LAWYERS FOR HUMAN RIGHTS

REFUGEE AND MIGRANT RIGHTS PROJECT

Arrest and Detention in SA Migration Law

Bail for Foreign Nationals

17 June 2009

Werkmans Attorneys

Sandton

What we’ll be coveringThe Basics: Provisions of the Immigration Act

and Refugees ActRole of Law EnforcementThe Basics of Bail as they apply to Foreign

Nationals

The Basics: Applicable LawImmigration Act (Act no 13 of 2002, as

amended)Section 41: identification

Police or immigration may ask you to ID yourself Must ID as a citizen, permanent resident or a

foreigner

Regulation 32: steps to follow Allow access to documents Allow contact to others Accessing governmental records

The Basics: The Law cont’dSection 34: detention and deportation of

“illegal foreigners” 34(1): detention for 30 days for the purposes of

deportation 34(2): detention for 48 hours for purposes other than

deportation

Regulation 29 Process to be followed to extend a warrant Must provide notification and opportunity to provide

reasons why he or she should not be detained

Detentions under the Immigration ActSection 34(1) allows an immigration officer to

arrest and illegal foreigner or “cause” him or her to be arrestedMust therefore issue a warrant of arrest /

detention, etc. Illegal immigrants in police stations or prisons

who have been there for more than 48 hours must either have an immigration warrant or have been brought before a magistrate

Section 34 “protections”s. 34(1)(a): must be notified in writing of the

decision to deport and informed of the right to appeal to the MinisterPractical difficulties make this almost impossible

in Lindela (i.e. no paper, no pens, no access to immigration officers)

s. 34(1)(b): the detainee may ask “at any time” to have the detention confirmed by a warrant within 48 hours or he / she must be released“at any time” includes after a warrant has been

issued?

Section 34(1) Cont’ds. 34(1)(c): must be informed upon arrest of

the procedures under 34(1)(a) and (b) and when “possible, practicable and available” in a language that the detainee understandsIt is rarely possible, practicable or available

Detentions exceeding 30 dayss. 34(1)(d): the detainee may not be held longer

than 30 days without a warrant of a magistrate’s court which “on good and reasonable grounds” may extend such detention for an additional 90 days.Regulation 29 gives the steps to be taken including:

Informing on day 20 of the intention to extend Allowing the detainee to make representations as to why

he / she should be released Transferring the file to the court registrar Confirmation by warrant by day 30

The detainee will never appear personally before a court

Section 35(2) of the Bill of Rights should apply, but doesn’t… yet.

The Act is silent on detentions beyond 120 days

Minimum Standards of Detentions. 34(1)(e): the detainee must be detained

under minimum standards of detention “protecting his or her dignity and relevant human rights”Annexure 2 to the Immigration Regulations,

2005 Very vague standards

Must be held in a place of detention “in a manner and at a place determined by the Director-General”

Costs of deportationSection 34(3): the illegal foreigner may be

required to deposit a sum sufficient “to cover in whole or in part” the expenses related to his or her deportation, detention, etc.Failure to comply is an offence (section 34(4))

Returning after being kicked outSection 34(5): under this section it would

appear that a magistrate can order a deportation if a person has entered after either being removed from the country OR has entered despite being informed that he or she is not admitted at a port of entry…?convoluted wordingwith respect, typical of this poorly drafted act

Deportation after prison sentenceSection 34(6): An illegal foreigner may be

deported prior to the expiration of his or her sentence if he or she was “convicted and sentenced under this Act”Most often used to deport sentenced prisoners

midway through their sentence rather than granting parole

Persons held on shipsSection 34(8): illegal foreigners who arrived

on ships must be detained by the master of that ship

Section 34(9): the master must pay the costs of the detention and deportation

Section 34(11): a person may not be detained on a ship for longer than 30 days without a warrantLHR v. Minister of Home Affairs, 2004 (7)

