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 covering
 The Basics: Provisions of the Immigration Act and
Refugees Act
 Role of Law Enforcement
 The Basics of Bail as they apply to Foreign Nationals
The Basics: Applicable Law
 Immigration 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’d
 Section 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 Act
 Section 34(1) allows an immigration officer to arrest
and illegal foreigner or “cause” him or her to be
arrested
 Must 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
Minister
 Practical 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’d
 s. 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 understands
 It is rarely possible, practicable or available
Detentions exceeding 30 days
 s. 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 Detention
 s. 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 deportation
 Section 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 out
 Section 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 wording
 with respect, typical of this poorly drafted act
Deportation after prison sentence
 Section 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 ships
 Section 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 warrant
 LHR v. Minister of Home Affairs, 2004 (7) BCLR 775 (CC)
The Basics: The Law Cont’d
 Police 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 Law
 Refugees Act (Act no 130 of 1998)
 Provides for detention of asylum seekers who have
breached conditions of permit
 Section 23: a permit may be removed by the Minister
and the holder caused to be arrested
 Regulation 8(2): when the Minister may remove a permit
The Basics: Refugees Act
 Removing an asylum permit does not negate an
asylum claim: Regulation 9 and Section 2
 Section 29: Detentions under the Refugees Act must
be reviewed by a High Court every 30 days
Refugees in the Criminal Justice
System
 Recognized refugees convicted of crimes should be
treated as any other South African
 A criminal conviction cannot be used as a reason to
withdraw status
 Is not included as a reason for cessation under section 5
of the Refugees Act
Asylum Seekers in the Criminal
Justice System
 One 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 days
 Section 29
Section 28, Refugees Act
Rights 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 article
 Must be:
 A danger to the security of the country; or
 After a final judgment of a particularly serious crime
Consequences of refoulement
 When 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 persecution
 Danger 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 system
 Severe access problems at all refugee reception offices
 Large-scale corruption among officials
 Lack of knowledge by police and immigration officers
 Attitude of preventing “abusive claims” from entering
RSD system
Immigration + Refugees Acts
 Section 21(4) Refugees Act: an asylum seeker cannot be
prosecuted for illegal entry or remaining illegally in
the Republic
 Must have made an application for asylum, or
 Must have been recognized as a refugee
Immigration + Refugees Acts
Cont’d
 In 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 adjudication
 Section 2 of the Refugees Act
Offences under the
Immigration Act
 Unfortunately, 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’d
 Section 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. 41
 Must 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 status
 In Pretoria and Johannesburg, police rarely contact
Refugee Affairs
 Station Commissioner is responsible to ensure all
detainees are legally detained
 Will not release someone without documents
 Theoretically, 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 41
 Regulation 32
 Only an immigration inspector has authority
under section 34(1) to arrest and deport.
 May detain for up to 30 days without a warrant
 No 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 Republic
 Contact cells at Police Station and verify that detainee is
being held there
 Write 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 station
 Most likely, the police will not release without
immigration
 Perception 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 station
 Get details of which regional DHA office sends
immigration inspector
 Contact immigration officer to explain situation or fax
letter to regional office
Call from police station
 Depending 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 application
 Some refugee affairs officers will be hesitant to release
without a power of attorney
 Giving the name of a refugee affairs officer to the
immigration officer may help
Call from police station
 Convincing an officer that an undocumented, yet
hopeful asylum seeker should be released is more
tricky
 May require some knowledge of the country of origin
 If a detainee is not released from the police station,
they will most likely be sent to Lindela
Call from Lindela
 In some ways, it’s easier to assist a client who is at
Lindela
 We can visit them personally
 There is a permanent immigration staff at Lindela to
speak with
Call from Lindela
 Unaccompanied minors are no longer allowed at
Lindela
 They must be placed in a ‘place of safety’ through
Social Development.
 Lindela has a policy of not placing any children at
Lindela
 This may lead to expedited deportations of women with
children
Zimbabwean nationals in
detention
 Zimbabwean nationals are now subject to a
moratorium on deportation
 Only those released from prisons for deportation will be
removed from the country
 In anticipation of the exemption permits under section
31(2)(b) of the Immigration Act
 If 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 Lindela
 Write a letter to Lindela regarding the detainee’s
situation
 Immigration 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 NUMBERS
 Refugee Affairs: 012-810-8177
 Deportations: 012-810-8522
 Legal Services: 012-810-8574
 Lindela: 011-660-1305 or 011-665-2554
 Bosasa: 011-660-9097
Case Law
 Circular 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 Law
 Lawyers 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 Act
 Important 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 Law
 Centre 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 Lindela
 The rights of children in the Bill of Rights applies
equally to foreign children
 The 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 Law
 Ulde v. Minister of Home Affairs and Others, [2009]
ZASCA 34
 Judgment 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 Bail
 Procedure 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) Factors
 Foreign 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
Refugees
 Refugees and asylum seekers are a special category of
“foreign national”
 They do not have ready access to travel documents
 Recognised 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 proof
 There is no onus on the accused to prove that he or she
will not be a flight risk
 Branco 2002 (1) SACR 425 (T)

(as reported in “Criminal Procedure Handbook”, Joubert et al.
8th Edition, Juta & Co., p. 151)
 Unlike other jurisdictions
 Court may use its “common sense” in considering each
of the factors
Conditions of Bail
 The 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