Press release: LHR challenges constitutionality of detention procedures at Lindela Repatriation Centre

Lawyers for Human Rights is challenging the constitutionality of the procedures and safeguards governing the detention of people suspected of being illegal foreigners under the Immigration Act and the new Immigration Regulations at the Lindela Repatriation Centre near Krugersdorp.

LHR has grown increasingly alarmed at serious constitutional difficulties with both the legislation concerned and the manner in which it is implemented. LHR has been monitoring immigration detention with the aim of providing assistance to unlawfully detained persons for more than 15 years. We are intricately aware of the challenges faced by these individuals in enforcing their rights and intend by this action to give voice to those difficulties.

The Immigration Act allows for the detention pending deportation of an illegal foreigner for a maximum of 120 days. A provision of the Act entitles the Home Affairs Department to detain a person for up to 30 days without a warrant. If they intend to  extend the detention, they need to apply in advance for an extension of the warrant  from the magistrate’s court. Unfortunately, the Act does not require that detainees have the lawfulness of their detention automatically confirmed by a court at the beginning of their detention. Instead, detainees need to request that their matter be brought before a magistrate and this process is rarely followed in practice.

LHR contends that this practice is unconstitutional as each detainee should automatically have the lawfulness of his or her detention confirmed by a court and in person as with any other detainee.

At present, immigration detentions are extended  without the detainee appearing before the magistrate in person. Without the chance to challenge their detention, there is a real likelihood that they will continue to be unlawfully detained. LHR contends that this should not be allowed, as it is only through physical presence that a magistrate can make an accurate and just finding. By appearing in person during warrant proceedings, the magistrate is able to explain the process and inform the detainee of their rights, detainees are able to seek legal representation, the magistrate is able to get a more detailed account of the person’s circumstances, the magistrate is able to detect and correct obvious oversights including unaccompanied children that have been recorded as adults but are clearly younger than 18-years-old; and observe the physical well-being of the detainee and the need for medical attention. Relying on immigration officers to perform these functions has proven to be an inadequate protection against unlawful detention. 

Very few detainees are aware of their rights while in detention.

According to the report “Lost in the Vortex”, only 53% of respondents were told that they were being detained as an illegal foreigner before being sent to Lindela. Of those, 90% received no written notification of their legal status on their application for a permit and 84% said they did not receive information regarding their right to appeal the decision declaring them an illegal foreigner. 94% were not told anything about their rights regarding the deportation process. Detainees lack access to trained immigration officials who would be able to provide correct information.

It is also a requirement that a detainee’s rights be communicated in a language that they understand but this service is not provided at Lindela. Even if a detainee secures legal representation, they are severely hampered from communicating with them.

Failing to follow correct procedures is a costly error. According to Dr Roni Amit of the African Centre for Migration and Society’s report “Breaking the Bank”, Home Affairs spent approximately R4.7-million between 2009 and 2010 on 90 of LHR’s cases alone. These cases dealt with unlawful detentions.

LHR sought to remedy the situation through its submissions to the new immigration regulations, but the regulations pertaining to detention remained largely unchanged.  LHR is challenging existing legislation to ensure that detainees automatically have the lawfulness of their detention confirmed by a court and that detainees appear in person during warrant proceedings.