The Committee met with stakeholders and the Department of Home Affairs to engage in Public Hearings on the Immigration Amendment Bill. All the stakeholders agreed that the Immigration Act should be amended. However, all stakeholders said that it was contrary to the Constitution and international law and also against the rights of undocumented foreigners to detain a person for 180 days before they were deported. Hence all stakeholders agreed that the proposal to extend the 120 days of detention by two additional times of 30-day periods as a result of lack of cooperation was unconstitutional. Each stakeholder suggested that some phrases be re-drafted, each application should be dealt with on a case by case basis and Department should implement the law correctly.
UCT Refugee Rights Clinic said the re-opening of the Cape Town Refugee Reception Office for new asylum applications, would assist with the backlog of asylum applications, and pleaded with the Committee to create a platform between human rights lawyers and the Department to ensure that a good working relationship existed between the two agencies.
Lawyers for Human Rights (LHR) Pretoria noted that in Pretoria presently Immigration officers were only issuing immigrants with appointments rather than refugee permits. The solution is to document people from the SADC region with a SADC visa and differentiate them from people from the west. The Department should remove the areas of non-cooperation in the Immigrant Act and add criminal charges for persons that blatantly misled the Immigration Officer to justify the detention of any person and remove non-cooperation if it was the State does not accept the person.
The Scalabrini Institute for Human Mobility in South Africa (SINHM) said it expected that detention would be used as a last resort, Immigration officers should apply their minds to cases specifically, and the guidelines for the day to day operations of the Immigration Act should be given through legislation or competent authority. Also, a lot of immigrants avoided coming through the border point of entry because they did not know that they could come through the border and were afraid that they could be turned away.
The Committee remarked that the appearance of stakeholders had led to a need for proper implementation of the Immigration Act, systems that talk to each other and letting refugees know that they can present themselves at the border. The only Section in contention was the additional two 30-day periods based on non-cooperation. The Chairperson remarked that a summary of the other submissions would be presented to each Member and the Committee would further engage on the Immigration Amendment Bill using the parliamentary process.
The Chairperson welcomed Members, the UCT Refugee Rights Clinic, the Lawyers for Human Rights (LHR), the Scalabrini Institute for Human Mobility in South Africa (SINHM) and the Department of Home Affairs (DHA). The purpose of the meeting was for the Committee to engage in Public Hearings on the Immigration Amendment Bill. The public hearing was set up to enable the amendment of Section 34 of the Immigration Act in compliance with the Constitutional Court judgement of the 27 June 2017–the Court confirmed a High Court ruling that declared Section 34 (1) (b) and (c) of the Immigration Act (Act No.13 of 2002) inconsistent with Section 12 (1) and 35 (2) (d) of the Constitution in that the Act did not allow a detained illegal foreigner to challenge the lawfulness of his detention in person in court within 48 hours. He appreciated the LHR who had taken steps to correct portions of the Immigration Bill and said the He invited Mr Popo Mfubu Attorney from the UCT Refugee Rights Clinic to brief the Committee.
UCT Refugee Rights Clinic
Mr Popo Mfubu, Attorney, UCT Refugee Rights Clinic, highlighted the support his agency provided and recalled the plight of asylum seekers detained based on Section 34 of the Immigration Act and said his office had been set up to ensure that there were sufficient safeguards for the rights of refugees in the country. He said many undocumented asylum seekers had been denied the opportunity to apply as a result of the unlawful actions of DHA. The decision by DHA to suspend services in two of its five Refugee Reception Offices for first-time asylum applications despite the court ruling to open the offices had led to added pressure and delays for many new applicants. It is evident that genuine asylum seekers are unable to get appointments and the barriers of accessing the remaining refugee reception offices have resulted in the detention of asylum seekers even though they genuinely want to get documented. He appealed to the Committee to call on the DHA to re-open the Cape Town Refugee Reception Office (CTRRO) for new asylum applications as this would assist with the backlog of asylum applications. The key issues of concern are that the Draft Bill did not clarify what the interview entails but says ‘prescribed interview’ and the default position of immigration officers is to detain asylum seekers. The UCT Refugee Rights Clinic suggests that the immigration officer should consider applications on a case by case basis. DHA should consider if the applicant has a fixed address, means of purchasing a ticket back to his country of origin, is at risk of absconding when released, is a potential security threat or has ties in the country before detaining the undocumented foreigner. The Draft Bill does not mention the use of a competent interpreter during the interview contemplated in Section 1A of the Draft Bill. His office was concerned that the rights and liberty of the applicants were denied according to Section 34 of the Draft Bill. Previously the requirement was that an applicant could only be detained for no more than 120 days in total but a proposal to extend this by two additional times of 30-day periods as a result of lack of cooperation is being made. He expressed concerns that it was contrary to the Constitution and international law and against the rights of undocumented foreigners to detain a person for 180 days before they were deported. DHA has only one repatriation centre at Lindela hence a lot of the detained people get locked up in criminal cells. He concluded by saying the Draft Bill was an important step to address the way immigration officers approach the detention of foreigners with regard to the Immigration Act but expressed concerns on gaps that could cause the applicants to be deprived of liberty and violate their rights.
