Rights of detained suspected illegal foreigners under spotlight in ConCourt

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Rights of detained suspected illegal foreigners under spotlight in ConCourt

Ernest Mabuza | 2017-03-14 15:17:13.0

The high court held that two subsections in the Immigration Act were inconsistent with the Constitution. File photo.

Image by: Gallo Images/Thinkstock

The detention of suspected illegal foreigners for over 30 days‚ without the need to appear in court in person within 48 hours‚ was inconsistent with the Constitution.

This is the submission made by Lawyers for Human Rights‚ which appeared before the Constitutional Court on Tuesday to confirm an order made by the high court in Pretoria last year.

The high court held that two subsections in the Immigration Act were inconsistent with the Constitution.

One subsection allows the immigration officer to detain a person he suspects of being an illegal foreigner for 30 days without the need for the suspect to appear in court within 48 hours.

The Immigration Act as it stands provides that someone determined to be an illegal foreigner by an immigration officer may be detained for 30 days by that officer without a warrant‚ plus a further 90 days with a warrant issued in chambers by a magistrate. 

At no point is a detainee brought in person before a court to explain why he or she should not be detained.

The high court in Pretoria set aside the two provisions of the Immigration Act as invalid.

Only the Constitutional Court may confirm the constitutional invalidity of any law.

Lawyers for Human Rights advocate Steven Budlender told the court that on Tuesday section 34 (1) of the Immigration Act was inconsistent with the Constitution because it failed to provide for automatic judicial oversight.

He said the section did not trigger an automatic duty to bring the suspected illegal foreigner before the court within 48 hours.

This is despite the Constitution stating that everybody who is arrested for allegedly committing an offence has a right to be brought before the court as soon as is reasonably possible‚ but not later than 48 hours after the arrest‚ Budlender said.

The Constitution also provides that everyone who is detained has the right to challenge the lawfulness of the detention in person before a court.

“One is dealing with people who are among the most vulnerable in our society with no political or social influence over the laws that govern them‚” Budlender said.

However‚ advocate for the home affairs department Paul Kennedy SC said the right to challenge the detention did not apply to detainees who were arrested for the purpose of deportation.

Kennedy said people who were detained as illegal foreigners should not be viewed as suspected criminals.

Chief Justice Mogoeng Mogoeng asked Kennedy why suspected illegal immigrants should be excluded from constitutional protections that applied to other suspected criminals.

Kennedy replied that illegal immigrants were dealt with in a different way.

Judge Johan Froneman asked Kennedy why suspected illegal immigrants should be treated worse than people accused of criminal conduct.

“You should not equate them with the criminally accused. They should not be regarded as accused persons‚” Kennedy said.

The court reserved judgment.

– TMG Digital



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