Africa-Press – South-Africa. The National Assembly has passed the Immigration Amendment Bill, which was introduced in Parliament on 5 April 2024 by the Minister of Home Affairs.
The bill aims to amend South Africa’s Immigration Act to bring it in line with the Constitution by closing various loopholes and protecting the rights of immigrants not to be held unfairly.
The changes come after a Constitutional Court order in 2017 found that certain sections of the Act were inconsistent with the Constitution.
Among other things, the Constitutional Court ruled that section 34(1)(b) of the Immigration Act was unconstitutional, since it did not require an automatic judicial review of a detention before 30 calendar days expire.
In addition, the Constitutional Court noted that section 34(1) does not require that a detainee be informed of the rights set out in section 35(2) of the Constitution, in particular, the right to legal representation by a lawyer of their own choice and to be assigned one at State expense if substantial injustice would otherwise result.
In a supplementary judgment delivered on 30 October 2023, the Constitutional Court ordered that undocumented immigrants may only be detained if it is in the interests of justice and that detainees must be brought before a court within 48 hours.
The Constitutional Court ordered the act to be amended within 24 months. The bill will now be sent to the National Council of Provinces for concurrence.
If passed in the NCOP, it will head to the desk of the president to be signed into law.
Closing loopholes and cutting costs
Home Affairs Minister, Leon Schreiber
According to the Democratic Alliance, whose minister, Leon Schreiber, heads the Department of Home Affairs, the amendments are vital to ensuring that the law is applied consistently and that loopholes are closed.
The party noted that, up until now, decisions about whether to detain or release undocumented immigrants were inconsistent, open to abuse, and often tied up in lengthy court battles.
“The new law will set out clear rules so that immigration officers and magistrates make decisions based on the same standards, not on discretion,” it said.
This will protect people from being held unfairly, while also ensuring that deportations are carried out more swiftly and cannot easily be overturned.
The DA said that it costs R427 per day to detain an illegal foreigner and that cases getting stuck in endless appeals and deportations result in those costs mounting.
The party said the bill would also place Magistrate courts back at the centre of the process.
“Nobody may be detained without a magistrate’s approval, and any longer stays must be reviewed by the courts. This is an important safeguard for human rights and for restoring confidence in the system,” it said.
The amendments also bring protections for children, who may no longer simply be processed as “illegal immigrants”.
Under the changes, child immigrants must be referred to child protection services, and detention will only ever be allowed as a very last resort under court supervision.
“This is a vital step to protect children from exploitation and ensure that their best interests always come first,” the DA said.
“Enforcement is now backed up by a stronger legal foundation that makes sure successes last.”
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