Mr M Hoosen (DA) agreed with Mr Mfubu that genuine asylum seekers were unable to get appointments, this was evident because the earliest appointment date available at Durban was January 2019. The extension of detention period from 120 to 180 days was not unfounded because some asylum seekers who were actually economic migrants did not cooperate with Immigration officials. He asked Mr Popo Mfubu for measures to manage the trend because the DHA had the responsibility to curb the trend.
Ms S Nkomo (IFP) asked if Mr Mfubu had any data to corroborate the deprivation of liberty and violation of rights of foreigners in South Africa in comparison to other countries. She asked him to state the steps that his agency used to assist any applicant that did not have the opportunity to the services of a competent interpreter. She asked for clarity on where the children of detainees were kept and also to list any serious issues that affected detainees.
Ms D Raphuti (ANC) asked Mr Mfubu to state the mechanisms his agency used to assist South Africa to get the biometrics of undocumented foreigners because this went a long way to safeguard and secure the country.
Mr A Figlan (DA) remarked that during the Committee’s oversight, it noticed that Immigration officials had challenges with asylum seekers that pretended that they did not understand questions. He asked him to state the mechanisms used to assist and state where the asylum seekers stayed.
The Chairperson commended the DHA for its immigration practices which had allowed asylum seekers and illegal immigrants to be integrated into the society but noted that the State did not have the capacity to monitor asylum seekers and illegal immigrants. He asked Mr Mfubu to state measures to deal with the security of the country and what happened to an illegal immigrant after the period of detention.
Mr D Gumede (ANC) appreciated Mr Mfubu’s inputs on the Draft Immigration Bill.
Mr Mfubu said the crux of the matter was to determine if the foreigner would compromise the security of the country. To date there was no data that suggested that foreigners perpetrated crime in the country. South Africa owed a duty to assist other Africans because when South Africa had challenges other African countries supported the Republic nationals.
He congratulated the country for issuing Zimbabweans with the Zimbabwean Exemption permit (ZEP) and Zimbabwean Special Dispensation permit (ZSP). The reason that the Refugee Appeal Boards have backlogs is because they did not follow the law or treat cases on merit. The agency is currently on a case where it is challenging the manner in which the Cape Town refugee office documents dependants of refugees. There are many undocumented children because DHA is not linking dependants to their parent’s files. Opening up Refugee Reception Offices would get asylum seekers documented, the proportion of foreigners’ who would prefer not to be in detention is high. The proportion of immigrants is less than 5% of the population and no single Government can stop immigration. The country needs to create a fair immigration system to ensure that illegal immigrants do not manipulate the system. The condition of immigration offices is inhumane and the applicants should be treated in a dignifying and respectable manner. DHA should increase the number of its officers and capacity at the Refugee Reception Offices. The system used to adjudicate asylum status must be clear and fair to ensure that applicants do not perceive it as a lottery. The law is clear if the applicant could not be deported within 120 days then the applicant needs to be released; an extension of 60 days is grossly unfair and failure to cooperate is not an excuse. As a result of abuse of interpreter rights our firm had to go to court as an intervention and won the case. The goal of the agency is to see 5000 people a year but it currently supersedes this amount. Many of the undocumented foreigners have addresses, support systems, are not destitute and do not live on the street. Children are not supposed to be kept in detention the cases are rare however on one occasion it was permitted because a mother needed to breast feed the baby.