BCLR 775 (CC)

The Basics: The Law Cont’dPolice officers cannot deport under s. 34

therefore detentions are held for the purposes other than deportation (s. 34 (2))May not be detained for more than 48 hours

The Basics: Applicable LawRefugees Act (Act no 130 of 1998)Provides for detention of asylum seekers who

have breached conditions of permitSection 23: a permit may be removed by the

Minister and the holder caused to be arrestedRegulation 8(2): when the Minister may

remove a permit

The Basics: Refugees ActRemoving an asylum permit does not negate

an asylum claim: Regulation 9 and Section 2Section 29: Detentions under the Refugees

Act must be reviewed by a High Court every 30 days

Refugees in the Criminal Justice SystemRecognized refugees convicted of crimes

should be treated as any other South AfricanA criminal conviction cannot be used as a

reason to withdraw statusIs not included as a reason for cessation under

section 5 of the Refugees Act

Asylum Seekers in the Criminal Justice SystemOne condition of the asylum seeker permit

is to obey the laws of the country.Breaking a condition is grounds for the

Minister to withdraw a permit:Section 22(6)

A permit must be distinguished from status:Section 23

Detention must be reviewed by a High Court every 30 daysSection 29

Section 28, Refugees ActRights of refugees in respect of removal from Republic 28. (1) Subject to section 2, a refugee may be removed from the Republic on grounds

of national security or public order. (2) A removal under subsection (1) may only be ordered by the Minister with due

regard for the rights set out in section 33 of the Constitution and the rights of the refugee

in terms of international law. (3) If an order is made under this section for the removal from the Republic of a

refugee, any dependant of such refugee who has not been granted asylum, may be

included in such an order and removed from the Republic if such dependant has been

afforded a reasonable opportunity to apply for asylum but has failed to do so or if his or

her application for asylum has been rejected. (4) Any refugee ordered to be removed under this section may be detained pending his

or her removal from the Republic. (5) Any order made under this section must afford reasonable time to the refugee

concerned to obtain approval from any country of his or her own choice, for his or her

removal to that country.

“Particularly Serious Crime”Art. 33(2) Ref Conv., 1951: exception to the

“non-refoulement” principle in this articleMust be:

A danger to the security of the country; orAfter a final judgment of a particularly serious

crime

Consequences of refoulementWhen determining whether the crime is of

such a serious nature that it deserves a violation of this principle, regard must be given to the consequences of returning to their country of origin:Dangers of persecutionDanger to the life of the individual

“Having regard to section 2…”South African law does not permit the

removal of a recognized refugee based on a criminal conviction

Section 2 of the Refugees Act is broad: “No person…”

Higher protection than that given by the Refugee Convention, 1951

Arrest and Detention of Asylum Seekers and Refugees

Dysfunctional refugee systemSevere access problems at all refugee

reception officesLarge-scale corruption among officialsLack of knowledge by police and immigration

officersAttitude of preventing “abusive claims” from

entering RSD system

Immigration + Refugees ActsSection 21(4) Refugees Act: an asylum seeker

cannot be prosecuted for illegal entry or remaining illegally in the RepublicMust have made an application for asylum, orMust have been recognized as a refugee

Immigration + Refugees Acts Cont’dIn practice, many asylum seekers are unable

to access the RRO’s and are not able to make asylum applications.

This cannot be used as an excuse to deport asylum seekers without adjudicationSection 2 of the Refugees Act

Offences under the Immigration ActUnfortunately, all too often even asylum seekers

and refugees are charged under the Immigration Act

Section 42: Aiding and Abetting Illegal Foreigners(1) Subject to this Act, and save for necessary

humanitarian assistance, no person shall aid, abet, assist, enable or in any way help (a) an illegal foreigner; or (b) a foreigner doin’ stuff they’re not allowed to do…

Organisations providing “necessary humanitarian assistance” should not be harassed under this provision!

