Deprivation of liberty of an individual is inherently urgent- declares court in releasing asylum seeker
The South Gauteng High Court ruled on Monday that the Department of Home Affairs acted unlawfully in detaining a Burundian national for more than six months at the Lindela Repatriation Centre. Noting that the matter was “inherently urgent” because it involved individual liberty, the Court demanded the applicant’s immediate release. The judge declared that “a detained person has an absolute right not to be deprived of his freedom for one second longer than necessary by an official who cannot justify his detention.”
Although the applicant stated that his asylum permit expired while he was staying at the Acasia refugee camp following the xenophobic attacks, DHA could not verify his status as an asylum seeker. Nonetheless, the judge ruled that the Immigration Act allows for a maximum period of detention of 120 days and rejected the excuses put forth by DHA to justify the excessive detention.
“Although our law does not provide for the mandatory detention of asylum seekers, they are often detained indefinitely because DHA is unable or unwilling to verify their status, which indicates that proper screening procedures are not taking place at Lindela,” said Gina Snyman, with the Refugee and Migrant Rights Programme at Lawyers for Human Rights (LHR). “This ruling clearly establishes that indefinite detention is not authorized under the law and conflicts with the human rights values that are incorporated into the Immigration Act.”
The ruling also emphasized the administrative guarantees found in the Immigration Act, including the right of a detained foreigner to request that his or her detention be confirmed by a Magistrate’s Court and to be released if the requested confirmation is not received within 48 hours. The judge rejected a contrary interpretation of the Immigration Act that suggested that the 120 day detention period could be extended.
According to Snyman, “Many of those held at Lindela have been denied the rights guaranteed them by law. This ruling makes it clear that Home Affairs cannot continue to detain people without adhering to the administrative procedures found in the law, and cannot continue to disregard the right to administrative justice that the Constitution guarantees to all.”
Contact Gina Snyman
Tel 011 339 1960