Lawyers in bid to challenge law on arrests of foreigners

Lawyers for Human Rights (LHR) is challenging the constitutionality of sections of the Immigration Act which do not make provision for detainees to be brought before court in person to challenge the lawfulness of their detention.

LHR’s head of detention monitoring, Lesirela Letsebe, said in an affidavit before the High Court in Pretoria that hundreds of foreigners were unlawfully held at the Lindela repatriation facility and at other facilities including police stations.

These people usually do not know their rights, nor do immigration officers inform them.

As a result many often unlawfully stay at Lindela and other places for months on end before they are released or deported.

As the law stands, an illegal foreigner can be arrested and detained for the purpose of deportation on the strength of a warrant by an immigration officer. If a detainee wished to challenge the detention, he or she may request that the officer produce a warrant obtained from court.

If the officer fails to produce this within 48 hours, the detainee is entitled to immediate release.

David Cote, a lawyer at LHR, said the warrant was obtained in chambers and the detainee, who would not be present, was deprived of the right to make submissions of why he or she should not be detained.

If the detention lasts for more than 30 days, the officer must obtain a warrant from a magistrate and give notice to the detainee of this intention. The detainee is then invited to make written submissions which are attached to the application for a warrant.

This warrant is against issued in chambers.

Cote said detainees were not given the opportunity to make representation and did not appear in person before the magistrate to challenge their detention.

The Constitution, however, gives the right to any arrested and detained person to, in person, contest the lawfulness of their detention. “Our application will ensure that immigration detainees are also covered by these provisions. We have evidence in a series of applications showing widespread non-compliance with the protections under the Immigration Act for these detainees. Many are detained for more than 120 days, which is not permitted by the Act,” Cote said.

LHR is asking the court to order that sections of the Immigration Act be amended so that immigration official cannot approach a magistrate alone to obtain permission to detain foreigners for longer than the prescribed 30 days.

Although detainees can make written submission or instruct their lawyers, this is usually impossible, as most do not have money or are unable to speak English.

Facilities are Lindela are dire and it is difficult for lawyers to access their clients.

Letsebe said if detainees were required by law to appear before a magistrate during warrant proceedings, they would be able to challenge their detention in person.

LHR said according to its experience, most of those arrested were detained in the overcrowded Lindela without knowing why, for how long or what they could do about their situation.

The application was yesterday postponed indefinitely. Home Affairs noted its intention to oppose the application but had to date not filed any papers in this regard.