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A Human Rights Perspective of the Immigration Bill
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One of the primary themes of the Immigration Bill is the prevention of illegal migration through the detection, arrest, detention and repatriation of illegal foreigners. Despite the noble objectives to promote a human rights based culture in respect of migration control, the proposed enforcement mechanism does not substantially differ from the existing Aliens Control Act of the apartheid era. In the new South Africa, migration is still guided by a call for increased migration control to keep unwanted foreigners out9.
A disturbing addition to the Bill is the involvement of the South African public to control unlawful migration by detecting and reporting suspected illegal foreigners and the outlawing of any assistance given to illegal immigrants. These two provisions create fertile ground for xenophobic backlash as recently witnessed in Zanspruit outside Johannesburg where Zimbabwean squatters were driven out of their homes and in Port Elizabeth where the businesses of Somali refugees were destroyed.
In order to explore the issue, the following sections will briefly assess the identification, arrest, detention and deportation of illegal immigrants as currently implemented in South Africa.
3.1 Identification and arrest
For foreigners living in South Africa, life continues to be fraught with difficulties disturbingly similar to those faced by black South Africans under the influx control system of the apartheid era. Foreign nationals are continuously harassed by the police and often unlawfully arrested on suspicion of being illegal in the country.
Insufficient identification systems have led to the arrest including detention and deportation of persons with the right to be in the country, people with valid documents and even South African citizens. The South African Human Rights Commission reported in December 200010 that numbers of arrested persons were deliberately prevented from providing documents and valid identity documents were destroyed resulting in detention and deportation.
The failure to provide legislative criteria for the arrest of illegal foreigners has resulted in discriminatory patterns of the arrest and deportation of illegal migrants. Currently persons are being arrested for their particular physical appearance and for not speaking any of the main national languages. Analysis of deportation statistics has indicated that an African migrant is much more likely to be arrested than a white person11.
During the latest “operation crackdown” in Hillbrow and Yeoville, two Johannesburg suburbs known for high proportion of immigrants, the police arrested a large number of suspected illegal immigrants. During these raids the police made no effort in trying to identify or separate foreigners with or without the legal right to reside in South Africa. In the beginning of this month, a Burundian refugee was arrested by the police in Hillbrow during one of these operations. Despite showing the police his refugee permit, he was arrested and put in detention.
It is not only foreigners who are affected by this arbitrary approach. Last year a South African schoolteacher was arrested on her way to work. The police refused to consider her explanation as to why she did not carry an identity document and to listen to her pupils who tried to convince the police that their teacher was in fact South African. The woman was assaulted by the police and ended up in hospital.
With these issues in mind, an essential addition to the proposed legislation would be to compel arresting officers to demonstrate reasonable grounds for the arrest of a person and an indication that they have given the arrested person the opportunity to prove his or her legal status in the country.
3.2 Detention
A person arrested for being a suspected illegal foreigner in South Africa may be detained without a warrant for 30 days. The legislation is unspecific in its description of holding facilities and does not set out the standards for detention
A Human Rights Commission report has highlighted the poor conditions of detention at Lindela repatriation centre, the principal detention facility for people awaiting deportation. The findings confirmed evidence of inhumane treatment and indignity of persons held at the facility in terms of constitutional and international standards of detention. The majority of complaints of inmates centred around a lack of adequate nutrition, irregular or inadequate medial care and systematic forced interruption of sleep, general poor living conditions, limited access to information, assault and the mistreatment of minors. The Human Rights Commission also launched a legal challenge against the Department of Home Affairs and the private company managing the facility for detaining persons for extensive periods without any attempt to approach the High Court for a legal extension12.
With these violations in mind, Lawyers for Human Rights proposes the development of minimum standards of detention. Such standards should include provisions for conditions of detention such as size and conditions of cells, adequate diet, exercise, health, and the separation of administrative detainees from criminal detainees, women from men and children from adults.
Proper enforcement of the recommended minimum standards requires an independent body with clearly defined powers and duties to enquire into specific incidents as well as monitoring the general conditions of detention. The Immigration Bill provides no statutory limitations or immediate oversight of immigration detention facilities. This problem becomes even more acute since the Department has decided to continue contracting out its functions to detain and escort illegal immigrants to private persons. The problem has two aspects. Firstly, the Department of Home Affairs has no apparent statutory obligation to review, monitor or report on activities at the facilities. Secondly, and equally important, public confidence in the concept of a privately operated detention centre for illegal foreigners relies on a mechanism of external control of the facility.
