Keep up to date with our Teach-Yourself Series – condensed articles on migration issues in South Africa. Our articles and infographics aim to spread awareness on South Africa’s migration landscape, and our standpoints on the issue. This is a joint initiative between The Scalabrini Centre of Cape Town and Sonke Gender Justice. Other articles in this series includes: the Refugee Amendment Act, the White Paper on International Migration, health care access among others.

Introduction

The Immigration Act regulates how non-South Africans enter into, depart from, and live in South Africa. Anyone who is in violation of the Immigration Act can be arrested, detained and deported. The detention and deportation process is subject to several legal protections that safeguard the constitutional rights of foreign nationals who are in detention or are facing deportation.

There are certain groups of persons who may not be detained for the purposes of deportation. This includes asylum seekers and refugees, who are protected against deportation by a principle known as non-refoulement, which prevents states from returning person where to a country where they may be subjected to persecution or where their life, physical safety, or freedom would be threatened – as set out at section 2 of the Refugees Act (see Question 11 for more information). This also includes children, who may only be detained as a measure of last resort and who are protected by several safeguards in cases of detention (see Question 12 for more information).

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 term ‘illegal foreigner’ is problematic as it carries the connotation that a person is criminal. A person cannot be ‘illegal’ simply because they are not documented in terms of a country’s immigration laws. Where the term ‘illegal foreigner’ is used in this explainer, it is to accurately represent the provision of the Immigration Act, and is not intended to demonstrate approval of use of the term.

1. What is deportation, and when can someone be deported?

In South Africa, deportation is the procedure performed by the Department of Home Affairs causing an ‘illegal foreigner’ to leave the Republic (involuntarily, or under detention) in terms of the Immigration Act. Typically, this person is returned to their country of origin. If a foreign national does not have legal stay in South Africa, they must leave the country. Otherwise, they can be arrested, detained and deported, as set out by sections 32 and 34 of the Immigration Act.

In order to facilitate deportation, the Department of Home Affairs works with authorities of the foreign national’s country of origin to ensure they will be received upon return. Deportation is a legitimate state function, but it must be done in accordance with the law.

A person may voluntarily deport themselves if they satisfy an immigration officer that they will leave South Africa within 14 days (or longer, with good cause). They must also have a valid passport or other travel documentation and the financial means to leave. In this case, the person will be provided with a ‘Form 21’ (which can be found in the Regulations to the Immigration Act), which will require them to report back to the Department of Home Affairs to prove that they are leaving South Africa. This option should be accessible throughout the process of deportation.

Voluntary deportation is preferable to involuntary deportation (see Question 13), and persons who have the financial means, or vulnerable persons should try to arrange for voluntary deportation. These people may wish to seek assistance from a non-profit organisation (see Question 14). If return to a person’s country of origin places them at risk, or if they are an asylum seeker or refugee, they should not pursue voluntary deportation and should seek advice or legal assistance urgently (see Question 14).

The process of detention and deportation may be summarised as follows –

1. A police officer or an immigration officer can ask any person to identify themselves as a citizen, permanent resident, or foreign national (see Question 3). If they have ‘reasonable grounds’ to believe such a person does not have legal stay in South Africa, they may conduct an interview about their identity or status. They should take reasonable steps to assist the person in verifying their status, and they may take that person into custody or detain them (see Question 4).
2. If an immigration officer declares someone to be an ‘illegal foreigner’, they will start the deportation process. They must notify the person in writing (in a language they understand) of the decision to deport them and the reason for the deportation. The person should also be informed of their right to appeal this decision. The immigration officer may, if they believe it to be justified, arrest and detain the person for purposes of deportation. In considering whether detention is justified, the immigration officer should consider a person’s degree of connectedness to the community, including commercial and social ties. Persons who are detained for purposes of deportation can only be held in specified places (see Question 6). A person does not have to be detained if the deportation process has been started.
3. If a person is detained for the purposes of deportation, they must be brought before a court, in person, within 48 hours from the time of arrest or the time at which they were taken into custody. (This may be longer, if the 48 hour period ends on a non-court day including public holidays or weekends.) It is very important to find legal representation or assistance during this period.

The court will determine whether or not to confirm the detention. If the person does not appear before a court within 48 hours, this person must be immediately released (see Question 7). If the court confirms the detention, the person may be held in detention for up to 30 calendar days from the date of arrest or the time they were taken into custody.

