www.migration.org.za

Into the Legal Abyss: The Invisibility of Immigration Detainees in South Africa

Preventing Torture and Abuse Through Oversight

Roni AmitJD, Ph.D.

ISS 4th International ConferenceNational and International Perspectives on Crime ReductionAnd Criminal Justice21 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.zaDetainees 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 officersBorder (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 statusImmigration 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 AmitJD, Ph.D.

ISS 4th International ConferenceNational and International Perspectives on Crime ReductionAnd Criminal Justice21 August 2013