Long-delayed amendments to Immigration Act tabled

The department of home affairs has tabled the Immigration Amendment Bill to give effect to two Constitutional Court judgments related to the rights of illegal foreigners. 

One of the judgments dates back to 2017 and in the meantime the department of home affairs — having failed to amend the principal act within the two years given by the court — has been implementing the remedies laid down in the judgment.

With parliament nearing the end of its term, there is no time for the bill to be processed before then, so it will have to be held over for the next parliament to deal with.

The bill provides that an arrested foreigner must be informed of their rights in a language they understand on arrest or immediately thereafter. These rights include the right to be notified in writing of the deportation decision, the right to appeal such a decision and the right to make representations to a court.

The bill also introduces the interest of justice criterion to guide immigration officers and the courts in the exercise of their detention powers. 

It provides that an immigration officer may arrest and detain an illegal foreigner for purposes of deportation only after an interview and after consideration of whether the interests of justice permit the release of such foreigner, subject to reasonable conditions. 

A detained foreigner must be brought in person before a court within 48 hours of his or her 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 court must consider whether the detained foreigner can be released subject to reasonable conditions and, if not, may authorise a further detention for a period not exceeding 30 calendar days. In this event, the foreigner must be brought before the court before the expiry of the period of detention so the court can decide whether to release them. If the court decides against a release, it may authorise the further detention of the foreigner for a period not exceeding a further 90 calendar days. 

The foreigner brought before a court must be given an opportunity to make representations to the court and such representations must be considered together with input by the immigration officer. 

The first Constitutional Court judgment in 2017 ruled sections of the principal act were inconsistent with the constitution and therefore invalid insofar as they did not require the detainee to be informed of their rights, including the right to legal representation. The declaration of invalidity was suspended for a period of 24 months until June 28 2019 to enable parliament to correct the defects. 

The court ruled that during this period of suspension or if the act was not amended by the deadline date, then any illegal foreigner detained under the 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 court also ordered that illegal foreigners who were in detention at the time the order was issued had to 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.

The department said in the memorandum to the bill that the processing of illegal foreigners for purposes of deportation had since the judgment been in accordance with the remedy provided by the Constitutional Court. 

The court also found that the principal act is deficient in that it does not require the automatic judicial review of a detention before the expiry of 30 days and does not allow the detainee an opportunity to make representations to the court, either orally or in writing, nor does it permit the detainee to appear in person before the court to challenge the lawfulness of the detention. It also does not permit the detainee to make any representations to the court on whether the grounds advanced by an immigration officer meet the standard of being good and reasonable.

The court also found the principal act unconstitutional, because it did not set down the conditions or provide guidance on how the power to detain should be exercised. 

A 2023 judgment of the Constitutional Court provided more relief to supplement the 2017 order. It provided for an in-person appearance by a detainee when a court is considering whether to extend a detention beyond 30 days. It also introduced criterion to guide immigration officers and courts in the exercise of their arrest and detention powers. These revisions would apply pending the amendment to the act. 

The ruling also gave the court the power to authorise the further detention for a limited period of a person if it concludes that the interests of justice do not permit the person’s release. 

ensorl@businesslive.co.za