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Asylum seekers, Newcomers be aware

Source: The Star, 20/02/2024

People going to any Refugee Reception Centre in Cape Town , Gqeberha ( Port Elizabeth ) Marabastad Pretoria & Mesina know this if you never reported to border post to get an asylum transit visa when you go for the first interview for asylum you will be arrested if you don’t have this and you will be brought before a magistrate to explain why you never got it . If you cannot convince magistrate you will be deported

Gauteng High Court rules in favour of Motsoaledi on detention of illegal immigrants

The Gauteng High Court, Johannesburg, has ruled in favour of Home Affairs Minister Dr Aaron Motsoaledi following an application by a group of illegal immigrants that their detention at the Modderbee Correctional Services Centre in Benoni was unlawful and against immigration and refugee acts.
However, the court, in its judgment, found no basis for this argument, saying the mere expression of intention to apply for asylum does not trigger the protections in section 2 of the Refugees Act 130 of 1998 section 21(1b) requirement to show good cause for illegal entry and stay in the country.
At the centre of the matter is an application made by Thomas Godiso, Abi Osman Yusuf and four others on an urgent basis, seeking to interdict the the minister and other respondents from detaining, prosecuting and deporting them until their status has been lawfully and finally determined in terms of the Refugees Act 2 as amended.
The applicants also sought declarators that their continuing detention is unlawful and that, in terms of section 2 of the Refugees Act, they are entitled to remain lawfully in the Republic of South Africa until their applications for refugee status are finally determined in terms of the same act.
In addition, the applicants also sought orders directing the minister and director-general of Home Affairs, that upon submission of their applications for asylum, the minister and others must accept same and issue them with temporary asylum seeker permits in terms of section 22 of the Refugees Act, within 15 days, pending finalisation of their asylum seeker applications, including the exhaustion of their right of review or appeal in terms of chapter 3 of the Refugees Act and the Promotion of Administrative Justice Act.
Judge Dunstan Mlambo on Thursday dismissed the application made by the six illegal immigrants, ordering the applicants to pay the minister, his director-general, and the national director of public prosecution costs for the amendment application.
“The first, second, third and fourth respondents are directed, to the extent necessary, to take all reasonable steps, within 60 days from the date of this order, to afford the applicants an opportunity in terms of section 21(1b) of the Refugees Act 130 of 1998, read with regulation (8)(3) thereto, to show good cause is not established, to unfold until it is finally determined.
“The first, second, third and fourth respondents are directed to approach the magistrate’s court, for the extension of time should the review or appeal process not be finalised within the 60-day period. The request should be accompanied by a report directed to the magistrate’s court, setting out what steps have been taken and why the process has not been finalised within the 60-day period,” the judge said in his ruling.
The applicants, some of them from Ethiopia and Somalia, have argued that they were persecuted in their home countries.
Degefa Lembore and Temesgen Matiwos were arrested on September 1, 2023, in Germiston and Johannesburg respectively, while Godiso and Teketel Hajiso were arrested on June 2 and August 3, 2023, respectively, in Daveyton. They argued in court that while living in Tigray, Ethiopia, they were persecuted by the ruling party for their political and religious beliefs due to their mobilisation efforts as members of the Ethiopian People’s Revolutionary Party, an opposition political party.
They further stated that Ethiopia’s ruling party terrorised, persecuted, tortured and killed members of their political party, including their family members, leading to seeking refuge in the country.
They also indicated that they were not aware of the procedure to be followed when applying for asylum and as a result were unaware of both the old and new regulations promulgated in terms of the Refugees Act.

Extract from Court Judgement High Court - Illegal Foreigner 2 Asylum- Osman - 8 Feb 2024
How new comer asylum will work in future

[91] Accordingly, the law may be restated as follows
91.1 It is an offence in terms of section 9(1) and 49(1) not to enter South Africa
at a port of entry and to stay in the country in contravention of theImmigration Act.
91.2 It is not unlawful to arrest and detain any person who has contravened the
Immigration Act regarding entry and stay in South Africa.
91.3 The arrest and detention of persons who have contravened the Immigration
Act does not violate the non-refoulment protection in section 2 of the
Refugees Act.
91.4 The mere expression of in intention to apply for asylum does not entitle any
person to be released from detention where such person is detained for
contravening the Immigration Act.
91.5 It is unlawful and therefore a violation of the non-refoulment principle to
deport persons who contravened the Immigration Act, if they express an intention to apply for asylum.
91.6 Persons detained for contravening the Immigration Act and who express a
desire to apply for asylum must first show good cause for their illegal entry
and stay in South Africa.
91.7 Upon the first appearance of a person arrested for contravening sections 9
and 49 of the Immigration Act, who expresses in intention to apply for asylum, the Magistrate in line with section 21(1B) and regulation 8(4) read with regulation 8(3).
91.8 At any stage of a person detentions and who evinces an intention to apply or asylum, the Department of Home Affairs must assist such a person by facilitating their interview to show good cause. 91.9 Any foreign national convicted and sentenced for transgressing sections 9 and 49 of the Immigration Act is liable to be deported in terms of section 34 unless he at that stage expresses an intention to apply for asylum. In that event such person must be assisted to attend an interview to show good cause.
91.10 Upon the successful showing of good cause, the detained person must be
assisted to apply for asylum and a temporary asylum transit visa must be
issued to such a person.
91.11 Upon the issuing of a temporary asylum transit visa such a person is entitled
to be released and must apply for asylum within the prescribed timeframes.

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