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The immigration bill from a human rights perspective

5. Application of the Bill of Rights to non-citizens

In its submission to the Portfolio Committee the SAHRC called for migration policy to affirm that all of the rights contained in the Bill of Rights, with the exception of political rights, the right relating to freedom of trade, occupation and profession, apply to all persons who are affected by government action, including non-citizens. The reasons for this call by the SAHRC are clear: any immigration policy should be informed by a basic respect for human rights and the state should be compelled to guarantee the human rights of all those within its territorial domain. Unfortunately, the drafters of the Bill have not expressly followed this recommendation. In the Chapter dealing with the Department of Home Affairs, the following is listed as one of the objectives of the Department of Home Affairs:

“29(1) In the administration of the Act, the Department of Home Affairs shall pursue the following objectives: ‘promote a human-rights based culture in both government and civil society in respect of migration control’. Later on in the same section, the Department of Home Affairs is given the function of educating communities and organs of civil society on the rights of foreigners, illegal foreigners and refugees and conduct other activities to prevent xenophobia (Section 29(2)(d)).
Whilst the affirmations are welcomed it is regrettable that they were relegated to the Chapter dealing with the Immigration Services (“IS”) and that they were not afforded the weight due to them by inclusion of an opening “objectives” section of the Bill. In so doing, the drafters would have gone a long way towards addressing the perception that the Bill is in the first place an “anti-migrants” statute.

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