A Johannesburg High Court judge has ruled that asylum seekers cannot be kept behind bars once they indicate that they want to apply for refugee status, while sharply disagreeing with another recent judgment that allowed their continued detention.
Judge Stuart Wilson said the law requires the immediate release of people detained under immigration laws once they express an intention to seek asylum.
The ruling arose from the detention of Ethiopian national Solly Ered at the Lindela Repatriation Centre. Wilson ordered Ered’s immediate release on July 14, but handed down his detailed reasons on Wednesday.
Ered arrived in South Africa in 2021 after fleeing Ethiopia, where he claimed he faced persecution and death threats because of his political beliefs. He told the court that he had tried to apply for asylum but was turned away from refugee reception offices.
Ered was arrested in Windsorton, Northern Cape, on March 20 and prosecuted for being in South Africa illegally. Despite allegedly telling police that he wanted to apply for asylum, he was convicted under the Immigration Act and sentenced to three months in prison. After completing his sentence, he was detained again pending deportation and transferred to Lindela.
Constitutional Court changed the law
The case turned on a Constitutional Court judgment delivered on July 7 in Scalabrini Centre of Cape Town v Minister of Home Affairs.
That judgment struck down provisions of the Refugees Act which had required undocumented prospective asylum seekers to show “good cause” for entering or remaining in South Africa illegally before being allowed into the asylum process.
Wilson said the Constitutional Court decision fundamentally changed the legal position.
“The ‘good cause’ interview process lost its footing in law,” he said.
The effect, according to Wilson, was that previous legal principles again applied.
“Chief among those principles is that release from detention under the Immigration Act must follow immediately upon the detainee evincing an intention to apply for asylum, and asylum seeker detention is unlawful once an intention to apply for asylum has been expressed.”
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Wilson said there was consequently only one lawful outcome when Ered appeared before him.
“There was nothing to do but to release Mr. Ered immediately, since he had intimated his intention to apply to asylum and was entitled to liberation on that basis.”
Judge disagrees with another ruling
But Wilson went further, openly disagreeing with another Gauteng High Court judgment handed down on August 25.
In Mnamo v Minister of Home Affairs, the court dealt with 20 applications by prospective asylum seekers detained at Lindela.
According to Wilson, that court declined to order their release despite recognising that they wanted to seek asylum and that the previous “good cause” regime could no longer apply.
Instead, Home Affairs was directed to take immigration and refugee officials to Lindela to process them or transport the applicants to a refugee reception office.
Wilson rejected that approach.
“I cannot support this approach. It is, in my view, without legal foundation,” he said.
He said the court in the Mnamo case incorrectly relied on an earlier Constitutional Court judgment dealing with the now-defunct good-cause procedure.
“The Mnamo judgment’s failure to apply the decision in Ruta is, in my respectful view, erroneous. On the facts set out in the Mnamo judgment, the applicants should have been released.”
Wilson rejects Dudula sentiment
Wilson also took issue with the Mnamo judgment’s reference to the views of organisations including Dudula and March and March.
The Mnamo court had associated those views with those of “the impoverished and downtrodden members of the society”.
Wilson rejected that proposition.
“I do not think that the two can be treated as identical,” he said.
“I have my doubts about whether xenophobic organisations have much support among the poor and the vulnerable, most of whom may well strive to avoid the egregious mistake of blaming the poverty they endure on the presence of foreign nationals in South Africa.”
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But Wilson said the larger issue went beyond attitudes towards foreign nationals.
Courts, he said, were required to apply the law rather than attempt to reflect what judges believed to be prevailing public opinion.
“The duty of a court is not to channel the views it attributes to a judicially constructed vision of a virtuous majority, but to apply the law as it stands.”
Wilson said courts remained duty-bound to enforce constitutional rights and freedoms regardless of what judges or members of the public thought about them.
Home Affairs did not appear in court to oppose Ered’s application.
- Judge Stuart Wilson ruled that asylum seekers must be released immediately once they indicate an intention to seek refugee status, based on a Constitutional Court judgment that struck down the "good cause" requirement in the Refugees Act.
- Ethiopian national Solly Ered was detained at Lindela Repatriation Centre after being convicted and sentenced for illegal presence despite telling police he wanted to apply for asylum.
- Wilson disagreed with a recent Gauteng High Court ruling in Mnamo v Minister of Home Affairs that allowed continued detention instead of releasing prospective asylum seekers immediately.
- Wilson criticized the Mnamo judgment for misapplying earlier legal principles and associating xenophobic organisations like Dudula with impoverished communities.
- The judge emphasized that courts must apply the law and protect constitutional rights rather than reflect public opinion or popular sentiment against foreign nationals.
A Johannesburg High Court judge has ruled that asylum seekers cannot be kept behind bars once they indicate that they want to apply for refugee status, while sharply disagreeing with another recent judgment that allowed their continued detention.
Judge Stuart Wilson said the law requires the immediate release of people detained under immigration laws once they express an intention to seek asylum.
Ered arrived in
Ered was arrested in
Wilson said the Constitutional Court decision fundamentally changed the legal position.
"
"Chief among those principles is that release from detention under the Immigration Act must follow immediately upon the detainee evincing an intention to apply for asylum, and asylum seeker detention is unlawful once an intention to apply for asylum has been expressed."
ALSO READ: ConCourt closes door on repeat asylum claims after final rejection
Wilson said there was consequently only one lawful outcome when Ered appeared before him.
"
But Wilson went further, openly disagreeing with another
In Mnamo v Minister of Home Affairs, the court dealt with 20 applications by prospective asylum seekers detained at
Instead, Home Affairs was directed to take immigration and refugee officials to
Wilson rejected that approach.
"I cannot support this approach. It is, in my view, without legal foundation," he said.
He said the court in the Mnamo case incorrectly relied on an earlier Constitutional Court judgment dealing with the now-defunct good-cause procedure.
"
Wilson also took issue with the Mnamo judgment's reference to the views of organisations including Dudula and March and March.
Wilson rejected that proposition.
"I do not think that the two can be treated as identical," he said.
"I have my doubts about whether xenophobic organisations have much support among the poor and the vulnerable, most of whom may well strive to avoid the egregious mistake of blaming the poverty they endure on the presence of foreign nationals in
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But Wilson said the larger issue went beyond attitudes towards foreign nationals.
Courts, he said, were required to apply the law rather than attempt to reflect what judges believed to be prevailing public opinion.
"
Wilson said courts remained duty-bound to enforce constitutional rights and freedoms regardless of what judges or members of the public thought about them.
Home Affairs did not appear in court to oppose Ered's application.