Offences Cont’dSection 49: lists the main offences

Note that “being illegal” under s. 49(1)(a) carries a three month maximum imprisonment

Bail is important if the person wishes to contest the charge because awaiting trial may be far longer than the maximum sentence!

Role of Law Enforcement (Police)Police are authorised to identify under s. 41Must still follow the steps in Regulation 32

Must assist individual with accessing documents and contacting friends / family to verify identity

Role of Law Enforcement(Police)

In practice,Police detain and contact immigration to verify

statusIn Pretoria and Johannesburg, police rarely

contact Refugee AffairsStation Commissioner is responsible to

ensure all detainees are legally detainedWill not release someone without documentsTheoretically, they would be allowing the

continued commission of a crime

Role of Law Enforcement(Immigration Inspectorate)

Immigration inspectors may request any person to identify themselves under section 41Regulation 32

Only an immigration inspector has authority under section 34(1) to arrest and deport. May detain for up to 30 days without a warrantNo requirement to take detainee to a court

Role of Law Enforcement (Immigration Inspectorate)

Role of inspector:Verify documents;Verifying legality in Movement Control System;Issue notification of deportation if that

inspector is satisfied that the individual is an “illegal foreigner” as defined in section 2.

Practical Situations (Call from Police Station)

Steps to take:Get details about status in RepublicContact cells at Police Station and verify that

detainee is being held thereWrite or call station commissioner about

possible release Writing creates a record to of measures taken to

resolve Chance to explain little known area of law

Call from police stationMost likely, the police will not release

without immigrationPerception that this would amount to releasing

someone to possibly continue committing offence (no docs)

Perception that only immigration can properly investigate undocumented people

Some commissioners in Johannesburg know about problems at Refugee Affairs and have given orders not to arrest undoc’d people

Call from police stationGet details of which regional DHA office

sends immigration inspectorContact immigration officer to explain

situation or fax letter to regional office

Call from police stationDepending on the immigration officer, the

detainee may be released depending on circumstances

If they are registered at a RRO, you may be able to contact that office to verify applicationSome refugee affairs officers will be hesitant to

release without a power of attorneyGiving the name of a refugee affairs officer to

the immigration officer may help

Call from police stationConvincing an officer that an undocumented,

yet hopeful asylum seeker should be released is more trickyMay require some knowledge of the country of

originIf a detainee is not released from the police

station, they will most likely be sent to Lindela

Call from LindelaIn some ways, it’s easier to assist a client

who is at LindelaWe can visit them personallyThere is a permanent immigration staff at

Lindela to speak with

Call from LindelaUnaccompanied minors are no longer

allowed at LindelaThey must be placed in a ‘place of safety’

through Social Development. Lindela has a policy of not placing any

children at LindelaThis may lead to expedited deportations of

women with children

Zimbabwean nationals in detention

Zimbabwean nationals are now subject to a moratorium on deportationOnly those released from prisons for

deportation will be removed from the countryIn anticipation of the exemption permits under

section 31(2)(b) of the Immigration ActIf they are not being held “for the purposes of

deportation”, they may not be detained for longer than 48 hours (section 34(2) Imm Act).

Call from LindelaWrite a letter to Lindela regarding the

detainee’s situationImmigration may take a statement from

detainee to determine if they should be released to report to a RRO.

May be given a section 23 permit from Lindela or simply released out the front gates.

Lindela is not (yet) a designated Refugee Reception Office and cannot issue permits

FAX NUMBERSRefugee Affairs: 012-810-8177Deportations: 012-810-8522Legal Services: 012-810-8574Lindela: 011-660-1305 or 011-665-2554Bosasa: 011-660-9097

Case LawCircular 51 Case

DHA issued Circular 51 of 2000 which instructed immigration officers to refuse entry to aspirant asylum seekers who travelled through “safe third countries”

Matter brought to court, but settled. DHA withdrew the circular and issued a new directive regarding the admission of persons entering for the purposes of seeking asylum.

