SA Migration International

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LHR to Challenge Constitutionality of Immigration Detention laws

Source: Media alert, 07/11/2016

Lawyers for Human Rights (LHR) will appear in the Constitutional Court
tomorrow (Tuesday 8 November 2016) to challenge the constitutionality
of the provisions of the Immigration Act relating to detention.

Currently, the Immigration Act provides that someone found to be an
"illegal foreigner" without documentation to remain in South Africa
may be detained for 30 days by an immigration officer without a
warrant plus a further 90 days with a warrant issued in chambers by a
magistrate. At no point is a detainee brought in person before a
court to explain why he or she should not be detained.

In February 2016, the Provincial Division of the Gauteng High Court
(Pretoria) found that section 34(1) of the Immigration Act was
unconstitutional as it did not provide for court oversight of
detention as required by section 12(1) of the Constitution of the
Republic of South Africa, 1996. This finding was subject to
confirmation by the Constitutional Court.

LHR has presented evidence collected over its 10 years of monitoring
immigration detention at police stations, prisons, international
airports and the Lindela Holding Facility regarding long-term
detentions, asylum seekers and refugees caught up in deportation
proceedings and the failure of the Department of Home Affairs to
inform detainees of their rights.

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