Although the establishment of an independent monitoring system to safeguard the rights of detained migrants is crucial, it is often difficult to make it work in practice. A model currently under discussion is to broaden the Judge Inspector for Prison’s mandate to include the monitoring of immigration detention facilities. The benefit of this model is that is integrates a new watchdog aspect into an established and independent structure.
The outsourcing of detention to a private company is a sensitive issue and raises questions of accountability and legal responsibility. The problem was brought acutely into focus a few weeks ago when security guards employed by the private contractor at Lindela allegedly murdered a Malawian detainee. When investigating the matter, the South African Human Rights Commission found that there was no clear division of responsibility between the Department of Home Affairs and the private contractor, which resulted in the event being insufficiently investigated and reported. Media reports also indicated that the Department of Home Affairs disclaimed accountability of the facility and in doing so also its responsibility for the event.
The failure to prescribe clear conditions for the detention of illegal immigrants and the involvement of private contractors in the process have also resulted in a number cases where persons have been detained at Johannesburg International Airport by private security and airline companies. Persons who arrive to South Africa without proper documentation or who are in transit during deportation are held in detention in the transit area. It is unclear under what authority persons are detained at the airport, as the Department of Home Affairs is often not informed about the detention. In some cases, Lawyers for Human Rights has discovered that detainees at the airport are not given access to just administrative procedures.
3.3 Deportation
As a result of South Africa’s restrictive and exclusionist immigration policies and the concomitant enforcement system, the State deports on average of 350 person per week, mostly to neighbouring countries such as Mozambique, Zimbabwe, Swaziland and Lesotho. Weekly trains and trucks leave Lindela repatriation centre heading for the border posts of Komatipoort, Beitbridge, Oshoek and Maseru Bridge.
Needless to say, the repatriation programme costs the country a great deal of taxpayers money to maintain. The efficiency of the programme has also been put in doubt by both the authorities and civil society. Although no accurate estimates are available, observers, including the Department of Home Affairs itself, have confirmed that a significant number of deportees are back in South Africa before the trains have returned to Johannesburg13. The efficiency of the system is undermined by the “revolving door” phenomenon where illegal migrants experience multiple deportationss14.
The current deportation programme rides roughshod over the fundamental rights of people believed to be illegal in the country and has been criticised by many for the following reasons:
- The mode of transport and the conditions of deportation lack safety features. People are transported for long distances in closed trucks with inadequate ventilation and very little space;
- No special provision is made for the repatriation of children, in particular unaccompanied children. Consideration should be given to the necessary legislative amendments which would require the Children’s Court to confirm any decision to remove, return or deport a separated or unaccompanied child;
- Deportation often results in the separation of families; and
- A common complain by deportees is that they are not given the opportunity to retrieve their belongings before being deported, often forcing them to return to South Africa to collect their property.
Lawyers for Human Rights has on numerous occasions found bona fide refugees and asylum seekers in the deportation process, in particular at the Johannesburg International Airport. Current policies prevent deportees from applying for asylum in the transit area, and as a result are at danger of being refolded.
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- BL Masetlha, Presentation of the Department of Home Affairs on the Migration System in South Africa, Portfolio Committee for the Department of Home Affairs, 15 April, 2002.
- Emma Algotsson, SAHRC, Getting to the Crossroads of Detention and Repatriation, December 2000, www.sahrc.organisation.za
- Jonathan Klaaren, Immigration and the South African Constitution, in Jonathan Crush, Beyond Control: Immigration and Human Rights in a Democratic South Africa, SAMP, 1998, page 65.
- Emma Algotsson, Towards a Responsible Detention Framework, Botshabelo Sanctuary, Vol 4(2) 2001, page 8.
- Masetla BL, Director General Department of Home Affairs, Presentation to the Parliamentary Portfolio Committee of Home Affairs, 7 March, 2000. Human Rights Watch, Prohibited Persons: Abuse on Undocumented Migrants, Asylum Seekers and Refugees in South Africa, 1998, page 106.
- David A Mc Donald et al, The Lives and Times of African Migrants and Immigrants in Post-Apartheid South Africa, SAMP Migration Policy Series No 3, page 13.
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