Challenge to Immigration Act

The high court in Pretoria reserved judgment in a legal challenge in which Lawyers for Human Rights (LHR) is questioning 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.

The Immigration Act allows Home Affairs to arrest and detain a person it deems to be an illegal foreigner. The department has 48 hours in which to determine whether the person is illegally in the country or not.

The act permits the department to detain a person for up to 120 days. Detainees can request that they be brought before court within 48 hours to have the lawfulness of their detention confirmed by the court, but this seldom happened as very few illegal foreigners knew their rights in this regard.

LHR advocate Steven Budlender yesterday argued that this is unlike the situation that applied to all other arrested persons, who are automatically brought before a court within 48 hours of their arrest.

He said the act was unconstitutional in this regard as it should require all suspected illegal foreigners who are detained to be automatically brought before court to confirm whether they were lawfully in custody or not.

LHR lawyer David Cote said the point of this case was not to do away with immigration detention.

“It is simply to ensure it is lawful and there is sufficient oversight by the courts. Unfortunately there are many unlawful detentions leading to deportation. It is important to ensure all detainees, whether in criminal or administrative detention, have access to courts.”

The LHR is also not contesting the 48-hour detention period during which an immigration officer has to verify the arrested person’s legal status. In terms of the law, a person detained for longer than 48 hours without a warrant must be released immediately. But this seldom happened, Cote said, as the detainees did not know their rights. It often happened that they were detained for up to 30 days before anyone verified whether they were illegally in the country.

Cote said that without judicial oversight, there was no way to ascertain whether they were illegally incarcerated or not.

A survey done by the University of the Witwatersrand showed 75 percent of detainees interviewed at the Lindela Detention Centre were not aware that they could ask a court to review their detention. More than a quarter could not speak English.