountered them, thus repeatedly preventing their detention. That was not a result the legislature could have intended.
- The applicant’s detention, to the extent that it rested on section 34 of the Immigration Act could have become unlawful at some point, once a reasonable period elapsed with no effort made on the part of the respondents to bring him before a Refugee Status Determination Officer (RSDO) for the process envisaged in section 21 (1) (b) of the Refugees Amendment Act read with regulation 8 (3). To the extent that the applicant’s detention was authorized pursuant to section 49 (1) of the Immigration Act read with the Criminal Procedure Act, the immigration official’s failure to facilitate the applicant’s asylum application would not render his detention unlawful. A just and equitable remedy under section 172 (1) (b) of the Constitution, in all the circumstances would be to compel the respondents to facilitate his application for asylum, failing which to release him from detention unless he could otherwise be lawfully detained under the Criminal Procedure Act.
- The applicant was entitled to an opportunity to be interviewed by an immigration officer to ascertain whether there were valid reasons why he was not in possession of an asylum transit visa. The applicant ought to, prior to being permitted to apply for asylum, show good cause for his illegal entry and stay in the country. Once he passed that hurdle and an application for asylum was lodged, the entitlements and protections provided in sections 22 and 21 (4) of the Refugees Amendment Act would be available to him.
- Once the applicant obtained an asylum seeker visa issued in terms of section 22 of the Immigration Act, he would be entitled to remain in the country temporarily. His continued detention, to the extent that it rested solely on section 34 of the Immigration Act, would unquestionably become unlawful because he would no longer be an illegal foreigner for purposes of the Immigration Act. Merely expressing an intention to seek asylum did not entitle the applicant to release from detention. On the other hand, the respondents, particularly the 1st, 2nd, 4th and 5th respondentswere obliged, regardless of the basis of his detention, to assist him to give effect to his intention to apply for asylum. At a practical level, that simply meant that the respondents ought to facilitate arrangements either to transport the applicant to a RRO for his interview or to bring the relevant immigration or refugee officials to the correctional centre in which he was detained to conduct the necessary processes, whichever means was convenient. They were to further refrain from deporting him until his asylum application was finalized.
- Leave for direct appeal was granted and the appeal was successful.
- The order of the High Court was set aside and was replaced with the following:
“(a) It was declared that in terms of section 2 of the Refugees Act 130 of 1998 (Act), the applicant could not be deported until he had an opportunity of showing good cause as contemplated in section 21(1B) of the Refugees Amendment Act 11 of 2017, read with regulation 8(3) thereto, and, if such good cause had been shown, until his application for asylum had been determined in terms of the Act.
(b) The 1st and 2nd respondents were to pay the costs, including the costs of two counsel where employed.”
3. The 1st, 2nd, 4th and 5th respondents were directed, to the extent necessary, to take all reasonable steps, within 14 days from the date of the order, to give effect to paragraph 2(a), failing which the applicant ought to be released from detention forthwith unless he was lawfully detained under the Criminal Procedure Act 51 of 1977.
4. The 1st and 2nd respondents were to pay the costs, including the costs in the instant court of two counsel where employed.
Relevance to Kenyan jurisprudence
The Refugees Act, No. 10 of 2021 in section 3 defines a refugee as a person owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or whole of his or her country of origin or nationality is compelled to leave his or her place of habitual residence in order to seek refuge in another place outside his or her country of origin or nationality.
Section 4 provides that a person shall be excluded from being considered for refugee status if there exists serious reason to believe that the person—
(a) has committed a crime against peace, a war crime or a crime against humanity referred to in any international instrument to which Kenya is a party;
(b) has committed a serious non-political crime outside Kenya prior to his or her admission to Kenya as a refugee;
(c) has been guilty of acts contrary to the purposes and principles of the United Nations and the African Union; or
(d) is determined to be a threat to national security.
The Act also provides for the process of application for refugee status in part III, section 12. Section 22 provides for the right to remain in Kenya during status determination while section 24 provides for entry into Kenya by refugees.
Section 29 then provides for the principle of non-refoulement in that:
(1) No person shall be refused entry into Kenya, expelled, extradited from Kenya or returned to any other country or be subjected to any similar measure if, as a result of such refusal, expulsion, return or other measure, such person is compelled to return to or remain in a country where—
(a) the person may be subject to persecution on account of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the person’s life, physical integrity or liberty would be threatened on account of external aggression, occupation, foreign domination or events seriously disturbing public order in part or whole of that country.
