Parliament urged to pass law on protecting detained immigrants in SA

Eight years after a court deadline for Parliament to pass a new law protecting the rights of detained undocumented immigrants, the Immigration Amendment Bill is nearing finalisation.

Parliament was ordered by the Constitutional Court in 2017 to amend the Immigration Act within 24 months, after sections of the Act relating to the detention of undocumented immigrants were found to be unconstitutional. The case was brought by Lawyers for Human Rights.

But the Department of Home Affairs and Parliament have dragged their feet in amending the Act. Lawyers for Human Rights say the delays have caused confusion and uncertainty, with magistrates taking “divergent positions” on how to implement the Act.

In 2023, another Constitutional Court ruling ordered that undocumented immigrants may only be detained if it is in the interests of justice and that detainees must be brought before a court within 48 hours.

The court did not agree with the department’s reasons for delaying the amendment of the Act and made a personal costs order against the then home affairs minister, Aaron Motsoaledi, saying that “this litigation has been conducted in a dreadful manner”.

The Immigration Amendment Bill, which aligns with the Constitutional Court order, was finally introduced to Parliament in April 2024. Over the past two weeks Parliament’s Portfolio Committee on Home Affairs has heard oral submissions from civil society on the proposed Bill. The committee was urged in all the submissions to pass the Bill as soon as possible to prevent further delays.

Matthew Parks of the Congress of South African Trade Unions (Cosatu) described the Bill as “progressive”. During a presentation on Tuesday, Parks said that “illegal immigration had become a serious threat to South Africa, rule of law and socioeconomic stability” and that officials should be “fully empowered to enforce the law and fulfil their mandate”.

Cosatu supported the requirement for detained persons to appear before a court within 48 hours. However, Parks cautioned that “mechanisms must be found” to ensure there are no delays which will be costly for the state.

But several human rights organisations believe that although the Bill complies with the Constitutional Court order, it does not go far enough to ensure that detention is only used as a last resort, and not a default option, when dealing with undocumented immigrants.

Professor Thuli Madonsela of the Centre for Social Justice at Stellenbosch University told the committee that although with the Immigration Amendment Bill the department has strictly complied with the Constitutional Court judgments, more should be done to ensure access to legal support and language services, and to ensure that judicial review within 48 hours of detention is possible.

Nyeleti Baloyi from Lawyers for Human Rights stressed that detention must always comply with international standards. Detention of immigrants in the past has raised serious human rights concerns, Baloyi told the committee.

The South African Human Rights Commission (SAHRC), during its presentation last week, criticised delays in adhering to the court judgments and called for open engagement by the department and the minister.

Home Affairs Minister Leon Schreiber’s spokesperson, Duwayne Esau, had told GroundUp that the minister was happy to engage with the SAHRC and will set up a meeting.

The Centre for Child Law’s Fortunate Mongwai recommended that the Bill be amended to clearly stipulate that undocumented children should be protected regardless of their documentation status, and that age assessments must be conducted when detained undocumented immigrants are suspected to be younger than 18.

James Chapman of the Scalabrini Centre of Cape Town said the Bill does not explicitly ensure that children are not detained. He called for further amendments to ensure that refugees, including asylum seekers and survivors of human trafficking, are protected from detention.

Chapman said detention and deportation are costly, and resources should rather be spent on improving systems and services. DM

First published by GroundUp.