Lawyers for Human Rights is the only non-governmental organisation regularly and consistently working in immigration detention centres around the country. With its twelve-year track record and ongoing direct contact with large numbers of detainees, LHR has unique first-hand information on detainee experiences, conditions of detention, immigration trends and shifts in immigration policy and practice. This is especially important given the lack of other independent monitoring of immigration detention facilities.
The 2012 Detention Report summarises the work of Lawyers for Human Rights’ Immigration Detention Monitoring Unit from February 2011 to March 2012, based on consultations with detainees and litigation brought against the Department of Home Affairs on their behalf. Despite the legal protections afforded to asylum seekers, refugees and other migrants in South Africa, the detention and deportation of foreign nationals continues to be regularly carried out in an unlawful manner. Lawyers for Human Rights has been representing clients in immigration detention for twelve years and has documented disturbing continuities over time in the disregard for the processes and protections built into the law. This is in spite of repeated engagements with the Department of Home Affairs, as the department mandated to carry out and oversee detentions and deportations in terms of the Immigration Act to encourage and support the improvement of immigration detention and deportation systems.
As in previous years, LHR’s detention cases in 2011-2012 have shown a high incidence of unlawful detention, including substantive and procedural contravention of the law. The main substantive concerns are the detention and deportation of asylum seekers and refugees (amounting torefoulement) as well as the denial of opportunities for asylum seekers to register an asylum claim if they have not yet been able to access documentation. There also continue to be cases of the detention of children for purposes of deportation in inappropriate facilities. According to Kaajal Ramjathan-Keogh, Head of the Refugee and Migrant Rights Programme at Lawyers for Human Rights, “There are 84 known cases of children who have been detained in Musina during the first half of this year. This is probably just the tip of the iceberg as deportations take place on an almost daily basis in Musina and it is difficult to keep track of everyone who is detained for deportation. It is highly likely that the number is much higher and that children are being detained and deported on a regular basis”
According to Thandeka Duma an attorney at Lawyers for Human Rights who has been visiting the Lindela Repatriation Facility over the last three months to provide pro bono legal assistance to detainees, “The main procedural concerns remain detention periods beyond the statutory limit of 120 days as well as detentions beyond 30 days without the necessary warrants or court orders.” She added that “Conditions at detention facilities, including at the Lindela Repatriation Centre, shelters detaining children and women, and especially detention facilities in the Musina area near the Zimbabwean border, also remain well below minimum standards.”
This report is intended to inform a range of actors concerned with immigration detention:
1. The Department of Home Affairs, as the Department mandated to manage the process and ensure it is conducted in a lawful manner, can use this report to improve its internal systems of oversight with the aim of increasing efficiency and effectiveness and reducing unnecessary costs and legal challenges;
2. The Human Rights Commission, as the Chapter 9 institution mandated to monitor immigration detention facilities, can use the report to prioritise its own monitoring commitments;
3. Oversight mechanisms within the Government of South Africa, including the Home Affairs Portfolio Committee in Parliament, the Department of Monitoring & Evaluation in the Presidency and the Public Protector, as well as other peer-review mechanisms such as the African Union Peer-Review Mechanism and the United Nations Human Rights Council Universal Periodic Review, can use the report to inform their oversight of substantive and administrative justice by government actors.
Collaboration with the End Child Detention Campaign:
LHR is launching this report as part of the Global Campaign to End Child Immigration Detention, launched on 21 May, is focusing on South Africa during the month of September. South Africa is one of the six states that the Campaign is targeting during 2012. South African law prohibits the detention of children for immigration reasons however, in practice, significant and increasing numbers of children are being detained in police stations and detention facilities in preparation for deportation.
“Governments should not detain children just because they are fleeing abuse, war and poverty or don`t have any papers. Many of these children are unaccompanied minors who have lost their parents or are already traumatized and just want safety” said Jeroen Van Hove, IDC Campaign Coordinator. “No child should be locked up. These children and families do not pose any threat to the community” he added. Of the estimated 200 million migrants who crossed international borders in 2010, around a quarter were children. The campaign calls on States to treat migrant children first and foremost as children and stop detaining them. The liberty of the child is a fundamental human right.
Although official figures are not available, it has been reported that between October and December 2011, 86 children between the ages of 2-17 years were detained and deported to Zimbabwe, which receives the highest number of children who are deported from South Africa. The campaign calls on the Government of South Africa to stop detaining children – not only in law, but also in practice, as well as to stop deporting minors.
