ATC180508: Submission of a Legislative proposal: memorandum in terms of Rule 273 of the Rules of the National Assembly by the Portfolio Committee on Home Affairs, dated 8 May 2018
SUBMISSION OF A LEGISLATIVE PROPOSAL: MEMORANDUM IN TERMS OF RULE 273 OF THE RULES OF THE NATIONAL ASSEMBLY BY THE PORTFOLIO COMMITTEE ON HOME AFFAIRS, DATED 8 MAY 2018
The Portfolio Committee on Home Affairs (“Committee”) is hereby requesting the permission of the House in terms of Rule 273(1) for the introduction of the following legislation in the House, namely the Immigration Amendment Bill, 2018 (“the Bill”).
(1) Particulars of the Bill
- The Bill aims to amend the Immigration Act, 2002 (Act No. 13 of 2002),
(“the Immigration Act”), so as to revise and align the provisions in section 34 of the Immigration Act relating to the detention of illegal foreigners for purposes of deportation with the constitutional rights set out in sections 12(1) and 35(2)(d) of the Constitution of the Republic of South Africa, 1996 (“the Constitution”), following the Constitutional Court’s judgment in Lawyers for Human Rights v Minister of Home Affairs and Others  ZACC 22.
(2) Background and Objects of the Bill
2.1 On 29 June 2017, the Constitutional Court, in the Lawyers for Human Rights v Minister of Home Affairs and Others  ZACC 22 matter (“the Constitutional Court judgment”), declared sections 34(1)(b) and (d) of the Immigration Act inconsistent with sections 12(1) and 35(2)(d) of the Constitution in that these sections of the Immigration Act do not allow for automatic judicial intervention when an illegal foreigner is detained for purposes of deportation, and do not allow for a detained illegal foreigner to challenge the lawfulness of his or her detention in person in court within 48 hours.
2.2 The declaration of invalidity was suspended for a period of 24 months from the date of the order to enable Parliament to correct the defect in sections 34(1)(b) and (d) of the Immigration Act. Pending the correction of the defect within 24 months (namely, by 28 June 2019) or upon the expiry of this period, the Constitutional Court ordered that any illegal foreigner detained under section 34(1) of the Immigration Act must be brought before a court in person within 48 hours from the time of arrest or not later than the first court day after the expiry of the 48 hours, if 48 hours expired outside ordinary court days. The Constitutional Court also ordered that illegal foreigners who were in detention at the time the order was issued, must be brought before a court within 48 hours from the date of the order or on such later date as may be determined by a court.
2.3 The Bill will, inter alia, address the Constitutional Court judgment by amending sections 34(1)(b) and (d) of the Immigration Act, so as to ensure that any illegal foreigner detained under section 34 of the Immigration Act is brought before a court in person within 48 hours from the time of arrest or not later than the first court day after the expiry of the 48 hours, if the 48 hours expired outside ordinary court days. The Bill will also provide that detained illegal foreigners must appear in person in court to challenge the extension of his or her detention. The Bill will also include any necessary consequential amendments following the proposed amendments to section 34.
(3) Financial Implications for the State
The Department of Home Affairs is currently implementing the Constitutional Court order and hence the proposed legislation will not lead to any additional expenditure for the state.
(4) Views of the Executive on the objects of the proposed legislation
The Department of Home Affairs supports the proposed legislation.
Report to be considered
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