Detention and Deportation
The Immigration Act regulates how non-South Africans enter, depart from, and live in South Africa. Anyone who violates the Immigration Act can be arrested, detained and deported. The detention and deportation process is subject to several legal protections that safeguard the constitutional rights of foreign nationals who are in detention or are facing deportation.
There are certain groups of persons who may not be detained for the purposes of deportation. This includes asylum seekers and refugees, who are protected against deportation by a principle known as non-refoulment, which prevents states from returning a person to a country where they may be subjected to persecution or where their life, physical safety, or freedom would be threatened – as set out at section 2 of the Refugees Act. This also includes children, who may only be detained as a measure of last resort and who are protected by several safeguards in cases of detention
The Immigration Act defines an ‘illegal foreigner’ as a person in South Africa in contravention of the Immigration Act or someone who does not have an asylum seeker permit, formal recognition of refugee status or a refugee ID, or a valid permit or visa in their passport. The term ‘illegal foreigner’ is problematic as it carries the connotation that a person is a criminal. A person cannot be ‘illegal’ simply because they are not documented in terms of a country’s immigration laws. Where the term ‘illegal foreigner’ is used in this explainer, it is to represent the provision of the Immigration Act accurately and it is not intended to demonstrate approval of the use of the term.
The process of detention and deportation may be summarized as follows –
A police or immigration officer can ask anyone to prove their status. If there are reasonable grounds to believe a person is in the country illegally, they may be interviewed, detained, and possibly deported. If detained for deportation, the person must be brought before a court within 48 hours. Legal representation is crucial during this process. If the court confirms the detention, the person may be held for up to 30 days.
Immigration officers can extend detention beyond the first 30 days, with the detained person notified in advance. They can make representations and appear in court. Courts can only extend detention on good grounds. After 30 days, detention can be extended three times, totaling 90 days. Detainees may be transferred to the Lindela Repatriation Centre or deported directly. The Department of Home Affairs works with their country of origin to ensure their return. Deportation may result in a one-year to five-year ban.
Despite the provision of the rights and safeguards mentioned above, many persons detained at the Lindela Repatriation Centre cannot access the rights entitled to them. Detainees are frequently subjected to unlawful detention periods (including periods of over 120 days), illegal sentencing, restricted access to legal representation, a lack of availability of interpreters, corruption and bribery, and the use of force. Detention conditions are also poor, including limited access to health, food, and water, overcrowding, and unsanitary conditions. There are also reports of unlawful detention of asylum seekers and unaccompanied minors and children at Lindela.
WHAT ARE MY RIGHTS IN DETENTION?
Your rights in detention include the right:
- To be informed of the reasons for your detention and your rights in detention
- To be detained in conditions that are within minimum standards of dignity and human rights, which includes adequate accommodation, food, reading material, and medical treatment
- To be able to choose and consult with legal practitioners of your choice, or to be assigned one at State expense
- To be visited by your spouse or partner, next of kin, and chosen religious counselors or medical practitioners
- To be held separately from criminal suspects
Who can be contacted for assistance or information?
Lawyers for Human Rights
4th Floor Heerengracht Building, 87 De Korte Street corner Melle Street, Braamfontein, Johannesburg, 2001
Tel: +27 11 339 1960
Scalabrini Centre of Cape Town
47 Commercial Street, Cape Town, 8001
Tel: +27 21 465 6433
