Courts

MBABANE – Sixty-eight foreign nationals awaiting deportation have run to the High Court seeking an order compelling the police to release their passports.

They allege that their continued detention has been prolonged because the documents are being withheld. The applicants, who include nationals of the People's Republic of China, Taiwan and Indonesia, cite the national commissioner of police, the minister for Home Affairs and the commissioner general of His Majesty's Correctional Services as respondents in the urgent application.

According to the founding affidavit deposed to by Li Hai on behalf of all 68 applicants, they are currently being held at His Majesty's Correctional Services at Sidwashini following their conviction in the Mbabane Magistrates Court for contravening provisions of the Immigration Act.

In their application, the foreign nationals seek an order declaring that the alleged refusal by the police to release their passports to their legal representatives is unlawful, unconstitutional and beyond the powers of the police.

They also seek an order directing the national commissioner of police to immediately hand over their passports to Linda Dlamini and Associates for transmission to the Ministry of Home Affairs to facilitate their departure from Eswatini.

The applicants further ask the court to direct the minister for Home Affairs to take all necessary steps to facilitate their voluntary departure, including signing the required liberation warrants.

In addition, they seek a declaration that any continued detention beyond the deportation process, without new criminal charges or extradition proceedings, would violate their constitutional rights.

According to the affidavit, the applicants were arrested and charged before the Mbabane Magistrates Court during June 2026 with contravening Section 14(2)(c) and (f) of the Immigration Act.

They state that they pleaded guilty after consulting their legal representatives. The affidavit states that the magistrates court convicted them and imposed fines of E500 on each of the two counts, with six months imprisonment on each count as the alternative sentence in default of payment.

Hai states that the fines were paid. The applicants submitted further that the magistrates court ordered that those who paid the fines were to remain in the custody of Correctional Services pending deportation in terms of Section 8 of the Immigration Act.

According to the affidavit, this deportation order constitutes the only legal basis for their continued detention.

The applicants say they informed the authorities through their attorneys that they wished to comply with the deportation order voluntarily and requested authorisation from the minister for Home Affairs to facilitate their departure.

A letter dated June, 22, 2026, addressed by Linda Dlamini and Associates to the minister for Home Affairs states that the applicants had secured flight itineraries departing from Maputo International Airport in Mozambique and requested permission to leave Eswatini under escort.

The attorneys also informed the ministry that their clients were prepared to pay the costs associated with the escorting officers, including allowances for police officers and drivers, in order to reduce the financial burden on the State.

According to the filed papers, 17 of the 85 convicted foreign nationals have already been deported after their passports were released by the police to the Ministry of Home Affairs, liberation warrants were signed and they were escorted from prison to the airport.

The remaining 68 applicants contend that they have also made arrangements to finance their own deportation but have been unable to proceed because the police continue to retain their passports.

According to the affidavit, the Ministry of Home Affairs required production of the passports before signing the liberation warrants needed to complete the deportation process.

The applicants state that they cannot purchase and process travel arrangements or leave the country without their passports. The affidavit alleges that despite requests by their attorneys, the police have refused to release the documents.

They told the court that on June 29, their attorney attended at the relevant police station seeking the release of passports for five detainees who had confirmed flight bookings, following the same procedure that had been used for the first group of deportees.

“The police refused to release the passports and did not provide a legal reason for their decision. The Immigration Act does not authorise the police to continue withholding their passports after a deportation order has been issued,” argued the applicants. The veracity of these allegations is still to be tested in court.

They contend that the continued retention of the passports has prevented them from complying with the deportation order and has prolonged their detention beyond the statutory deportation process.

Their filed papers allege that the continued withholding of the passports infringes their constitutional rights, including the right to liberty, the right to a fair hearing and the right to legal representation.

The applicants also argue that the police's actions are inconsistent with Eswatini's obligations under the International Covenant on Civil and Political Rights, which prohibits arbitrary detention.

According to the affidavit, if the authorities believe any of the applicants are implicated in other offences, they should institute fresh criminal proceedings or commence extradition proceedings rather than continue withholding the passports.

The applicants submit that they have no adequate alternative remedy other than approaching the High Court for urgent relief.

They argue that every additional day they remain in custody results from their inability to complete the deportation process because their passports remain in police custody.

They also submit that the matter is urgent because issues involving personal liberty require immediate judicial intervention and because the Immigration Act contemplates deportation within 14 days of the deportation order. The State is opposed to the application and has filed a notice of intention to oppose. The matter is pending in court.

Some of the foreign nationals have accused the police of refusing to give them their passports despite that they have to be deported to their home countries. (File pic)