1. The immigration officer may apply to the court to extend the period of detention beyond the first 30 calendar days for an additional 30 calendar days. If they intend to do so, they must notify the detained person in advance. The detained person can make written representations to the magistrate of the court. They must appear in person in court. The court can only extend the detention on good and reasonable grounds. After the first 30 calendar days in detention, the court can only extend a person’s detention three times (i.e. another 90 calendar days in total) – with no more than 120 total days of detention allowed (see Questions 8 and 9).
2. At some point during the detention period, the person may be transferred to the Lindela Repatriation Centre in the Gauteng Province (see Question 6), or their deportation may take place directly from the first place of detention.
3. During the detention period, the Department of Home Affairs works with authorities of the foreign national’s country of origin to ensure they will be received upon return. This should not occur in cases involving asylum seekers or refugees.
4. Just before being deported, the person must be informed of the upcoming deportation. The person is then deported to their country of origin by bus, train or plane.
5. Once deported, the person may be banned from returning to South Africa for between a year and five years (see Question 2)

  2. What are the consequences of being deported?

If a person is deported from South Africa, they are likely to be declared an ‘undesirable person’ by the Director-General of the Department of Home Affairs. This means the person would be banned from re-entering South Africa for between twelve months to five years, as set out by section 30 of the Immigration Act.

Such a ban may negatively impact future applications for a permit or visa in terms of the Immigration Act of South Africa.

3. As a foreign national in South Africa, what documents should I carry?

All persons in South Africa must be able to prove their identity with proof of identity on which their name and photograph appear, as set out by section 17 of the Identification Act.  Only a police officer or an immigration officer can ask any person to identify themselves as a citizen, permanent resident or foreign national, as set out by section 41 of the Immigration Act.

Because of this, you must be able to provide any police officer of immigration officer with proof of you legal stay in South Africa –

1. Foreign nationals with a visa or permit in their passport should carry their passport and permit or at least a certified copy (which must have been certified no longer than 3 months ago).
2. Refugees should carry their original refugee status, refugee ID or refugee passport, or at least a certified copy of one of these documents (which must have been certified no longer than 3 months ago).
3. Asylum seekers must carry their original asylum seeker permit at all times, as required by section 7 of the Refugees Act.

4. When can I be taken into custody or arrested for migration-related reasons?

If a police officer or an immigration officer suspects that a person does not have legal stay in South Africa, they may conduct an interview about their identity or status. The official should take ‘reasonable steps’ to assist the person in verifying their status. This includes: accessing relevant documents, contacting relatives or other persons, accessing Departmental records, assisting the person to obtain the relevant documents and having an immigration officer determine the status of the person. (This is provided for at section 41 of the Immigration Act and section 37 of the Regulation to the Immigration Act.)

If a police officer or an immigration officer suspects that a person does not have legal stay in South Africa, the officer may take the person into custody without a warrant. If this happens, the person can be held in custody for an initial period of 48 hours while the determination of their identity or status is ongoing.

During this period of custody, if an immigration officer confirms this person to be an ‘illegal foreigner’, they may then arrest and detain the person without a warrant.

5. Who is authorised to detain or arrest a person suspected of being an ‘illegal foreigner’?

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.

6. Where can a person be detained for the purposes of deportation?

If a person is detained for the purposes of deportation, they can only be held at a place determined by the Director-General of Home Affairs (which is then published in the Government Gazette, as set out by section 34(1) of the Immigration Act).

Detained persons will usually be held at some police stations, prisons, detention facilities and offices under the management or the Department of Home Affairs. Persons are detained here prior to being transferred to Lindela Repatriation Centre in the Gauteng Province. This is South Africa’s only immigration detention centre.

7. What are the rights of a person who has been arrested and detained for the purposes of deportation?

If a person is arrested and detained for the purposes of deportation, they must be notified in writing, in a language they understand, of the decision to deport them. They must also be informed of their right to appeal the decision. The person must be brought in person before a court within 48 hours from the time of the arrest or the time they were taken into custody. The court will determine whether or not to confirm the detention. If the person is not brought before the court within 48 hours, they must be immediately released. These procedures are set out by section 34 of the Immigration Act.

In South Africa, detained persons have certain rights. These are set out in section 34 of the Immigration Act, section 33 of the Regulations to the Immigration Act, section 35 of the Constitution of South Africa, and the Nelson Mandela Rules. Your rights in detention include the right –

1. To be informed of the reasons for your detention and your rights in detention in a language that you can understand;
2. To be detained in conditions that are within minimum standards of dignity and human rights, which includes adequate accommodation, food, reading material and medical treatment;
3. To be able to choose and consult with legal practitioners of your choice;
4. To be visited by your spouse or partner, next of kin, and chosen religious counsellors or medical practitioners; and
5. To be held separately from criminal suspects.

If a detained person or their friends or family believe these rights are not respected, they should seek legal assistance or reach out to a non-profit organisation for advice (see Question 14).

8. How long can a person be detained for the purposes of deportation?

The total period of detention can be up to 120 days from the time a person is arrested or taken into custody.

