Challenge to migrant detentions

Lawyers for Human Rights (LHR) has applied for sections of the Immigration Act to be declared unconstitutional because they deny immigration detainees the right to be brought before court to challenge the lawfulness of their detention.

Judge Billy Mothle yesterday postponed the application indefinitely in the North Gauteng High Court, allowing the department of home affairs to file opposing papers.

In terms of the Act, a suspected illegal foreigner can be arrested and detained for purposes of deportation on a warrant issued by an immigration officer and may ask the officer to produce a warrant from a magistrate if he wishes to challenge his detention.

Detainees are invited to make written submissions to the magistrate on why they should not be detained, but do not have to appear before the magistrate in person.

LHR wants the court to force Home Affairs to bring immigration detainees before a court in person within 48 hours of their detention to determine if the detention should be confirmed, failing which the detainee must be released.

The head of LHR’s detention monitoring unit, Lesirela Letsebe, said in court papers it was practically near impossible for the vast majority of detainees to exercise their purported right to challenge the lawfulness of their detention.

He said even when the department was required to obtain a warrant to extend a detention beyond 30 days, this by no means ensured compliance with the law, with police and immigration officers openly disregarding the maximum time periods.

Two reports by Dr Roni Amit of Wits University noted a high prevalence of prolonged and indefinite detentions, including some that exceeded the 120-day maximum.