IMMIGRATION DETENTION

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1 IMMIGRATION DETENTION

1.1 What is immigration detention?

Immigration detention refers to the deprivation of liberty of a non-national for contravening

the Immigration Act. It differs from detention under the Criminal Procedure Act with regards

to procedure, timeframes and expected outcome.

1.2 Who is at risk of immigration detention and deportation?

An ‘illegal foreigner’ is a foreigner who is in South Africa in contravention of the Immigration

Act. The following descriptions are examples of persons who are considered illegal foreigners

and who are at risk of immigration detention and deportation (this list is not exhaustive):

Undocumented migrants or ‘sans papier’: This refers to any foreign national who has

no documentation to authorize their presence in South Africa.

Asylum seekers whose applications for asylum were finally rejected, but who continue

to remain in South Africa despite having received notification to leave the country.

Any person who has overstayed on a visa issued in terms of the Immigration Act.

The law allows for illegal foreigners to be detained, pending their deportation from South

Africa. As an alternative to detention, an illegal foreigner may be allowed to depart voluntarily

from South Africa, in which case he or she will be issued with a document which allows them

to remain temporarily, whilst arranging to depart. The State may hold the foreigner liable for

the costs of their deportation.

1.3 What is the procedure for lawful immigration detention?

1.3.1 Identification

Police officers and immigration officials are authorized to request of any p erson to identify

themselves as a citizen, resident or foreigner. If there are reasonable grounds to believe that

the person is an illegal foreigner, such a person may be arrested without a warrant and

detained, pending an investigation into their documentation status. Once arrested, the

foreigner’s documentation is verified by an immigration officer against the records of the

Department of Home Affairs. If the foreigner has no documents on them, they should be

allowed to contact relatives or friends to bring the necessary documents, or be assisted by an

immigration officer to take the necessary steps to obtain the original document. It is therefore

important for foreigners to always carry their document, or a certified copy with them .

Someone who was declared an illegal foreigner, and who has received the decision to be

deported, may challenge the decision through a review process addressed to the Minister of

Home Affairs. It must be noted, however, that access to this procedure is lengthy and costly,

while the foreigner may be forced to depart whilst awaiting the outcome of the r eview.

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©Zhukovsky | Dreamstime.com - Police Cars at Sani Pass Border Control between South Africa and Lesotho

1.3.2 Detention of illegal foreigners

A warrant of detention is issued by an immigration officer. If someone had been arrested and

identified by an immigration officer as an illegal foreigner, the immigration officer must inform

the detainee of the decision to be deported in writing. The detainee may be held for up t o 30

days without a warrant of court. An immigration officer may request the court to extend the

period of detention by up to 90 days. The illegal foreigner must be informed of this in writing

and has the right to make written submissions to the court, exp laining why the detention

should not be extended.

The detainee has the right to request that the detention be confirmed by a warrant of court

within 48 hours of making such request. The request should be made in writing either through

the police officers responsible for the detainee, or through an external representative.

Depending on the circumstances of the person, the court may order the person’s release, or

may confirm their detention. If the detainee is not brought before a court within 48 hours of

making such request, he or she should be released immediately and further detention will be

unlawful. The illegal foreigner has the right to legal representation when appearing in court. If

the person cannot afford an attorney, they may request to be assiste d by an attorney from the

Legal Aid Board at no cost.

Throughout the detention process, the illegal foreigner is usually transferred from police

holding cells to a prison, and then transported to an immigration detention centre. At present,

the Lindela Repatriation Centre in Gauteng Province is the only such facility in South Africa.

Illegal foreigners from neighbouring countries apprehended closed to the borders, are not

necessarily detained at Lindela and are deported directly. An illegal foreigner may be detained

for a maximum period of 120 days. Immigration detention exceeding 120 days is unlawful and

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the foreigner has the right to be released. This time period starts from the time that the

foreigner is first arrested and includes any time spent in pol ice or other detention. The

detention may only be extended by court order every 30 days.

