‘Illegal agreement’: Swaziland Rural Women’s Assembly members protest outside the Eswatini High Court. Photo: Swaziland Rural Women’s Assembly
On 25 February 2026, the US District Court for the District of Massachusetts issued a sweeping and uncompromising judgment condemning the US government’s policy of deporting immigrants to so-called “third countries” (states with which they have no meaningful connection).
By the time the ruling was handed down, individuals had been removed, without meaningful notice or due process, to destinations including Eswatini, raising urgent constitutional and international law concerns.
The March 2025 ‘Third Country Removal’ guidance: ‘Not fine, nor legal’
In forceful language, Judge Murphy opened the judgment by rejecting the government’s position in stark terms: “The department of homeland security has adopted a policy whereby it may take people and drop them off in parts unknown — in so-called ‘third countries’— and ‘as long as the department doesn’t already know that there’s someone standing there waiting to shoot … that’s fine’. It is not fine, nor is it legal.”
The state argued that discretionary executive actions in immigration matters fell beyond judicial review.
The court disagreed emphatically: “It is not within the ‘discretion’ of the executive to exceed the scope of its authority or otherwise violate the law.” At the heart of the ruling was a simple constitutional principle: no “person” within the US may be deprived of life, liberty or property without due process of law.
The court found that the liberty interests at stake were profound and that the risk of erroneous deprivation and exposure to torture or persecution was unacceptably high.
The case centres on a March 2025 directive titled “Guidance Regarding Third Country Removal”, issued by the secretary of homeland security, Kristi Noem.
Under the policy, individuals could be deported to a third country if that country provided “diplomatic assurances” against torture or persecution. No further procedures were deemed necessary.
Authorities would “not affirmatively ask” whether the individual feared removal to the designated country and the notice of removal could be as short as 24 hours.
In April 2025, a federal court certified a class of individuals at risk under the policy and ordered that they receive written notice of the intended country of removal and a meaningful opportunity to raise claims under the UN Convention Against Torture.
Yet the February 2026 judgment records repeated violations of the order. The court found that the government had little interest in the judicial process: the state repeatedly provided misleading or false information; misstated applicable law and jurisprudence; reissued the contested policy despite prior judicial findings and attempted to evade court oversight by using agencies other than the Department of Homeland Security to execute removals.
The impossibility of due process in practice
The US District Court underscored a contradiction in the policy. If individuals are not told where they are being sent or are informed only hours before removal, how can they meaningfully raise fears of persecution or torture specific to that country?
The risks are not theoretical. Evidence before the court described removals to South Sudan, Cameroon and Djibouti, during which detainees were denied access to family members and legal representatives.
The danger of chain refoulement, where a third country subsequently deports a person to the state they feared, was also realised.
A plaintiff before the court, who had survived sexual violence in Mexico and Guatemala, raised fears regarding removal to both countries. He was nevertheless transported to Mexico and from there, deported onward to Guatemala.
Such outcomes contradict the protections embedded in the Convention Against Torture.
Deportations to Eswatini
By July 2025, despite multiple court orders, the department of homeland security reissued the March policy.
Within days, a plane carrying five deportees landed in Eswatini. By October 2026, the number had grown to 15, with one person later repatriated to his home country.
A confidential agreement between the US and Eswatini reportedly permitted the staggered transfer of up to 160 immigrants.
Local civil society organisations and concerned citizens challenged the legality of the agreement before the Eswatini High Court.
The deportees themselves could not join the case: they were detained in facilities that denied them access to legal counsel.
The Eswatini high court’s response
Applicants argued that the agreement was unlawful and irrational, required parliamentary approval because it concerned a matter of national importance and rendered Eswatini complicit in violations of international and regional law.
In early February 2026, the Eswatini high court declined to treat the matter as urgent. While acknowledging the presence of US deportees, it found that the application lacked a sufficient factual basis and that the applicants lacked standing because they had no direct personal interest.
In this respect, the court ignored the importance of allowing citizens to seek judicial review of executive actions that appear to be unlawful and unconstitutional.
A broad understanding of legal standing to access courts is especially important in instances where the state avoids parliamentary accountability.
The applicants have appealed the decision. The practical consequences of such judgments can be severe: those affected cannot access lawyers; those able to access the courts are denied standing. Thus, such agreements and the detentions flowing from them remain insulated from judicial scrutiny.
Challenges in holding states to account
The US federal court’s February 2026 judgment underscores the gravity of the due process violations at issue and the importance of judicial review of executive decisions. Yet enforcement remains fraught.
Individuals are removed on short notice, without clarity about their destination, leaving no realistic opportunity to seek relief before deportation. Once abroad, they are detained without access to counsel, rendering legal challenges in either jurisdiction nearly impossible.
At a broader level, the use of confidential memorandums of understanding to facilitate third-country removals appears designed to circumvent meaningful congressional and parliamentary oversight.
Such arrangements are increasingly common not only in relation to migration but also in other domains, including public health and strategic resource access.
When courts narrow standing rules or decline urgency in matters implicating constitutional governance and human rights, the effect is to shield executive action from scrutiny.
The cumulative result is a widening accountability gap, where executive policy declared unlawful in one jurisdiction continues to operate in practice, while receiving states decline to interrogate their own role in its implementation.
The Massachusetts judgment reaffirms a foundational proposition: constitutional guarantees and international human rights obligations do not evaporate at the border, nor at the whim of executive policy.
Whether that principle will be realised in practice depends not only on courts’ willingness to articulate it but also on their readiness, across jurisdictions, to enforce it.
Anneke Meerkotter is an executive director of the Southern Africa Litigation Centre