B A v Minister of Home Affairs and Others [2023] ZACC 16 (12 June 2023)

Section 12(1) of the Constitution — principle of non-refoulement — section 49(1) and 34 of the Immigration Act 13 of 2002 — illegal foreigner’s intention to apply for asylum — lawfulness of detention.

The court noted the undeniable infringement of the applicant's section 12 right to freedom and security of person under the Constitution, establishing jurisdiction. Recognizing the urgency, given the applicant's ongoing detention and imminent deportation threat to a country with potential harm, the court granted leave for a direct appeal in the interest of justice.

Addressing whether the applicant could be released from immigration detention upon expressing asylum intention, the court referred to Regulations, determining that the declaration must occur at a port of entry. Sections 4(1)(h) and (i) and 21(1B) of the Refugees Amendment Act, along with regulations 7 and 8(3), provided illegal foreigners an opportunity to declare asylum intention in an interview with an immigration officer if they did not express it at a port of entry.

Concerning the time period for illegal foreigners to apply for an asylum seeker permit, the court followed Ruta and Abore cases, emphasizing that once the intention is expressed, applicants should be given an opportunity. Any delay in expressing intention does not disqualify asylum applications, and the principle of non-refoulement protects applicants from deportation until their refugee status is conclusively determined.