Press Release: Constitutional Court’s judgment on detention under the Immigration Act welcomed
Published by Legal Resources Centre 29 June 2017
For Immediate Release: 29 June 2017
The Legal Resources Centre welcomes the Constitutional Court judgment handed down today, 29 June 2017, in Lawyers for Human Rights v Department of Home Affairs which held that the detention of alleged or suspected illegal foreigners without prompt judicial intervention was unconstitutional.
The LRC represented People Against Suffering, Oppression and Poverty (PASSOP) as a friend of the court.
The matter concerned the procedures and safeguards governing the detention of people suspected of being illegal foreigners under section 34(1) of the Immigration Act 13 of 2002. The High Court had declared sections 34(1)(b) and (d) of the Act constitutionally invalid. The Constitutional Court upheld the declarations of constitutional invalidity.
Lawyers for Human Rights (LHR) had challenged these sections of the Act for two reasons. First the Act does not require that a detained person be automatically brought before a court within 48 hours in order for the court to confirm the lawfulness of their detention, which is the case for other detained people.
Secondly, LHR argued that, while the Act envisages a warrant being obtained from a Magistrates’ Court for the continued detention of the suspected illegal foreigner, the Department of Home Affairs interpreted this in a way that meant that the detained person did not have to appear in person before the Magistrate concerned.
PASSOP supported LHR’s arguments challenging these sections of the Act. PASSOP made submissions to the court on the relevance of binding and non-binding international legal instruments, foreign law, reports of specialised bodies, as well as standards and guidelines relating to judicial oversight of immigration detention.
PASSOP also argued that international and comparative law must be consulted when interpreting section 34(1) of the Act. It further contended that the failure of the impugned provisions to provide for minimal procedural safeguards for immigration detention is inconsistent with international guidelines and standards applicable to immigration detention.
We are pleased that the Court embraced the constitutional considerations. We welcome the judgment as a vindication of Constitutional principles and human rights for everyone in South Africa, including foreigners, whose dignity and liberty must be respected by the state.