Mr Hoosen agreed with most of the points of Mr Mfubu but noted that the country had a high number of undocumented immigrants. The activities of Immigration officers impacts on refugee rights. A high number of undocumented foreigners who claim to be asylum seekers but are actually economic seekers abuse the asylum seeker process hence the time was increased from 120-180 days. He asked him to state how immigration officers curb the activities of economic seekers who abuse the asylum seeker process.
The Chairperson asked the legal department of DHA to comment on the time extension from 120 -180 days, lack of competent interpreter, and relationship between DHA and its stakeholders.
Mr Deon Erasmus, CD Legal Services unit: DHA, said it had convened meetings with LHR but DHA was constantly seeking room for improvements.
The Chairperson encouraged DHA to run a queuing system to assist with documentation even though DHA may not be able to complete the process at that time. A Section 23 visa which took in biometrics was given at borders to get an asylum seeker a temporary visa but a lot of undocumented foreigners did not come in at the border.
Mr Mfubu pleaded with Parliament to create a platform between human rights lawyers and DHA to ensure that a good working relationship existed between two agencies. Even though there would be undocumented foreigners that wanted to abuse the system by creating a clear and efficient system which did not allow abuse an undocumented foreigner would not stay undocumented for 10 years if they have been fairly treated. Citizens need to disabuse their minds from fairy tales that undocumented foreigners want to take their women, jobs or food from them.
Mr Erasmus informed the Committee that extensions would only occur if the immigration officer has evidence to substantiate the case.
The Chairperson appreciated Mr Mfubu for clarifying issues and invited Ms Faith Munyati, Attorney, Refugee Law, Pretoria.
Lawyers for Human Rights (LHR)
Ms Monyati highlighted the support the agency provided and said that currently, in Pretoria, Refugee Permits were not renewed but they were only given appointment slips.
The Chairperson asked Ms Monyati to assist the Committee with solutions to curb the trend of non-renewal of Refugee Permits.
Ms Monyati made the following recommendations on behalf of LHR
Constitution is supreme; the specific reference to the Constitution and the Bill of Rights in the definitions of the Immigration Act should be retained.
Although LHR is satisfied with Section 34(1)(b) of the principal Act, the phrase “to confirm” should be removed and replaced with the term “to authorise” under Section 34(1)(b). This phrase is not fair because it implies that the magistrate is merely to confirm and could lead to rubberstamping. LHR suggested the phrase to authorise to show that the magistrate is in control of and can analyse the case. LHR requests that the additional two periods of 30-day detention in the case of non-cooperation under section 34(1)(d) of the principal Act be removed because it is unlawful and is vague. A criminal offence of non-cooperation should be instituted against a person that blatantly refuses to cooperate instead. However, any additional detention based on the non-cooperation of another State is a violation of Section 12(1)(a) of the Constitution should be removed because it is outside the purview of the person. DHA should provide further guidance to what is “justified” detention in the interview process under Section 34(1A) of the principal Act with reference to the principles given by the Supreme Court of Appeal. DHA needs to provide further reference to alternatives to detention which exist in the Immigration Regulations, 2015, including the use of forms upon release and provision of documentation for non-nationals who cannot be deported under the principal Act. The release from detention does not end the deportation in line with Section 32(2) of the Immigration Act as it is difficult to carry out the deportation for Stateless persons. LHR is pleased with the Immigration Act but notes that not all undocumented foreigners need to be detained. The solution is to implement the law in the existing Refugee Act however refugees are given appointments because the State does not have enough resources to issue a refugee permit available. However South Africa cannot justify not documenting foreigners because the undocumented foreigner loses jobs and cannot be educated even though the problem is maladministration.
The Chairperson asked LHR how it identified the situation as a maladministration.
