LHR Submission to the Special Rapporteur on the Human Rights of Migrants

 

 

 

 

Submission to the Special Rapporteur on the

Human Rights of Migrants

 

Special Rapporteur, Office of the High Commissioner for Human Rights Ms. Katarina Månsson and Ms. Federica Donati:

TO:      kmansson [at] ohchr [dot] org">kmansson [at] ohchr [dot] org, fdonati [at] ohchr [dot] org (fdonati [at] ohchr [dot] org)
CC:       migrant [at] ohchr [dot] org">migrant [at] ohchr [dot] org

 

 

Submitted by:                   

LAWYERS FOR HUMAN RIGHTS, SOUTH AFRICA (LHR)

30 January 2012

LHR Contact persons:  Nicola Whittaker: Nicola [at] LHR [dot] org [dot] za or

Kaajal Ramjathan-Keogh: Kaajal [at] LHR [dot] org [dot] za

 

 

 

I           OVERVIEW OF IMMIGRATION DETENTION IN SOUTH AFRICA

The detention and deportation of foreign nationals in South Africa is governed by section 34 of the Immigration Act 13 of 2002 (the Immigration Act). The Immigration Act sets out the procedures for detaining and deporting ‘illegal foreigners’.

South African law does not provide for the mandatory detention of asylum seekers and refugees. Rather, asylum seekers and refugees are entitled to sojourn in South Africa outside of detention[1] in accordance with the Refugees Act 130 of 1998 (the Refugees Act).

Despite the legal protections afforded to asylum seekers, refugees and other migrants in South Africa, the detention and deportation of foreign nationals is often carried out in an unlawful manner.

II          BACKGROUND TO LHR’S WORK IN IMMIGRATION DETENTION

Lawyers for Human Rights (LHR) is a national non-profit organisation with its Head Office in Pretoria, South Africa. LHR’s principle aims and objectives are to promote, uphold, foster, strengthen and enforce all human rights in South Africa.

In furtherance of its aims and objectives, LHR houses a number of human rights programmes, including the Refugee and Migrants Rights Programme which operates out of Johannesburg, Pretoria, Musina and Durban. The Refugee and Migrants Rights Programme includes the Detention Monitoring Unit which has been in operation since 2000. This unit monitors detention facilities and consults with clients purportedly detained in terms of the Immigration Act and/or the Refugees Act.

LHR assists asylum seekers, refugee and other migrants to realise their rights by consulting with and assisting as many detained individuals as its resources and capacity allow. LHR supports and engages in litigation on matters affecting human rights and litigates on behalf of asylum seekers, refugees and other migrants.

LHR’s contact with migrants in detention lends it insight into the legal and other issues that detainees face, along with immigration trends and shifts in the state’s immigration policy.  As a non-governmental organisation with regular consistent contact with large numbers of detainees, LHR is in the unique position to obtain first-hand information and assess the situation of detainees and receive information from detainees on the conditions of detention. LHR makes this submission to the Special Rapporteur in consideration of this special expertise on immigration detention in South Africa.

III         DETENTION CONCERNS

Conditions in detention

Most detainees that LHR consults with at South Africa’s designated detention and deportation centre, Lindela Repatriation Centre (Lindela) complain about the conditions in detention.

The most common complaint is that the medical care is inadequate. The medical care provided at Lindela appears to be a ‘band aid’ approach where detainees are given medication but nothing is done to address the overall conditions of detention that lead to illness spreading from one detainee to the next.

A 2010 report by the African Centre for Migration and Society found that 54% of the detainees at Lindela who sought medical care did not feel that their condition had been treated adequately.[2]

Detainees also complain of dirty bedding; lice; insufficient blankets to keep warm at night and inadequate meals being provided. These conditions appear to result in detainees suffering from a variety of illnesses. Detainees also report being physically injured by the security guards and immigration officials at the detention centre. LHR receives many reports that detainees are beaten in order to sign documents consenting to being deported.

A further complaint that LHR receives from detainees is that access to basic items in detention, especially toiletries, clean clothes and towels is limited. We have also observed that the clinic at the Lindela Facility is inadequately stocked and is able to deal only with very basic health issues.

Mental health issues

According to detainees, their psychological well-being is neglected in detention. There are no counsellors, psychologists or psychiatrists available for detainees on site. Only in very severe cases are detainees transferred to a local hospital for in -patient treatment. This does not appear to be a long term solution and fails to address a number of more common illnesses which are common in detention, such as depression, anxiety and stress.

Women and children

Lindela is not an appropriate facility to accommodate children. This has been confirmed by our courts[3]. Thus, women with children are detained at shelters while they await deportation.

We receive many complaints about shelters that detain women and children. The primary complaint is that detainees are often forgotten at shelters and remain detained at shelters beyond the statutory limit on detentions for the purpose of deportation. In addition, security at shelters is not sufficient. LHR has had reports of physical abuse at shelters as well as reports of neglect of unaccompanied children.

Most unaccompanied undocumented children however are not taken to shelters prior to deportation. LHR has documented accounts of cases of unaccompanied children who have been rounded up by police, detained in police stations, sometimes together with adults, and deported, mostly to Zimbabwe. This is done without any safeguards being in place to ensure that the detention and deportations are carried out according to law; and in a child-friendly manner. LHR has received reports[4] that between the period October to December 2011, 86 children between the ages of 2 years and 17 years were deported to Zimbabwe, mostly from Limpopo Province.

