Supreme Court of Appeal rejects arbitrary detention of foreigners
Lawyers for Human Rights welcomes the judgment of the Supreme Court of Appeal (SCA) in Ulde v Minister of Home Affairs which was delivered today, 31 March 2009.
The SCA unanimously upheld the appeal against the decision of the Johannesburg High Court to dismiss an application by a Pakistani immigrant to declare his detention unlawful.
Lawyers for Human Rights, acting as amicus curiae in this matter, made two
important submissions to the court:
- firstly, that the decision of the Department of Home Affairs to detain the appellant on the factual assumption that he was an illegal foreigner, before he was actually confirmed in law to be an illegal foreigner, was unlawful; and
- secondly, the discretion of immigration officers to detain a person for the purposes of investigation and possible deportation must be exercised only in cases where it is necessary to limit a person's right to liberty.
The majority judgment by Cachalia JA, to which all the presiding judges concurred, confirmed the constitutional right of any person, including 'illegal foreigners', not to be detained arbitrarily.
The court further confirmed that section 34 of the Immigration Act requires from immigration officers to exercise their discretion when deciding whether or not to detain an illegal foreigner. In this regard the court found that any blanket policy of the government to detain all illegal foreigners would be unlawful.
LHR calls on the Department of Home Affairs to implement policy regarding the use of detention when enforcing the Immigration Act, including methods of investigation, appropriate criteria for detention and alternatives to detention. So far this year, LHR has brought eight cases before the High Court where we have challenged the Department of Home Affair's detention of foreign nationals as unlawful and in each case; the court has granted an order for release. It is clear that there is a need for such a policy and that immigration officers are properly informed of and trained in the use of that policy to prevent further unlawful detentions.
For further information, please contact:
Jacob van Garderen
National Director
Lawyers for Human Rights
357 Visagie Street, Pretoria