The agreement promised legal accommodation. The men ended up in a maximum-security prison. More than a year later, the legal chain governing their confinement and release remains unclear.
This investigation is part of The Deportation Project — Inside the Trump administration’s secret deals to expel people worldwide, a collaborative investigation led by Forbidden Stories involving 26 media organizations in 15 countries.
By Inhlase Reporter
When the first five men arrived in Eswatini on 16 July 2025, the agreement that brought them there had already been signed.
But the document contained no provision saying they would be imprisoned.
Instead, the US–Eswatini Memorandum of Understanding said Eswatini would provide each third-country national with “appropriate immigration status or other legal accommodation” under Eswatini law for up to one year. It also said the United States would engage the International Organization for Migration or another service provider, where necessary, to assist with further relocation within one year of arrival. Inhlase and its consortium partners have seen the agreement.
The men were nevertheless taken to Matsapha Correctional Complex, a maximum-security prison.
That created a gap between what the agreement described on paper and what happened after the aircraft landed.
The missing legal bridge
The MOU establishes a framework for receiving the men.
The United States selects the people it wants to remove and provides Eswatini with information about them. An Eswatini liaison then confirms that the group may be removed to the country. The United States organises the flight.
Once they arrive, however, the document becomes less specific.
Eswatini undertakes to apply its immigration procedures and provide appropriate immigration status or another form of legal accommodation.
It also agrees to act in accordance with its national laws and international obligations, including its obligations under the Refugee Convention, the 1967 Protocol and the Convention Against Torture.
But the MOU does not identify Matsapha Correctional Complex as the place of accommodation.
It does not establish a criminal sentence for the people being transferred.
It does not specify a detention procedure.
And it does not identify the domestic legal instrument under which a person can be confined in a correctional facility after arriving as a third-country national.
That does not establish that no such legal authority exists. There may be domestic laws, administrative decisions or other instruments outside the MOU.
But those instruments are critical to understanding what happened to the men.
The distinction became particularly important because the government has said the deportees are not serving Eswatini prison sentences.
On 11 August 2026, Acting Government Spokesperson Thabile Mdluli said the third-country nationals were not serving prison sentences in Eswatini and that their individual circumstances were not necessarily identical.
Sibusiso Nhlabatsi, who represents six of the men, draws the same distinction. In an interview with Inhlase, he said the men had served their US prison sentences and had been rehabilitated
He wondered: “Why do you deport them to be also further confined in a prison when they’ve served prison time and they’ve been rehabilitated?”
That leaves their status in a different category from ordinary prisoners.
Nhlabatsi said some of the men could not simply be returned to their countries of origin because they had originally left those countries because they feared persecution. The U.S. government told the consortium that third-country removals are used for people whose home countries will not accept them, including people with final orders of removal. It said that when a person challenges removal to their home country in court,
“We are required by law to find a safe and secure nation for them to go to.”
For people who choose to return home, DHS said the government offers a free flight and a $3,000 payment.
The statement does not explain what legal or administrative process determines whether the third country is “safe and secure,” nor does it address the specific safeguards available to people after they arrive in countries such as Eswatini.
For men who cannot safely return home, Nhlabatsi said the process underway involves UNHCR and IOM assessing whether another country could accept them as asylum seekers or refugee.
“The only process is the engagement by the UNHC and IOM… to see if it is possible to have them as asylum seekers or refugees in other countries other than their countries of origin,” he said.
Nhlabatsi said he had not conducted a head count, but believed a significant number faced difficulties returning to their countries of origin.
“If that fails it means they are going to be here (Eswatini) indefinitely.”
The US government gave a different explanation for why people in this position are sent to third countries.
In response to questions from the consortium, the Department of Homeland Security said third-country removals involve people whose home countries will not accept them, including people with final orders of removal. DHS said that when a person challenges removal to their home country in court, the US government is “required by law to find a safe and secure nation for them to go to.”
The response did not explain what process determines whether a receiving country is “safe and secure” for an individual deportee, or what protections apply after the person arrives there.
IOM, however, does not determine where a person is deported, does not make migration policy and does not engage in detention or forced movements
According to the IOM press statement, its assistance begins after arrival. It works at the request of the receiving government.
It assesses safeguards including legal stay arrangements, freedom of movement and access to international protection.
Voluntary return requires individual counselling, protection screening and informed consent. IOM can assist with finding and assessing solutions, but it does not possess the authority to release a person from Eswatini’s correctional system.
The men in Matsapha were brought into the country through an immigration arrangement but were housed in a prison.
And that is where the first legal challenge emerged.
The fight for a lawyer
For months, the men struggled to obtain meaningful access to a local lawyer.
The men have already had to go to court simply to secure access to their lawyer.
Sibusiso Magnificent Nhlabatsi sought access to four of the first group.
The government opposed the application.
