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Government wasting money, violating the rights of foreigners in arrests, detentions and deportations
Forced Migration Studies Programme, Wits University
June 09, 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: http://www.migration.org.za

For more information on the report, contact
Dr. Roni Amit, Researcher, Forced Migration Studies Programme
+263 76 779 2118
roniamit@gmail.com

For general information about migration, contact
Prof. Loren Landau, Director, Forced Migration Studies Programme
011 717 4038 or 083 453 4183
loren@migration.org.za

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