Unaccompanied minors should be placed in temporary places of safety as is defined in the Children’s Act. Section 138 of the Children’s Act prohibits the unlawful detention of children as well as their removal without a court order. The Children’s Act is applicable to all children living within South African borders. It does not exclude children who have entered the country through irregular channels.

Families

The Department of Home Affairs (DHA) is obliged to assess asylum claims of a family as a whole so as to avoid the situation where families are being torn apart by detention and deportation of one spouse. However, LHR has encountered a number of migrants in detention who have been separated from their spouses because of the separate determination of immigration claims.

Limited independent oversight of immigration detention facilities

The South African Human Rights Commission is the only body that has the mandate to oversee and conduct external monitoring of immigration detention facilities. However, such monitoring has been haphazard and infrequent.  Detainees embarked on a hunger strike in January 2012 in protest of the prolonged periods of detention. Detainees advised LHR that they had been in detention for periods of 5 - 9 months and that they wanted to be deported yet Lindela could not advise them when these deportations would take place. This strike is not an isolated incident; strikes in protest of unduly long stays are commonplace at Lindela.

South Africa is not a party to the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). The purpose of OPCAT is to establish a system of regular independent visits to places of detention, in order to prevent torture and other cruel, inhuman or degrading treatment.

If South Africa were a party to OPCAT, this would allow for independent monitoring of immigration detention centres. Without external monitoring, it is difficult to assess the conditions in detention and systematically monitor the lawfulness of detention and deportation procedures.

IV         GOOD PRACTICES

No mandatory detention of asylum seekers and refugees according to law

South Africa employs an urban refugee policy and asylum seekers should not be detained, unless their permits have been withdrawn in accordance with the Refugees Act and regulations[5]. There is a threat however with South Africa’s new policy shift that new asylum seekers may be routinely detained. South Africa has in 2011 decided to close down metropolitan refugee reception centres and to move asylum processing to the border areas. Mandatory detention may become a routine practise if this move goes ahead.

Time limit for detention for the purposes of deportation according to statute set at 120 days

Section 34 of the Immigration Act stipulates that detention for the purposes of deportation many not exceed 120 days. In practise however, detentions regularly exceed the 120 day period. The Department of Home Affairs is not held to account for its non-compliance with this minimum requirement.

Strong legislative framework

South Africa has a strong legal framework regarding refugees and other migrants. The South African Constitution contains a Bill of Rights which enshrines the rights of all people in South Africa. It obliges the state to protect, promote and fulfil the rights contained in the Bill of Rights. The right to administrative justice is also firmly entrenched in South African law in Section 33 of the Constitution, as well as in the Promotion of Administrative Justice Act 3 of 2000.

There is a duty imposed on the state to act lawfully, reasonably and to follow fair procedures when making decisions that affect individuals or organisations.

The other important pieces of legislation in South Africa are the Immigration Act 13 of 2002 and its regulations and the Refugees Act 130 of 1998 and its regulations.  South Africa is also a signatory to the 1951 UN Refugee Convention and the 1967 Protocol as well as the 1969 African Union Refugee Convention.

Importantly, the South African Immigration Act makes the power to detain someone a discretionary one. The Supreme Court of Appeal[6] has confirmed and upheld that the Immigration Act does not oblige immigration officials to detain illegal or foreigners; rather, immigration officials must exercise their discretion when deciding whether or not to detain and this discretion must be exercised in favour of liberty, due to the far-reaching consequences of detention.

Gap between law and implementation:

Despite this solid legal framework in South Africa, there still appears to be a gap between the law and implementation. This results in many migrants not being protected. Migrants thus continue to find themselves in immigration detention, without being notified if and when they will be deported.

Some migrants are also charged with offences under the Immigration act – which is permissible under the Immigration Act, but the difficulty comes in when migrants find themselves caught between the criminal justice system and the immigration system.[7] There appear to be no uniform procedures regarding the interplay between these two systems and the transfer of foreigners from police stations to immigration detention and back into police custody hampers the detainees’ access to information about his or her case. It also results in migrants being held together with convicted persons and awaiting trial prisoners.

The use of ‘Notices to appear before the Director-General of Home Affairs’ instead of detention

This is a document issued to the migrant who is released from detention. It requires the migrant to report to immigration officials at regular intervals, while such migrant is being investigated by the Department of Home Affairs.

The use of ‘Notices allowing Illegal foreigners to remain in the Republic’ instead of detention

This is a document that is issued to a migrant who is waiting for a decision on an application to remain in South Africa – such as a temporary residence application.

Recommendations

1. We would recommend that the  Special Rapporteur to make a request for South Africa to ratify OPCAT; and
2. We would request that  the Special Rapporteur make a request for South Africa to comply  with laws and minimum standards for  immigration detention; and
3. We would also request for the Special Rapporteur to request an official state invitation to visit and investigate the situation of immigration detention In Southern Africa.

V          Conclusion

This submission provides an overview of immigration detention concerns; as well as good practices regarding alternatives to detention in South Africa.

For a more detailed account of the work of LHR’s detention monitoring unit, please see LHR’s comprehensive detention monitoring report on our website at. This report also contains a summary of the cases which have challenged unlawful detentions for the period 2009 to 2010:

http://www.lhr.org.za/publications/immigration-detention-report.