This is a break-down of the possible periods of detention:

1. Up to 48 hours from initial arrest or time taken into custody

If a person is arrested due to concerns around their documentation, they can be held for 48 hours pending verification of their identity or status

If a person is not brought before a court, in person, within 48 hours, they should be immediately released

This period may be longer if it ends on a non-court day, including holidays and weekends

1. Up to 30 calendar days from initial arrest or time taken into custody – with confirmation from court

If a person is taken to court within 48 hours and the court confirms the detention, the period of detention may be extended for up to 30 calendar days

1. At the end of the first 30 days of detention, up to another 90 days

These 90 days can only be extended 30 days at a time by the court

If an immigration officer intends to apply for extension of the period of detention they must notify the detained person in advance

The detained person is entitled to make written representations to the magistrate of the court, and must appear in person in court

The court can only extend the detention period beyond the first 30 calendar days on good and reasonable grounds.

9. What if I have been in detention for over 120 days?

If a person has been detained for the purposes of deportation for more than 120 days, the detained person must be released. This person, or their families, should seek the assistance of a legal representative to secure their release. They can also reach out to a non-profit organisation for advice or other assistance (see Question 14).

10. How can I access legal assistance in detention?

If you have the financial means, you are expected to pay for your own legal assistance.

If you have been detained in connection with a criminal matter and cannot afford a lawyer, you can ask for Legal Aid. You must ask the magistrate, when you appear in court, for Legal Aid.

Persons detained for immigration-related reasons only should seek the help of their spouses or partners, next of kin, other family members, friends, and religious counsellors to help find legal assistance. You might also want to contact a non-profit organisation (see Question 14).

11. Can asylum seekers or refugees be arrested, detained or deported?

Asylum seekers and refugees may not be detained for the purposes of deportation under the Immigration Act, as this could amount to a violation of the principle of non-refoulement, as set out by section 2 of the Refugees Act. (This prevents states from returning person where to a country where they may be subjected to persecution or where their life, physical safety, or freedom would be threatened.)

If a detained person is undocumented and intends to apply for asylum, they should declare this intention to the immigration officer upon arrest – and to their legal representatives or to the Court. They should not be detained or deported and should be allowed to apply for asylum.

Asylum seekers who have been finally rejected, who have received a notification to leave the country (‘must-leave’), and who have not taken the final rejection on judicial review are subject to arrest, detention, and deportation.

12. Can children be arrested or detained for the purposes of deportation?

The detention of children is allowed only as a ‘measure of last resort’. This is subject to certain safeguards, including that the detention:

1. must be for the shortest period possible;
2. must not separate the child from the parents or caregiver;
3. must accommodate children separately from other adults and
4. must accommodate children in facilities appropriate to their age.

Unaccompanied or separated foreign children should not be held in immigration detention and cannot be deported. Repatriation is only possible where approved by a social worker and the Children’s Court.

Unaccompanied or separated foreign children who appear to have an asylum claim should be assisted in applying for asylum, as set out at section 32 of the Refugees Act.

13. What happens at the Lindela Repatriation Centre?

If you are detained for the purposes of deportation, you may be transferred to the Lindela Repatriation Centre in Krugersdorp, near Johannesburg. Lindela was established in 1996, and is South Africa’s only immigration detention facility. Lindela is administered by a private company, African Global Operations (previously Bosasa), who administers security, catering, health, safety, accommodation and other services on behalf of the Department of Home Affairs. The Department of Home Affairs is responsible for the apprehension, holding, processing, deportation and release of undocumented migrants.

Despite the provision of the rights and safeguards mentioned above, many persons detained at the Lindela Repatriation Centre are not able to access the rights entitled to them. Detainees are frequently subjected to unlawful detention periods (including periods of over 120 days), illegal sentencing, restricted access to legal representation, a lack of availability of interpreters, corruption and bribery, and the use of force. Detention conditions are also poor, including with limited access to health, food and water, and overcrowding and unsanitary conditions. There are also reports of unlawful detention of asylum seekers and unaccompanied minors and children at Lindela.

While no reliable statistics are available on the number of deportations from Lindela, the Department of Home Affairs reports that they have conducted 15,033 deportations in the 2017/2018 financial year.

14. Who can be contacted for assistance or information?

Lawyers for Human Rights

4th Floor Heerengracht Building, 87 De Korte Street corner Melle Street, Braamfontein, Johannesburg, 2001

Tel:  +27 11 339 1960

Legal Resources Centre – Johannesburg Office

Bram Fischer Towers, 15th floor, 20 Albert Street, Johannesburg, 2001

Tel: +27 11 836 9831

http://lrc.org.za/

Legal Resources Centre – Cape Town

3rd Floor, Greenmarket Place, 54 Shortmarket Street, Cape Town, 8001

Tel: +27 21 481 3000

http://lrc.org.za/

Scalabrini Centre of Cape Town

47 Commercial Street, Cape Town, 8001

Tel: +27 21 465 6433

https://scalabrini.org.za/

UCT Refugee Rights Unit

University of Cape Town, Middle Campus, Kramer Law School Building

1 Stanley Road, Rondebosch, Cape Town, 7708

Tel: (27) 21 650 5581

http://www.refugeerights.uct.ac.za/

Authour: Ben Joop Venter. Thanks to Sindi Moyo and UCT Refugee Rights.