One of the government’s arguments was that the men had not been arrested or charged with offences and therefore did not have the same entitlement to legal representation associated with criminal proceedings.
In April 2026, Eswatini’s Supreme Court ruled in Nhlabatsi’s favour.
The court’s decision allowed the four men to have access to a local lawyer after they had spent about nine months in Matsapha without in-person legal access. The judgment is recorded by EswatiniLII as The Commissioner General of His Majesty’s Correctional Services N.O. and Another v Nhlabatsi (102 of 2025) [2026] SZSC 14 (9 April 2026).
The ruling did not determine whether the entire US–Eswatini deportation arrangement was lawful.
It dealt with access to legal representation.
But the case exposed the unusual position of the men.
They were physically inside a correctional facility, yet the government did not treat them as ordinary prisoners serving sentences.
Their status mattered because it affected the legal route through which they could challenge their confinement.
A court case that did not answer the detention question
The uncertainty surrounding the arrangement was also tested directly in the High Court.
The Eswatini Litigation Centre, together with other applicants, challenged the government’s handling of the agreement in Civil Case No. 1775/2025.
Among the relief sought was an explanation of the legal basis for receiving and detaining the deportees, as well as disclosure of the agreement and its financial benefits.
The High Court dismissed the application on 3 February 2026.
But it did so on the question of standing.
The court therefore did not reach the substantive constitutional questions surrounding the agreement or determine whether the detention of the deportees was lawful. EswatiniLII records the case as Eswatini Litigation Centre and Others v Prime Minister of Eswatini N.O. and Others, [2026] SZHC 105. The High Court’s decision did not determine whether the agreement or the men’s continued detention was constitutional.
The court dismissed the challenge brought by the Eswatini Litigation Centre and its co-applicants on standing grounds. The Supreme Court subsequently secured the men’s access to local counsel, creating a different route for the men themselves to obtain legal advice about their status and rights.
Nhlabatsi said that individual litigation remained possible. That left an unusual legal situation.
Melusi Simelane, Civic Rights Programme Manager at the Southern Africa Litigation Centre (SALC) and an MA International Relations student at the University of Sussex, said the Supreme Court’s decision meant the men could now approach the courts through legal representation.
“Yes, because the Supreme Court has granted them access to legal representation it means they can approach the courts.”
Simelane distinguished that possibility from the earlier ELC case:
“The other case that was dismissed on standing is different.”
Phone Chomsavanh was still waiting.
More than a year after arriving in Eswatini, the man who had expected a “second chance at life” did not know when he would leave.
“When you commit a crime, you get a sentence, you get an out date,” he told the consortium. “But by us not being in a commit a crime, are we in prison? We don’t get no release date.”
One court challenge had asked whether the arrangement itself complied with the Constitution.
The case ended without that question being decided.
A separate Supreme Court case established access to a lawyer.
But it did not determine the legal basis for keeping the men inside Matsapha.
The central issue remained unresolved.
The exit became as important as the entry
The arrangement was never intended, at least on paper, to leave people permanently in Eswatini.
The MOU says Eswatini would provide legal accommodation for up to one year and that the United States would engage IOM or another service provider to assist with further relocation within one year of arrival.
Some people have since left.
Seven of the 32 people transferred to Eswatini had left the country by 3 September 2026.
The first departure was Orville Etoria, the Jamaican national transferred with the first group in July 2025. The Eswatini government announced his repatriation on 23 September 2025, saying he had returned voluntarily to Jamaica with assistance from the International Organization for Migration. CNN/Africanews and Amnesty International subsequently reported his return.
The second was Pheap Rom, a Cambodian national from the October 2025 group. On 25 March 2026, the Associated Press reported that Rom had been released from Matsapha and was being repatriated to Cambodia after five months in detention.
The next departures came in August 2026. In a statement issued by Acting Government Spokesperson Thabile Mdluli, the government said a Mauritanian national who had arrived with the July 2026 group was repatriated on 15 August, after requesting to return home to reunite with his family. A national of the Democratic Republic of Congo, from the March 2026 group, departed on 16 August after making a similar request. The government described both returns as voluntary repatriations.
A Somali national from the July 2026 group was then repatriated after requesting to return to Somalia and reunite with his family, according to a statement by Mdluli.
The government subsequently announced two further departures. A national of the Democratic Republic of Congo left on 2 September 2026, and a national of Cameroon left on 3 September, both following arrangements for voluntary return, according to a government statement issued by Mdluli.
That brings the running total to seven departures: one in September 2025, one in March 2026, three in August 2026 and two in September 2026. Of the 32 people transferred to Eswatini by 31 August 2026, 25 remained in the country as of 3 September 2026.
The government has described some departures as voluntary repatriations and said it was working with relevant authorities and partners to facilitate them.
The departures show that people transferred to Eswatini can eventually leave.
But the mechanism is less clear.
