Into the Legal Abyss:
The Invisibility of Immigration Detainees in South
Africa
Preventing Torture and Abuse Through Oversight
Roni Amit
JD, Ph.D.
ISS 4th International Conference
National and International Perspectives on Crime Reduction
And Criminal Justice
21 August 2013
www.migration.org.za
Key Aspects of SA’s Detention
Regime
• Securitization of Migration
• Have moved from discretionary to
routine practice of detention
• Limited access to rights within
detention
www.migration.org.za
Detainees outside Lindela following a court ruling ordering their release
www.migration.org.za
Detention Facilities
Lindela Detention Centre
•Only authorised immigration detention facility
•Detentions only for the purposes of deportation
•Daily operations contracted to Bosasa: limits contact
with immigration officers
Border (Musina)
•No authorised facility
•SMG no longer in use
•Detention and deportations directly from police cells
www.migration.org.za
The Detention Regime
Refugees Act
•Asylum seekers and refugees
•Detention an exceptional category
•Detained asylum seekers retain status
Immigration Act
•All other categories of migrants
•Detention of illegal foreigners, but only for the
purposes of deportation
•Procedural guarantees to prevent arbitrary or
indefinite detentions
www.migration.org.za
Repercussions of Securitization
1) Merging of Asylum and Immigration
Regimes detention of asylum seekers as
illegal foreigners
2) General failure to adhere to procedural
guarantees in the Immigration Act:
detentions not governed by law
EFFECT: Lindela has become a legal abyss: no
legal identity in detention
www.migration.org.za
Merging of Immigration and Asylum:
Expansion of illegal category
From asylum seeker to illegal migrant:
•An individual arrested as an illegal foreigner retains
this status after applying for asylum
•An individual becomes an illegal foreigner if
his/her asylum permit expires
•Initial rejection = illegal foreigner
•‘right to sojourn’ can be exercised from detention
•Asylum seekers who do not have another legal way
to enter the country = illegal foreigners
www.migration.org.za
Absence of Procedural Protections
• Verifications not taking place + presumption of
illegality
• Failure to obtain necessary warrants to extend
detentions
• Deliberate circumventing of legal procedures
• Detentions longer than 120 days
• Arbitrary and indefinite detentions
• Detentions not governed by law
• DHA continues to engage in practices ruled illegal
by a court
www.migration.org.za
Monitoring at Lindela
Lack of Monitoring at Lindela
•Only SAHCRC empowered to conduct unauthorised
visits
•DHA does not grant permission for monitoring
visits
•Limited information about immigration detainees
•Information from previous surveys and legal cases
on behalf of individuals
www.migration.org.za
Invisibility of Immigration Detainees
Who is in Detention:
How many people?
For how long?
Do they have any claim to remain in the country?
What is the risk if returned to countries of origin?
Only those individuals who manage to obtain legal
assistance become visible
Most detainees unable to exercise legal rights
www.migration.org.za
Need New Approaches to Advocacy Around
Immigration Detention
• Move beyond traditional understandings of
detention monitoring: alternative mechanisms for
information gathering to counter DHA’s control of
information
• New strategies for advocacy: move beyond focus
on rights violations
• Focus on issues that will resonate with the public,
e.g. costs, ineffectiveness, rule of law
Make immigration detainees visible again
www.migration.org.za
Into the Legal Abyss:
The Invisibility of Immigration Detainees in South
Africa
Preventing Torture and Abuse Through Oversight
Roni Amit
JD, Ph.D.
ISS 4th International Conference
National and International Perspectives on Crime Reduction
And Criminal Justice
21 August 2013
www.migration.org.za