Court ruled that a delay in applying for refugee status does not
affect a person’s right to apply for recognition as a refugee
The Constitutional Court has ordered the South African government not
deport an Ethiopian national until the finalisation of his application
for recognition as a refugee.
The judgment, delivered in December, is important for undocumented
immigrants who have not timeously applied for refugee status.
In 2020 Desta Abore, an Ethiopian national, was arrested for entering
and living in South Africa without the relevant documents in violation
of the Immigration Act. He pleaded guilty at the time and the Eshowe
Magistrates Court sentenced him to 50 days in prison or to pay a
R1,500 fine. He paid the fine, but was not released.
Abore then approached the Durban High Court for an order declaring his
detention unlawful. He also wanted to prohibit the government from
deporting him until he had been allowed to apply for refugee status
under the Refugee Act.
In court papers Abore said he had fled Ethiopia because he was
involved in political activities and faced the death penalty. He said
that he entered South Africa illegally through Zimbabwe.
Abore said it was always his intention to apply for asylum and seek
refugee status. He said he was unable to not apply for asylum
immediately because of the Covid lockdown and then long queues at the
Refugee Reception office in Durban.
It was never made clear when he actually entered South Africa because
he gave contradictory dates to the court, and his attorneys, about
when he entered the country.
The Durban High Court granted a temporary order prohibiting the
government from deporting Abore until he had an opportunity to argue
why he should be allowed to apply for refugee status. However, Abore
failed to take steps to finalise the case.
The interim order lapsed, and the government successfully applied for
a warrant for his detention pending his deportation to Ethiopia. He
was then detained in the Lindela repatriation centre.
Abore then applied to the High Court in Johannesburg for his immediate
release so that he could apply for refugee status.
High Court dismisses Abore’s application
In March 2021, the High Court in Johannesburg dismissed Abore’s
application to be released. The court also dismissed the argument that
his detention was unlawful.
In court papers, Judge Leonard Twala stated that Abore should have
applied for asylum soon after entering the country. It was not
sufficient for him to only tell the government that he intended to
apply for asylum after being arrested.
“The applicant is not approaching this court with clean hands since he
has been living in the Republic for four years without the necessary
documentation. It is therefore not open to the applicant to demand
that he be afforded the protection of the law because that would be
tantamount to rewarding him for breaking the law”, Twala said.
Abore also never told the authorities after his arrest that he would
be persecuted if deported to Ethiopia and he never told the magistrate
that he wanted to seek asylum. Judge Twala said that Abore could not
rely on the fact there were long queues at the Refugee Reception
office to justify his failure for not applying for refugee status
timeously.
The High Court also rejected the argument that Abore’s detention was
unlawful. This was because his detention complied with the Immigration
Act, Twala ruled.
Abore was released in June 2021 after the warrant authorising his
detention at Lindela had lapsed. After his release, the Department of
Home Affairs told him to leave the country by July or he would be
deported.
Abore then brought an application to appeal the High Court order
directly to the Constitutional Court. He also obtained an order from
the High Court prohibiting his deportation until his Constitutional
Court appeal was finalised.
The Appeal
Abore argued that the High Court failed to consider that once he said
he had an intention to apply for asylum, he had a right to be released
and given a temporary permit to allow him to apply for refugee status.
He said that it was irrelevant that he lived in the country illegally

for several years before he stated that he had an intention to apply
for refugee protection.
Abore told the court he would suffer irreparable harm if he was not
allowed to apply for asylum. This was because he would potentially
face the death penalty if he was deported to Ethiopia.
The Minister of Home Affairs opposed the appeal. He argued that Abore
gave contradictory dates about when he entered the country and failed
to take immediate steps to seek asylum.
The minister also argued that recent amendments to the Refugee Act,
which came into effect in 2020, had changed the law. According to the
Minister, the effect of these amendments was that undocumented
immigrants no longer have an automatic right to demand their release
from detention to apply for asylum.
This is because the amended Act and new regulations state that people
applying for refugee status must first be interviewed by an
immigration officer. They must show the immigration officer they have
“good cause” for entering the country illegally and must explain why
they did not seek asylum at an official point of entry. An
undocumented immigrant who does not first show “good cause” cannot
demand their immediate release to apply for asylum, the minister said.
Constitutional Court proceedings
Justice Zukisa Tshiqi, in a unanimous ruling, said the case had three
issues.
The first was whether it was in the interests of justice that Abore be
allowed to approach the Constitutional Court directly, without first
going to the Supreme Court of Appeal. Second, whether an undocumented
foreigners should be barred from applying for refugee status when they
fail to apply timeously. And third, whether Abore’s detention was
unlawful.
Justice Tshiqi said that the interests of justice required that the
Constitutional Court should decide the appeal directly.
Tshiqi said it was necessary to clarify whether a delay in applying
for refugee status prevents a person from later applying for refugee
status. Second, it was necessary to determine whether the 2020
amendments to the Refugee Act had removed the automatic right of an
undocumented foreigner to demand their release from detention so they
could apply for asylum.
She said a delay by an undocumented immigrant in applying for refugee
status does not affect their right to apply for recognition as a
refugee. Tshiqi found that any delay in applying for refugee status is
only relevant to determine whether someone is a genuine refugee. “It
should at no stage function as an absolute disqualification from
initiating the asylum application process.”
Tshiqi said the Minister’s argument that the 2020 amendments had
removed the automatic right of a foreigner in the country illegally to
demand their immediate release from detention to apply for asylum was
misplaced.
She said that an undocumented person who seeks refugee status can only
be deported after their application is rejected. Abore was therefore
protected by the principle of non-refoulement and could not be
deported until his application for refugee status had been finalised,
Tshiqi said. (The non-refoulement principle means that under
international law asylum seekers cannot be returned to a country where
they face persecution for “race, religion, nationality, membership of
a particular social group or political opinion”. -
The Constitutional Court ruled that Abore should have been released
from custody after he paid the admission of guilt fine. His detention
after he paid the fine was therefore unlawful.
The court ordered the government to not deport Abore until his
application for recognition as a refugee had been finally determined.
The Minister and Director General of Home Affairs were ordered to pay
Abore’s legal costs for the proceedings in the High Court and
Constitutional Court.
www.samigration.com V.3894

