LAWYERS FOR HUMAN RIGHTS

1. 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

2. 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

3. 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

4. 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

5. 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

6. 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?

7. 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

8. 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

9. 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”

10. 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))

11. 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

12. 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

13. 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)

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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.

20. “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

21. 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

22. “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

23. 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

24. 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

25. 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

26. 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!

27. 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!

28. 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

29. 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

30. 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

31. 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.

32. 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

33. 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

34. 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

35. 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

36. 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

37. 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

38. 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

39. 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).

40. 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

41. 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

42. 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.

43. 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

44. 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.

45. 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.

46. 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”

47. 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

48. 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!

49. 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

50. 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