(2) The benefit of subsection 1 may not, however, be claimed by a refugee or asylum seeker whom there are reasonable grounds for him or her being regarded as a danger to the national security of Kenya.
In Attorney General v Kituo Cha Sheria & 7 others eKLR, the Court of Appeal held that given the widespread, even universal applicability, acceptance and practice of the principle of non-refoulement which States considered to be binding upon them as a matter of law, coupled with its further recognition and protection under international human rights law such as the ICCPR at article 7; the European Convention for the Protection of Human Rights and Fundamental Freedoms; and the 1984 U.N. Convention against Torture, there existed a firm basis for the argument and conclusion that the principle of non-refoulement was a norm of customary international law.
In Kenya National Commission on Human Rights & another v Attorney General & 3 others  eKLR, the High court held that the decision to have refugees repatriated on grounds of national security is not procedural and is a violation of the legal principle of non-refoulement. The court further held that the principle of non-refoulement would apply to refugees irrespective of whether they had been formally recognized as such. Before a determination on refugee status was made, the applicant would be protected from refoulement. Whenever refugees or asylum seekers were subjected either directly or indirectly to measures of return, whether in the form of rejection, expulsion or otherwise, to territories where their life or freedom were threatened, the principle of non-refoulement would have been violated.
Section 53 of the Kenya Citizenship and Immigration Act, No. 12 of 2011 (Kenya Citizenship and Immigration Act) makes it an offence for a foreign national to enter or be present in Kenya illegally in the following terms:
Section 53-General offences
(1) A person who—
(j) unlawfully enters or is unlawfully present in Kenya in contravention of this Act;
(2) Any person convicted of an offence under this section shall be liable upon conviction to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding three years or to both;
Further, section 24 of the Refugees Act, No. 10 of 2021 (Refugees Act) provides thus:
Section 24-Entry into Kenya by refugees
(1) Any person entering Kenya to seek asylum shall make his or her intention known immediately upon entry or within thirty days by reporting to the nearest reception centre or the nearest government administrative office.
Thus, asylum seekers are required to make an application to the Commissioner for Refugees Affairs immediately upon entry into Kenya or within a period of 30 days after their entry in Kenya to be recognized as refugees. Failure by a foreign national to comply with provisions dealing with registration of asylum seekers amounts to an offence. Once a foreign national is convicted of being unlawfully present in Kenya, the court can order that they be repatriated or deported to their country of origin.
In Serogo Alex & 3 others v Republic  eKLR the court observed as follows:
Persons who enter the country while fleeing persecution or in fear of the same in their home countries, and with an intent to seek refuge in Kenya, whether as asylum seekers or refugees have a right in law to protection and accommodation in Kenya, prior to conferment of asylum or refugee status. The law affords them a chance to take the steps to have themselves registered as such, upon presenting themselves to the relevant government offices. A court faced with alleged illegal aliens or foreigners charged with being in the country illegally, if they originate from a country known to have internal or even external conflict, is obliged to establish whether or not such persons are in the country in pursuit of a safe haven, before subjecting them to the criminal process, and once it is apparent to the court that they are either refugees or asylum seekers, then it should deal with them as such. If they are not yet accorded asylum or refugee status, the court should facilitate that by directing the authorities that have presented them to court to place them before the authorities responsible for grant of refugee or asylum status for facilitation. The criminal justice system should only be employed as a last resort, after the said persons have been assessed by the relevant authorities, and found not to be genuine refugees or asylum seekers, whereupon they should be charged with being in the country illegally, penalize them and have them repatriated thereafter.
However, with respect to the issue of repatriation or deportation of refugees, Kenya is under an obligation to observe the principle of non-refoulement which is the cornerstone of asylum and of international refugee law. Indeed, respect for the principle of non-refoulement requires that asylum applicants be protected from being returned to a place where their life or freedom might be threatened until it has been reliably ascertained that such threat would not exist.
This was the holding of the court in Kenya National Commission on Human Rights & another v Attorney General & 3 others  eKLR.
This case is therefore relevant to Kenyan legal system as it enlarges Kenyan Jurisprudence on the application of the principle of non-refoulement which requires state actors not to return refugees back to a place that threatens their freedom and life.