The court a quo held that detention of an asylum seeker was compatible with the right given by the Refugees Act 130 of 1998 to ‘sojourn’ in the country temporarily. Referring to s 22 of the Refugees Act, the court a quo found that the right to ‘sojourn’ ‘does not necessarily entail a right to go about freely in South Africa with[out] any restrictions. The court reasoned that the appellant was not
going to be deported or sent out of South Africa pending the outcome of his appeal relating to asylum status and was thus sojourning in South Africa. The Supreme Court of Appeal disagreed, stating that a sojourn is not the same as the detention of a person in a place against his will.
The respondents argued that the appellant became an ‘illegal foreigner’ after the expiry of the asylum transit permit granted to him. An ‘illegal foreigner’ is a foreigner who is in the Republic in contravention of the Immigration Act. Section 23(2) of the Immigration Act provided that ‘[d]espite anything contained in any other law’ the holder of an asylum transit permit becomes, on expiry of the permit, an ‘illegal foreigner’ liable to be dealt with under the Immigration Act. However, s 21(4) of the Refugees Act provided that ‘[n]otwithstanding any law to the contrary’ no proceedings may be instituted or continued against any person in respect of his or her unlawful entry into or presence in the country if that person has applied for asylum in terms of s 21(1) until a decision has been made on his or her application and that person has had an opportunity to exhaust his or her rights or review or appeal in terms of the Refugees Act. The two provisions could be reconciled with each other without doing violence to their wording and in accordance with the spirit of the international instruments the Refugees Act sought to give effect to, by holding that a person who has been issued with an asylum seeker permit was not an illegal foreigner in terms of the Immigration Act, and pending finalisation of the application for asylum and an appeal or review, he or she may not be detained.
Immigration law; refugee law; interpretation of statutes; conflicting laws; illegal foreigner; expiration of asylum seeker permit
The appellant fled Ethiopia due to political and tribal persecution and was issued with an asylum transit permit on his entering South Africa. He was arrested after expiry of his asylum transit permit. While in detention, an asylum seeker permit was issued to him. His application for asylum was refused. He made an application to the High Court for his release from detention, and was refused.
Since the appellant’s asylum seeker permit has expired and had not been extended in terms of s 22(3) of the Refugees Act, the court ordered that an asylum seeker permit be re-issued to him.
The Supreme Court of Appeal disagreed, stating that an asylum seeker, to whom an asylum seeker permit has been issued, cannot be regarded as an ‘illegal foreigner’ as contemplated by the Immigration Act. Section 23(2) of the Immigration Act ceases to be of application when an asylum seeker permit is granted to a person, and no proceedings may be instituted or continued against such a person in respect of his or her unlawful entry into or presence in the country until a decision has been made on his or her application or he or she has exhausted his or her rights of review or appeal. Moreover, detention would also be in contravention of s 2 of the Refugees Act entrenching the State’s international obligation of non-refoulement.