Case LawLawyers for Human Rights v. Minister of Home

Affairs and Others, 2004 (7) BCLR 775 (CC)The second applicant was being detained on a ship

in terms of section 34(8) of the Immigration ActImportant points:

Foreign nationals have access to the protection of SA courts if they are in SA territory (but not yet admitted to the country)

Confirmed that the Bill of Rights applies to foreign nationals, even the “illegal” ones

Locus standi and acting in the public interest under section 38(1)(d) of the Constitution

Case LawCentre for Child Law v. Minister of Home Affairs

and Others, case no 22866/04 (TPD) (unreported)Unaccompanied minors may not be detained in

immigration detention at LindelaThe rights of children in the Bill of Rights applies

equally to foreign childrenThe Child Care Act (and now the Children’s Act)

applies equally to foreign children and therefore a child in need of care must be brought before a Children’s Court and placed in a Place of Safety as any other child.

Case LawUlde v. Minister of Home Affairs and Others,

[2009] ZASCA 34Judgment handed down on 31 March 2009

(fresh off the presses)Ulde was arrested as an illegal foreigner even

after a magistrate had granted bail on the same facts in a criminal setting

Found that section 32(2) Immigration Act which imposes an obligation to deport an illegal foreigner does not entail an obligation to detain.

The Basics on BailProcedure covered under Chapter 9 of the

Criminal Procedures Act (Act no 51 of 1977)Section 60(4): where the interests of justice do

not permit release from detention: (a) likely to endanger public safety (b) will attempt to evade trial (c) intimidating witnesses (d) “undermine or jeopardize” the court’s functions (e) exceptional circumstances where release will

“disturb the public or undermine public peace or security”

Section 60(6) FactorsForeign nationals are often seen as a “flight risk”

under section 60(4)(b)s. 60(6) gives factors to be considered:

(a) Emotional, family, community or occupational ties(b) assets(c) means and travel documents to leave the country(d) ability to afford to forfeit the bail money(e) whether extradition would be an option if he

leaves(f) nature and gravity of the charge(g) strength of the case against him or her

Section 60(6) Factors Cont’d(h) nature and gravity of the punishment(i) binding effect and enforceability of the bail

conditions and the ease with which such conditions may be breached; or

(j) any other factor which in the opinion of the court should be taken into account.

An address will be extremely important for the enforceability of bail conditions!

Mobility of Asylum Seekers and RefugeesRefugees and asylum seekers are a special category

of “foreign national”They do not have ready access to travel documentsRecognised refugees with United Nations Convention

Travel Documents (“refugee passports”) are prohibited from returning to their country of origin and have rigid visa requirements to visit other countries

If an asylum seeker or refugee returns to his / her country of origin, he or she risks losing their status

An asylum seeker may not leave SA without permission from the Minister of Home Affairs (section 22(5) Ref Act

Onus of proofThere is no onus on the accused to prove that

he or she will not be a flight riskBranco 2002 (1) SACR 425 (T)

(as reported in “Criminal Procedure Handbook”, Joubert et al. 8th Edition, Juta & Co., p. 151)

Unlike other jurisdictionsCourt may use its “common sense” in

considering each of the factors

Conditions of BailThe court may grant bail but impose

conditions (s. 60(12)). Besides depositing a sum (s. 60(13)), the

court may impose other conditions “in the interests of justice” (s. 62):(a) regular reporting in person at a specified

place and time to a specified person(b) places where the accused may not go(c) stopping or controlling communication with

any witnesses

Conditions of Bail Cont’d(d) specified place at which documents may be served(e) conditions which “will ensure that the proper

administration of justice is not place in jeopardy…”(f) supervision by probation or corrections officer

Regular reporting at a police station is often effective

Reminding the magistrate that in the case of asylum seekers, they are obliged to report on a regular basis to a refugee reception office