Steps home affairs must take before deporting illegal foreigners

Only an immigration officer may arrest a person deemed an ‘illegal foreigner’

The process of deporting “illegal foreigners” in South Africa is governed by the Immigration Act which empowers the home affairs department to arrest, detain and deport people who are not entitled to stay in the country.

Home affairs minister Leon Schreiber, in a reply to a parliamentary question, said the department spent close to R53m between April and August to deport 19,750 illegal foreigners.

The Scalabrini Centre of Cape Town, a nonprofit organisation which helps migrant communities and displaced people, details the process which must take place after someone has been found to be illegally in the country. 

The centre says there are certain groups of people who may not be detained for the purposes of deportation. These include asylum seekers and refugees, who are protected against deportation as this might lead to them being persecuted back home.

The Immigration Act defines an “illegal foreigner” as a foreigner who is in the republic in contravention of the Immigration Act, or someone who does not have an asylum-seeker permit, formal recognition of refugee status or a refugee ID, or a valid permit or visa in their passport. 

The centre said to facilitate deportation, the department works with authorities of the foreign national’s country of origin to ensure they will be received upon return. 

The law is clear: only a police officer or an immigration officer may take a person suspected of being an illegal foreigner into custody.

“Only an immigration officer may arrest a person who is determined to be an ‘illegal foreigner’, or cause them to be arrested by a police officer. Only an immigration officer is able to determine that a person is an ‘illegal foreigner’ in terms of the Immigration Act,” the centre said.

Detained people will usually be held at some police stations, prisons, detention facilities and offices under the management of the department. Those detained for deportation may be transferred to the Lindela Repatriation Centre in Krugersdorp, the country’s only immigration detention facility. Lindela is managed by facilities management company EnvironMongz, which also provides security services on behalf of the department.

Scalabrini alleged many people detained at Lindela were not able to access the rights entitled to them.

“Detainees are frequently subjected to unlawful detention periods (including over 120 days), illegal sentencing, restricted access to legal representation, a lack of availability of interpreters, corruption and bribery, and the use of force.” 

One of the latest issues that brought a legal challenge from Scalabrini this year was the alleged detention and deportation of asylum seekers before they could make an application for asylum. 

Scalabrini said this disturbing new practice of unlawfully arresting asylum seekers at refugee reception offices across South Africa began nationwide in November last year. 

In September this year, the Western Cape High Court granted an interim order interdicting the department from initiating any process to deport any foreign national present in South Africa, if that person has indicated their intention of applying for asylum, until their asylum application is determined on the merits.   

Part B of the case, which will be heard at a later date, will address the constitutionality of the contested provisions.

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