Detention of undocumented migrants should be a last resort, Lawyers for Human Rights tells Parliament

Not missing a step from its 2017 and 2023 court victories, when the Constitutional Court ruled that sections of the Immigration Act were unconstitutional, Lawyers for Human Rights (LHR) implored Parliament’s home affairs committee to consider the detention of undocumented migrants as a “last resort” during a public submission on the Immigration Bill on Tuesday, 11 February.

The meeting was convened to discuss the Immigration Amendment Bill, which the committee has been working on since July last year to bring it into closer alignment with South Africa’s constitutional values and international human rights standards, particularly on immigration and the treatment of undocumented migrants.

The Lindela Repatriation Centre outside Krugersdorp. (Photo: Supplied)

In its landmark rulings, the apex court had found that sections 34(1)(b) and (d) of the Immigration Act were inconsistent with the Constitution because they lacked clear guidelines for detention. In the original provisions, section 34(1) allowed immigration officers to arrest and detain foreigners without a warrant for deportation purposes.

Now, the Bill, which seeks to amend the existing Act, aims to ensure that undocumented migrants detained under the Immigration Act are brought before the court within 48 hours of their arrest to determine whether it is in the “interest of justice” to order further detention for deportation purposes.

Risk of arbitrary detention

LHR expressed concern regarding the Bill’s “interest of justice” clause, stating that it lacked a precise definition and guidelines. This could undermine the rights of undocumented migrants, asylum seekers and refugees by granting discretionary powers to immigration officials. The organisation warned that this discretion could lead to arbitrary detention and unfair deportation practices, putting the amendment Bill at risk of failing to pass constitutional muster.

LHR called for meticulous definitions and clear, fair processes that prioritised the protection of vulnerable individuals, ensuring that decisions were made based on established legal standards rather than subjective interpretations.

“The proposed amendments introduce important safeguards,” said LHR’s Nyeleti Baloyi, “but we must ensure that the criteria for detention, particularly the ‘interest of justice,’ are clearly defined to prevent arbitrary detention.”

Baloyi’s emphasis on the need for clear definitions and processes was informed by South Africa’s current immigration detention system, which is marred by legal ambiguities and reported human rights abuses at sites like the Lindela Repatriation Centre, the country’s main detention facility for undocumented migrants.

Alternatives

The International Detention Coalition (IDC), which was co-presenting with LHR, called for alternatives to detention to be prioritised, emphasising that holding migrants in detention centres should never be seen as the first response to immigration issues.

IDC’s Zekhetholo Cele said immigration detention raised serious human rights concerns, as it could cause long-term psychological harm and increase social instability. Additionally, the organisation cited the backlogs at the Department of Home Affairs as a serious concern, as these contributed to migrants remaining undocumented, thereby increasing the risk of detention.

The IDC also highlighted the financial burden immigration detention placed on the South African government. In January, Home Affairs Minister Leon Schrieber noted that the longer undocumented migrants stayed at Lindela, the more it cost the state.

The organisation proposed that alternatives to detention should be implemented where possible, including:

• Release into the community;


• A network of open accommodation options;


• State-funded bail and community-based accommodation and supervision;


• Release from detention pending voluntary return.

“The Immigration Amendment Bill offers a chance to reduce reliance on detention and promote more humane and effective practices in line with international human rights standards,” Cele said.

Read more: Schreiber’s big five fixes — can Home Affairs’ five-point plan resolve SA’s immigration crisis?

As the submissions drew to a close, members of the committee raised concerns about balancing the rights of individuals with public safety.

The ACDP’s Kenneth Meshoe said, “We must consider the implications of these laws on South African citizens. How do we ensure that both citizens and non-citizens are treated fairly?”

In response, representatives from both organisations emphasised that human rights were universal and should not be seen as a zero-sum game. The organisations asserted that protecting the rights of migrants did not diminish the rights of South African citizens. Instead, upholding human rights strengthened society as a whole. DM