Ms Monyati said the situation was not because of lack of capacity but due to lack of proper decision making. Migration exists within the country but undocumented foreigners are challenged because they have to return back to the place they received the first refugee permit because the system is not integrated. This puts pressure on the foreigner and increases the number of undocumented foreigners.
The Chairperson asked LHR how it would deal with systems that did not communicate because migration within the country was a reality due to economic reasons. He asked if LHR had identified the country of origin of the migrants. He asked DHA if undocumented foreigners were provided with legal representatives.
Mr Erasmus said if an issue of illegality had been established in the case the applicant would be deported. However, the immigration officer must provide documented evidence that the undocumented foreigners entered the country illegally and legal representation must be provided in court.
Mr Hoosen asked if Ms Monyati was suggesting that the period of extension of detention be substituted with criminal charges. The increase from 120 to 180 days by DHA is to give time to the immigration officer to find a solution.
Ms S Nkomo (IFP) observed that DHA seemed to have a fault because migrants visit refugee centres to get documented but are turned back, hence she asked LHR to state what the country could do. She asked DHA to show the Committee what it was doing to stop corrupt officials from extorting money from undocumented foreigners and abusing the system. She recalled that South Africans were kept in in some inhumane camps when the country was challenged but the Immigration policies of the country are better than some other countries currently. She expressed concerns on why illegal migrants kept entering the country even when South Africa has one of the best Immigration laws.
Ms Raphuti welcomed the inputs of Ms Monyati and said a situation where a person must renew his refugee permit in different Provinces because systems were not integrated was tedious especially when it led to the detention of such persons.
Mr Figlan said the brief was mind opening and DHA should listen. The renewal of refugee permit that requires an immigrant to travel to a different Province in conjunction with corrupt officials shows that DHA should employ consequence management measures. Also, DHA needed to open new offices in other Provinces.
Mr Gumede asked how the country could manage pull factor to the country due to non-desirable elements who would otherwise be convicted of crimes in their countries of origin. He expressed concerns on how illegal immigrants who did not cooperate with immigration officers could be managed and said the Committee needed to discuss the possibility of getting them charged criminally.
Ms Monyati said illegal immigrants who blatantly suppress the truth should be criminally charged based on offences in Section 3494) and 34(5) but to do this DHA had to give a definition of non-cooperation. She explained that non-cooperation was both being Stateless and blatant concealing of facts. DHA has to confirm that blatant concealing of facts leads to criminal charges since being Stateless was not the fault of the undocumented immigrant.
The Chairperson asked for her proposal on non-cooperation that could lead to criminal charges.
Ms Monyati said her proposal was for DHA to define such non-cooperation.
The Chairperson asked her to suggest how it should be crafted.
Ms Monyati said it should be crafted as ‘an individual who was blatantly misleading the Immigration Officer’.
The Chairperson asked for DHA legal team’s comments.
Mr Erasmus said if non-cooperation was defined it could evolve over time that was why it was captured in the Immigration Amendment Bill based on Section 34 this would allow DHA to add or delete things that could be non-cooperation.
The Chairperson reminded Mr Erasmus that LHR was sounding a note of warning that it could be unconstitutional and could lead to DHA losing the case in court. He suggested that the Committee would engage on it. He asked LHR to state areas of concern with two additional terms of 30days that is proposed in the Immigration Amendment Bill.
Ms Monyati said the phrase “to confirm” should be removed and replaced with the term “to authorise” under Section 34(1)(b). DHA should remove the areas of non-cooperation and add criminal charges for persons that blatantly mislead the Immigration Officer, justify the detention of any person and remove non-cooperation if the State does not accept the person. There are two separate Acts the immigration and the Refugee Acts if a person is charged, South Africa cannot send them back to country of origin if they would face bodily harm. The country would allow them to serve the terms in South Africa because everyone has the right to life. A lot of economic migrants take advantage of the refugee application system because they want to get easily documented. The solution is to document people from the SADC region with a SADC visa and differentiate them from people from the west.