The MOU anticipates onward relocation and involvement by IOM or another service provider. It does not establish a detailed public process setting out who makes the final decision to release an individual or who has ultimate responsibility for arranging their departure.
That becomes especially significant for people who remain after the one-year period contemplated in the agreement.
The one-year problem
The first five men arrived in July 2025.
Their one-year point therefore came in July 2026.
By then, not everyone from the original group had left.
Meanwhile, new groups continued arriving.
The consortium’s verified database records 32 people transferred to Eswatini by 31 August 2026.
The government also announced the arrival of two more Latin American third-country nationals on 27 August, describing them as being received under established procedures for “admission and temporary hosting.”
The programme therefore continued beyond the point at which the first group reached the one-year mark.
Yet the MOU itself does not explain what happens after that period.
It says “up to one year.”
It does not spell out a transition mechanism for people who remain.
That is not merely a question of timing.
It is a question of status.
IOM’s safeguards
The International Organization for Migration has now provided an important description of the safeguards it says it considers before agreeing to work in countries receiving third-country nationals.
In a statement issued on 15 September 2026, IOM said its support begins only after people arrive, only at the request of the receiving government and only where essential safeguards are in place.
Among those safeguards, IOM specifically listed:
- legal stay arrangements;
- freedom of movement; and
- access to international protection.
IOM also said it does not decide who is removed and does not engage in forced movements or detention.
Its role, it said, is to provide assistance after people have already arrived, including health care, counselling and protection screening.
That distinction is important.
The US government made the removal decisions.
Eswatini agreed to receive the people.
But IOM says that before it works in a receiving country, it assesses whether essential safeguards can be put in place.
That makes the Eswatini arrangement particularly important to examine.
The MOU itself anticipated IOM involvement in onward relocation.
So, the relevant question is not whether IOM decided to deport anyone.
It did not.
The question is whether the conditions IOM says it requires were present in the system into which the deportees were placed.
A legal grey area
Dana Schmalz, a researcher at the Max Planck Institute for Comparative Public Law and International Law, told the consortium that the legal framework governing third-country removals does not turn simply on whether an agreement expressly prohibits a transfer. The destination country’s own human-rights obligations and the procedural safeguards available to the person being transferred also matter.
In her analysis, the receiving country has to be considered separately from the country that ordered the removal.
The fact that the United States had authority under its own system to remove a person does not, by itself, establish the legal authority of another country to confine that person after arrival.
The conditions of detention and the safeguards available to the individual therefore become central.
Schmalz also discusses the broader legal principle of control over a person’s body and location, and the importance of judicial safeguards where a state restricts that freedom.
Her analysis is a legal-theoretical assessment, not a finding that Eswatini’s arrangement is unlawful.
But it helps isolate the problem.
The US–Eswatini MOU explains how people are selected and transferred.
It says something about how they should be accommodated.
It says something about onward relocation.
But it says little about the legal bridge between arrival and confinement.
The system continues
The uncertainty has not stopped the programme.
By the end of August, the consortium had documented 32 people transferred to Eswatini.
The country had become one of 28 receiving countries known to have actually received third-country nationals under the Trump administration’s wider programme.
Some people had been returned home.
Others remained.
And new people continued to arrive.
The agreement also allows either the United States or Eswatini to discontinue participation at any time through diplomatic channels.
But the document does not establish a detailed transition regime for people already in Eswatini if the agreement ends.
The system therefore has a clear mechanism for bringing people into the country.
The legal framework governing what happens to them afterwards is much less visible.
Who has the key?
The story began with a removal decision made in the United States.
It continued with an agreement under which Eswatini accepted responsibility for receiving up to 160 people.
The MOU provided for money, immigration accommodation and onward relocation.
But the men experienced the arrangement inside Matsapha Correctional Complex.
The courts have addressed some of their rights, including access to a lawyer, but have not finally determined the legality of their detention.
IOM says receiving countries must be able to provide safeguards including legal stay, freedom of movement and access to international protection before it engages.
And the first group has now passed the one-year point contemplated by the agreement while some people remain in the country.
By the time the first year approached, there was still no single outcome for the men sent to Eswatini. Some had left voluntarily. Others were being considered for onward relocation or other arrangements. The MOU provides for legal accommodation for up to one year and says the United States will engage the IOM or another service provider to assist with further relocation. But for those who remained, the reporting did not establish a clear point at which the restrictions on their movement would automatically end.
Phone Chomsavanh was one of them.
When he was taken from US immigration custody in June 2025, he believed he was finally being taken to Laos, the country listed in his removal order. Instead, he learned shortly before landing that he was being sent to Eswatini.
More than a year later, the question that had followed him across two continents remained unresolved: when would he be able to leave?
“When you commit a crime, you get a sentence, you get an out date,” Chomsavanh told the consortium.
“But by us not being in a commit a crime, are we in prison? We don’t get no release date.”