- Twenty undocumented detainees have won urgent protection from deportation while their asylum applications are being considered.
- The Department of Home Affairs has been ordered to process asylum applications at Lindela or transport the applicants to the nearest Refugee Reception Office.
- Judge MP Motha said that the current catch-and-release system is undignified and exposes vulnerable migrants to corruption and repeated arrests.
The High Court in Johannesburg has instructed the Department of Home Affairs to process the asylum applications of 20 undocumented foreign nationals held at the Lindela Repatriation Centre. The ruling means they cannot be deported while their applications are still being determined.
Judge MP Motha explained that these applications were among nearly 60 urgent matters brought by undocumented foreign nationals who were being detained for deportation. He described the cases as the aftershocks of the Constitutional Court's landmark Scalabrini judgment, which struck down key parts of the amended Refugees Act and left lower courts dealing with a significant legal vacuum.
The applicants are mostly Ethiopian nationals, with others from the Democratic Republic of Congo and Nigeria. Several have lived in South Africa since 2020 and told the court they had tried to seek asylum but had never been interviewed by a Refugee Reception Office, despite attempts to enter the asylum system.
Constitutional Court reshaped the asylum system
Judge Motha noted that the 2020 amendments introduced a stricter asylum regime. Applicants now had to satisfy multiple legal thresholds before being allowed to apply for asylum, including proving compelling reasons, valid reasons, and good cause for their illegal entry or delayed reporting.
The Constitutional Court later declared that framework unconstitutional. It found that the overlapping standards were vague and irrational and gave immigration officials unguided discretion. Judge Motha said the decision effectively dismantled the previous regime without creating a workable interim process, leaving urgent courts to resolve detention disputes on a case-by-case basis.
The judgment reaffirmed that South Africa's refugee system is anchored in the principle of non-refoulement, which prohibits sending someone back to a country where they may face persecution or threats to their life, safety, or freedom.
Home Affairs must facilitate asylum applications
The court held that simply expressing an intention to apply for asylum does not automatically entitle a detainee to be released.
Instead, Judge Motha ruled that Home Affairs has a legal obligation to facilitate the asylum process, while ensuring that applicants are protected from deportation until their applications have been finalised.
The judge supported the practical approach set out in an earlier Supreme Court of Appeal judgment by Chief Justice Mandisa Maya. This means that immigration and refugee officials should either conduct asylum interviews at Lindela or transport detainees to a Refugee Reception Office, so their applications can be processed without delay.
Judge Motha also noted the suggestion by the Director of the Tshwane Refugee Reception Office to consider establishing a Refugee Reception Office at or near the Lindela Repatriation Centre, a move that could help resolve many of these challenges more efficiently.
Judge condemns catch and release system
Judge Motha delivered strong criticism of South Africa's current immigration system. He said it was “the height of folly” to arrest undocumented foreign nationals for lacking documentation, only to release them back into society still undocumented and vulnerable to being arrested again.
The judge described the catch-and-release approach as undignified, saying it perpetuates corruption and exposes foreign nationals to financial exploitation, instead of resolving their legal status through the asylum process.
Home Affairs criticised for failing to appear
The judgment also criticised the Department of Home Affairs for failing to attend the urgent proceedings at first.
Judge Motha said the department was a no-show until the court insisted on its attendance, after which the matters were properly ventilated. The judge added that immigration is too serious an issue to be treated in that manner.
The court also observed that while well-resourced organisations often participate in immigration litigation, the voices of poorer South Africans who are concerned about undocumented migration are often absent. The court warned that it should avoid becoming an echo chamber.
The order
The court declared the applications urgent and stopped Home Affairs from deporting the 20 applicants while their asylum applications are still being decided.
Home Affairs has been ordered to send immigration and refugee officials to the Lindela Repatriation Centre to conduct the necessary asylum interviews, or, if that is not possible, to transport the applicants to the nearest Refugee Reception Office for processing.
The respondents have also been ordered to pay the applicants' legal costs jointly and severally.
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