The appellant, Mr Kadire Ibiro Ersumo, an Ethiopian national, entered South Africa in May 2011 and was issued with an asylum transit permit valid for 14 days under s 23(1) of the Immigration Act 13 of 2002. He failed to lodge an asylum application within that period, allegedly due to practical difficulties at various Refugee Reception Offices and the theft of his permit. He was later arrested in Willowmore as an illegal foreigner and detained at Lindela Detention and Holding Facility in terms of s 34(1) of the Immigration Act. Mr Ersumo asserted that he feared persecution in Ethiopia on political grounds and wished to apply for asylum under the Refugees Act 130 of 1998. An urgent application in the Eastern Cape High Court for his release and related relief was dismissed, prompting an appeal to the Supreme Court of Appeal.
The appeal was upheld with costs. The High Court’s order was set aside and replaced with an order directing the Director-General to issue Mr Ersumo with an asylum transit permit valid for 14 days; interdicting the Minister and Director-General from deporting him pending final determination of his asylum application; directing that he be assisted to lodge an asylum application; declaring his entitlement to an asylum seeker permit upon completion of the application; and ordering his immediate release from detention at Lindela upon issue of the asylum transit permit.
This case affirms and reinforces the principle established in Bula that a foreigner may rely on the protections of the Refugees Act at any stage once an intention to apply for asylum is indicated, even if the person is an illegal foreigner under the Immigration Act. It clarifies that delay in applying for asylum is not, in itself, a lawful basis to deny access to the asylum system or to refuse the issuance of an asylum transit permit. The judgment strengthens procedural protection for asylum seekers and limits the scope of immigration detention where refugee protection is potentially applicable.