One of the highlighted topics: Critical Skills Visa.

- Key Insight: Is your profession on the Critical Skills List? This visa is your fast track to working in South Afr...
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One of the applicants, Phindile Mazibuko, became a victim of identity theft in 2012 when fraudulent transactions occurred, using her personal details.

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-LHR appeals extension, urges affected people to seek help now.

Lawyers for Human Rights (LHR) are intensifying pressure on the department of home affairs over the national ID-blocking crisis, accusing the state of acting too slowly to unblock qualifying individuals despite a landmark court ruling.

In January last year, the Pretoria High Court found that the department`s practice of blocking IDs without due process was unlawful and unconstitutional. One of the applicants, Phindile Mazibuko, a Swati citizen and South African permanent resident since 1998, fell victim to identity theft in 2012 when fraudsters used her personal details.

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The Border Management Authority (BMA) has doubled its staff at Airports in South Africa , including immigration officers.

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The Border Management Authority (BMA) has doubled its staff at Airports in South Africa , including immigration officers.

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A Washington state mother and her 6-year-old son have been released after spending more than three weeks in US immigration detention due to a brief trip to Canada and a small paperwork mistake, her attorney told CNN on Saturday.

Sarah Shaw, a New Zealand citizen who has lived legally in the US since she arrived in 2021, was detained at the Blaine, Washington, Customs and Border Protection checkpoint when returning home after dropping her two oldest children off at the Vancouver airport for a flight to visit their grandparents in New Zealand. Shaw, 33, chose the flight out of Vancouver because it was direct and she didn`t want her children to have to navigate a layover alone, her attorney Minda Thorward, told CNN.

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On 22 July 2025, the Gauteng High Court dismissed Sitrusrand Boerdery`s review of the Department of Employment and Labour`s refusal to issue a Working Conditions and Salary Benchmarking Certificate, an essential precondition for obtaining corporate visas under the Immigration Act.

Acting Judge Kekana AJ held that the Department`s decision was lawful, rational and procedurally fair. This judgment illustrates how businesses can - and must - structure their corporate visa applications to meet statutory requirements, and how legal practitioners should prepare robust review challenges when administrative authorities decline to recommend foreign-work permits.

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The United States could forfeit an estimated 9.4 billion dollars in visitor spending over the next three years following the introduction of a new 250 dollars `visa integrity fee,` according to industry groups, who warn the policy risks undermining tourism and costing thousands of jobs.
The United States’ decision to introduce a 250 dollars `visa integrity fee` on international visitors has triggered sharp criticism from the global tourism industry, with officials warning that the measure could deter millions of travellers and cost the U.S. economy billions.
The 250dollar `visa integrity fee,` part of the One Big Beautiful Bill Act signed on July 4, 2025, will take effect later this year. According to immigration law firm Envoy Global, it applies to all nonimmigrant visa holders which include students, tourists, temporary workers, and business visitors particularly from African countries. V.6132
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The Border Management Authority (BMA) has doubled its staff at Airports in South Africa , including immigration officers.

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1. Right to Legal Representation•You have the right to consult with a legal representative.•Contact an immigration practitioner, legal aid clinic, or attorney urgently.•Do not sign any documents without understanding them fully. 2. Section 34 of the Immigration Act•You must be brought to court with 48 hours to confirm arrest but you can remain locked up very long as courts figure out what to do with you •If you`re found to be illegally in South Africa, you may be detained for up to 30 days (extendable by a magistrate) pending deportation.•BUT this cannot happen arbitrarily. You must be informed of your rights, and Home Affairs must follow due process.- becomes a nightmare , you could lose your job , business , place to stay V.6121
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Driving for Bolt, Uber, Mr D, or Checkers Sixty60?If you`re undocumented, you`re risking more than just your income.The Risks if You`re Not Legal: - Vehicle impoundment - Heavy fines - Arrest & deportation - Permanent bans from working in SA V.6122
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