Press Release: Asylum seeker released from Lindela after detention without a warrant
Published by Legal Resources Centre 14 March 2016
For Immediate Release: 14 March 2016
On 10 March 2016, the Gauteng Local Division, Johannesburg, ordered the immediate release of Ms R from the Lindela Repatriation Centre in Krugersdorp. Ms R was represented by the Legal Resources Centre.
Ms R’s continued detention was in contravention of both section 21(4)(a) of the Refugees Act and section 34 of the Immigration Act. Ms R’s detention also contravenes a judgment handed down on the 28 August 2014 in the same court which found certain actions of immigration officials at Lindela unlawful and unconstitutional.
Ms R arrived in South Africa and lodged her application for asylum at the Musina Refugee Reception Office (RRO). She was issued with an asylum seeker permit which was valid until 17 December 2015 and which indicated that her application for asylum had been referred to the Standing Committee of Refugee Affairs (SCRA).
On 17 December, as her permit was due to expire, Ms R returned to the RRO. She was told that the office was experiencing system malfunctions and was turned away. When she returned the next day, 18 December 2015, Ms R was arrested and detained at Musina Police Station. She was transferred to Lindela Repatriation Centre on 5 January 2016, and at no stage was she provided with any decision of the SCRA.
Section 21(4)(a) of the Immigration Act clearly states that no person can be arrested for the purposes of deportation until a final decision has been made on their application for asylum. That person has the right to exhaust all reviews and appeals under the Act.
The LRC submitted that not only was Ms R’s arrest and detention in contravention of section 21(4)(a) of the Refugees Act, but it was also in contravention of section 34(1)(d) of the Immigration Act. This section requires the Department of Home Affairs to obtain a warrant from the Magistrates’ Court to confirm an extension of the 30-day period of detention allowed under the Immigration Act. No such warrant has been produced and Ms R was not given the opportunity to make representations challenging this extension.
Last week, the LRC and the State Attorney reached a settlement that was confirmed by an order of court. The settlement orders Ms R’s immediate release from detention and gives her the opportunity to exhaust her rights of review or appeal against any adverse decision against her.
We welcome the order of the High Court which protects Ms R’s constitutional right to administrative action that is procedurally fair. However, we express our concern with the ongoing practice of arbitrarily and unlawfully detaining foreign nationals.
It is of note that in the 2014 South African Human Rights Commission and Others v Minister of Home Affairs: Naledi Pandor and Others judgment the court found that:
No person can be detained for purposes of immigration detention without a warrant for more than 30 days as per the regulations.
No person can be held in immigration detention for longer than 120 days.
Persons in immigration detention should be given procedurally fair process, including being issued a prescribed notice of extension of detention, as well as the opportunity to make submissions in relation to any proposed extensions of their immigration detention.
Yet, unlawful immigration detention continues. Further examples of unlawful detention of foreign nationals are as follows:
On the 1 April 2015, the LRC assisted a 22-year-old Congolese national to be immediately released from Lindela after he was detained for longer than 30 days without a warrant.
On the 23 October 2015, the LRC assisted a Nigerian national to be released from was the West Bank Correctional Facility after his detention was unlawfully extended.