The Chairperson resolved that the Committee would host such sessions to address amendments on immigration applications. He invited Mr Corey Johnson
Scalabrini Institute for Human Mobility in South Africa (SINHM)
Highlights of Mr Corey Johnson (SINHM) included findings of the Constitutional Court, the fact that the Immigration Act was promulgated to promote dignity and examples of people detained at Lindela for over a year. One of the inmates in Lindela contracted tuberculosis during the period of incarceration. SINHM expects that detention would be used as a last resort, Immigration officers should apply their minds to cases specifically, and the guidelines for the day to day operations of the Immigration Act should be given through legislation or competent authority. The phrase ‘where necessary’ be inserted in Section 2C to qualify language requirements.
Mr Figlan expressed concerns over the report on the inmate at Lindela and asked Mr Johnson to clarify if immigration officials were lying or the person that contacted tuberculosis was lying because Lindela has a health facility. During its oversight visit, the Committee discovered that the human rights office at Lindela was closed; this suggests that DHA does not have a good working relationship with LHR. Hence, he asked SINHM to state how its relationship with DHA could be improved and its recommendations on the two periods of extension on the grounds of non-cooperation.
Ms Nkomo remarked that Mr Johnson’s input was not consistent with the Committee’s oversight reports which had noted that the meals served were improper. Hence the tuberculosis infection might be as a result of improper meals. She asked Mr Johnson to clarify if there had been any outbreak or just a few people that had been infected by preventable diseases. She asked for SINHM’s comment on an undocumented immigrant who was deliberately uncooperative and asked him to state what would have happened to children if their parents were detained at Lindela.
Mr Johnson said tuberculosis was not the norm at Lindela but inmates do contact such preventable diseases. The gentleman entered Lindela on two entries with his name being incorrectly spelt the second time. The pictures taken by SINHM showed his deteriorating health condition.
The Chairperson remarked that the Committee only noted the nutritional challenges during its visit. The Committee visited the clinic at Lindela and noticed that the clinic was more functional than some hospitals.
Mr Johnson said the state of the health of detained inmates could be verified from other NGO’s, Doctors without Borders and LHRs. He invited the Committee to invite SINHM for more chats
The Chairperson asked LHR to make comments.
Ms Monyati said Doctors without Borders did a lot of a work in monitoring the health of those detained; LHR’s jurisdiction was limited to protecting the rights of people.
The Chairperson said the Committee would invite SINHM for chats in the future.
Mr Johnson said a lot of immigrants avoid coming through the border point of entry because they do not know they could and are afraid that they could be turned away.
The Chairperson noticed that immigrants did not always want to come in through the border in other countries as well. He asked for SINHM experience in South Africa.
Mr Johnson said some immigrants were denied at Beit Bridge between Zimbabwe and Limpopo, South Africa but he could not comment on why they were denied.
The Chairperson noted that UCT Refugee Rights group, LHR and SINHM went to court on behalf of undocumented immigrants which showed that the relationship between DHA and its stakeholders was not good and needed to be improved
Mr Gumede noted that during the meeting an NGO delivered correspondence with balloons and expressed concerns that it might not be proper because the State was approaching elections. He asked for clarity on the rules to engage such.
The Chairperson noted that people had a right to express themselves in any way that they deemed fit and the rules of Parliament did not restrict such expressions. The Committee Researcher had informed him that it was an NGO clamouring for opening Refugee Reception Offices in Cape Town. He remarked that the appearance of stakeholders had led to a need for proper implementation of the Immigration Act, systems that talk to each other and letting refugees know that they can present themselves at the border. The only Section in contention is the additional two 30-day period based on non-cooperation.
Mr Figlan appreciated the facilitators but stated that the Committee needed to inform DHA of the places it was failing.
The Chairperson remarked that a summary of the other submissions would be presented to each Member.
The meeting was adjourned.
- Scalabrini Centre of Cape Town (SCCT): 1 Annexure
- Scalabrini Centre of Cape Town (SCCT) submission
- Refugee Legal and Advocacy Centre submission
- Lawyers for Human Rights (“LHR”) submission
- Law Society Northern Provinces submission
- Corruption Watch submission
- Consortium for Refugees and Migrants in South Africa (CoRMSA) submission
- University of Cape Town’s Refugee Rights Unit submission
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