Whilst detained, the South African government arranges the deportation of the illegal

foreigner with the receiving country. It may happen that the embassy of the recei ving country

refuses to acknowledge the foreigner as their citizen, which effectively means that the person

is stateless, or without means to prove their nationality. If deportation is not possible as a

result of statelessness, the person may not be detained for longer than 120 days and upon

release, the person should seek legal assistance.

1.3.3 Deportation

Deportation refers to the lawful, yet forced removal of a person to the country of which he or

she is a citizen.

In order to deport an illegal foreigner, officials of the Department of Home Affairs obtain

authorization from the foreigner’s country of origin, to ensure that he or she will be received

upon their return. This is done through negotiation and collaboration with the relevant

consulate or embassy. In the case of some neighbouring countries, this is done by the

immigration officials present on either other sides of the border. A one -way travel document

or ‘laissez-passer’ can be issued to facilitate one -way movement.

A person who has been deported wi ll be declared an ‘undesirable person’ and may be

prohibited from returning to South Africa for a period ranging from 12 months to five years,

depending on the circumstances of their case.

1.4 What are the rights of a person held in immigration

detention?

The following are some of the basic rights of a person held in immigration detention:

- The right to call someone to bring the necessary documents to prove legal stay in

South Africa;

- The right to be informed, in writing, of the decision to be deported on the gr ounds of

being an illegal foreigner;

- The right to request that immigration detention be confirmed by a warrant of court

within 48 hours of such request and the right to be released if no warrant is issued

within this time;

- The right to be notified in writing of the immigration officer’s request to the court to

extend detention beyond 30 days, and the right to respond hereto in writing;

- The right to be released if the detention period exceeds 120 days;

- The right to review the decision to deport; and

- The right to basic minimum standards of detention (which relates to material and

procedural matters, including food, safety, protection from violence and

mistreatment, hygiene and so on).

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1.5 What happens to the children of persons held in

immigration detention?

If the illegal foreigner who is detained for purposes of deportation is the primary caregiver of

minor children in South Africa, it must be ensured that the family is not separated and that

the children are not left behind alone.

As a general rule, the detention of children is allowed only as a measure of last resort and

must be for the shortest possible period. If detention of a child cannot be avoided, minimum

standards of detention of children must be met. Children in detention must not be separated

from their parents or caregiver, but must be separate from other adults. Children should be

accommodated in facilities that are appropriate to their age, provided that they not be

separated from their parent.

©Smandy | Dreamstime.com – Child Refugees, Kanyosha, Burundi

1.6 Can unaccompanied or separated foreign children be

detained and deported?

Unaccompanied foreign children are deemed to be in need of care and protection and they

therefore have the right to access the child protection system under the Children ’s Act.

Children who appear to have a claim for asylum are additionally protected by the provisions of

the Refugees Act and should be assisted to claim asylum. Unaccompanied minors should not

be held in immigration detention. A foreign child may not be deported into the unknown and

repatriation is only admissible if this is determined, by a social worker or the Children’s Court,

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to be in the child’s best interest. Repatriation would therefore involve the intervention of a

social worker and the Children’s Court.

1.7 Can asylum seekers and refugees be deported?

A person who has claimed asylum, but whose status has not yet been finally determined, may

not be detained and deported under the Immigration Act. Refugees whose refugee status had

not been withdrawn, may also not be deported under the Immigration Act. Deportation of an

asylum seeker or a refugee may amount to refoulement and is prohibited under international

and national law.

Persons who intend to claim asylum, but have not yet done so for any reason, are protected

from deportation by the Refugees Act. If the detainee is undocumented, but has the intention

to claim asylum, they should declare this intention upon arrest or to the court. Putative

refugees should be released from custody and allowed to claim asylum upon expressing an

intention to do so. However, if the person has been present in South Africa for a long period of

time without having made an effort to apply for asylum, the court may find that the person ’s

expression is not credible and that they have no real intention to apply for asylum.

For more information please contact:

Legal Resources Centre (National Office)

15th and 16th Floor, Bram Fischer Towers, 20 Albert Street,

Marshalltown, Johannesburg

Email: info@lrc.org.za

Tel: +27 11 836 9831

Opening Hours