Government Wasting Money, Violating the Rights of Foreigners in Arrests,
Detentions, and Dangerous Deportations
9 June 2010
As South Africa eagerly embraces foreign fans for the Football World
Cup, thousands of additional foreigners—undocumented migrants, asylum
seekers, refugees and some lawful immigrants—face detention and
ultimately deportation from the privately run Lindela Repatriation
Facility. In arresting, detaining, and deporting those foreigners it
deems ‘illegal,’ the South African government is not only failing to
uphold its own laws, but also is violating international conventions and
the human rights of detainees. Detained asylum seekers face particular
threats not just to their liberty, but to their very lives if deported.
While there are signs of reform, the Department of Home Affairs (DHA)
has far to go to bring the facility in line with the country’s laws and
international obligations.
These conclusions are outlined in a report released Wednesday by the
Forced Migration Studies Programme (FMSP) at the University of the
Witwatersrand entitled "Lost in the Vortex: Irregularities in the
Detention and Deportation of Non-Nationals in South Africa".
Based on interviews with 734 detainees at Lindela over a 10-month
period, the research highlights a general failure to follow proper
procedures. Widespread corruption, administrative weaknesses, and
improper verification procedures by both police and DHA officials are
resulting in the detention of many individuals with legal immigration
status. DHA also detains significant numbers of asylum seekers—a
practice that courts have deemed illegal, as South African law protects
asylum seekers from detention as well as deportation. Asylum seekers
inside Lindela often had no mechanism to challenge their deportation,
despite the existence of legal provisions that bar their return to a
country where they may face persecution.
“The detention of asylum seekers raises serious human rights concerns,”
said Roni Amit, author of the report. “Individuals detained at Lindela
who fled threats to life and limb face deportation back to their home
countries without any determination that it is in fact safe for them to
return—a violation of South Africa’s international obligation to respect
the non-refoulement principle.”
The research also uncovered a pattern of prolonged and indefinite
detentions without judicial oversight. Although the law requires DHA to
obtain a court warrant to extend detentions beyond 30 days, most
detainees held for over 30 days had never seen such a warrant or
received the proper notification that their detention would be extended.
As such, they had generally been unable to exercise their right to
challenge the extension. A number of detainees were held in excess of
the maximum 120 days allowed by law, with no legal process governing
their continued detention and no information about the length of their
detention. These individuals were being detained indefinitely without
access to courts or other legal mechanisms.
“These results suggest that in a number of cases, the detention and
deportation of illegal foreigners is essentially taking place within a
legal black hole,” said Amit. “The arrest and detention processes are
governed by strict legal procedures. DHA cannot simply choose to abandon
the law when carrying out its mandate to control illegal migration.”
According to the report, problems within the facility are aggravated by
the delegation of daily operations to Bosasa (a private contractor). As
a result, detainees have limited access to immigration officers and are
often blocked from exercising their legally guaranteed rights. Detainees
were generally unable to access their rights of review and appeal, and
were often not even notified of these rights or were threatened with
indefinite detention if they tried to exercise them. Many detainees
expressed frustration at the uncertainty and lack of information
surrounding their situation. Corruption and violence were also common
themes.
The report notes that DHA is incurring unnecessary costs by illegally
detaining and deporting individuals who do not belong at Lindela. It
includes a number of recommendations aimed at addressing the
administrative failures leading to these increased costs. Key among
these is the establishment of oversight and accountability measures for
individual immigration officers and Bosasa employees.
“We recognize that DHA is aware of many of these issues and is working
to resolve them,” stated Amit. “In the meantime, the Department is
illegally detaining and deporting individuals. It is untenable for a
democracy to continue violating the human rights of foreigners,
particularly where the fundamental right of liberty is at stake. Rather
than sending a strong message to deter potential migration, the
government is instead sending a message that the rule of law is expendable.”
For the full report, please see:
www.migration.org
For more information on the report, contact:
Dr. Roni Amit
Researcher, Forced Migration Studies Programme
076 779 2118
[log in to unmask]
For general information about migration, contact
Prof. Loren Landau
Director, Forced Migration Studies Programme
011 717 4038 or 083 453 4183
[log in to unmask]
Please send replies to: [log in to unmask]
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Forced Migration Studies Programme
University of the Witwatersrand
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