Human rights organisations have asked parliament to amend the Immigration Amendment Bill to ensure migrant children are protected from the laws that regulate deportation of illegal foreigners.
The parliament portfolio committee on home affairs received written and oral submissions on Tuesday from civil and human rights organisations regarding the bill.
The bill addresses legal process that should be followed in deporting undocumented foreign nationals.
The department drafted the bill last year to amend the Immigration Act after two Constitutional Court judgments found that the country’s immigration laws violated the constitution.
The bill provides that arrested foreigners should be informed of their rights “when possible” in a language they understand.
This includes the right to be notified in writing of the decision to deport, the right to appeal such a decision and appear before a court in person, within 48 hours of the time of arrest.
Though the human rights organisations welcomed the bill, they said the amendments were silent about children of immigrants and stateless people.
James Chapman, from nonprofit organisation Scalabrini Centre in Cape Town, proposed for parliament to amend the bill to say illegal foreigners’ children under 18 years should not be arrested for lack of documentation.
The bill does not stipulate age.
“The omission of age considerations in the section [bill] should be corrected and give voice to the rights to the child and the moratorium on immigration detention of children,” Chapman said.
“Any immigration detention case involving children should instead be referred to the department of social development or relevant child protection organisation for assistance.”
The state should not detain and deport refugees (including asylum seekers and those seeking asylum), stateless people, or human trafficking survivors, Chapman said.
Having flagged concerns, he said the proposed bill was generally in line with Constitutional Court’s directives.
Nyeleti Baloyi, from Lawyers for Human Rights, said while the bill introduced the interests of justice criterion, which serves as guidance within which immigration officers and the courts may exercise detention powers, it was not detailed and fails to meet constitutional obligations.
“The ‘interests of justice’ must be meticulously defined for immigration detention. The Constitutional Court requires explicit guidelines for justifiable limitations on rights,” she said.
“The bill’s failure to provide this, especially regarding discretionary detention powers, is a flaw.”
Former public protector Thuli Madonsela, now head of the Centre for Social Justice at Stellenbosch University, raised the concern that the bill did not consider South Africans without identity documents.
“It is an illusion to think that our immigration laws deal with foreigners only, they deal with anybody who is suspected to be an illegal immigrant,” she said.
“The minister of home affairs [Leon Schreiber] recently responded to a young person on social media who said for many years she had not been able to get an ID because her mother died. In the current law, she would be detained and treated as a suspected illegal foreigner until she can prove her nationality.”
Mandonsela said the bill should consider that not all who can be arrested could afford legal representation.
She suggested a new clause to state: “When considering the interest of justice, the immigration officer should take into account risk to the public, flight risk, access to legal representation, community ties and international human rights obligation.”
ANC head of policy and research Fébé Potgieter-Gqubule rejected proposals to expand the scope of the bill saying the bill had been delayed long enough since the Constitutional Court made its order in 2018.
“We should not try to expand the scope of what the [Constitutional Court] has asked parliament to do. Parliament has to finalise this matter, given the delays in passing this amendment as ordered by the [Constitutional Court].”
Parliament has not yet approved the amendments made by the department and will consider the public comments.
Parliament committee content adviser Adam Salmon said there had been “significant public interest” in the bill with 378 submissions from individuals and civil society groups.
“The 350 pages of submissions reflect a broad range of perspectives, including those advocating for stricter immigration control, stronger enforcement mechanisms, as well as those raising concerns about human rights, administrative efficiency and constitutional compliance,” Salmon said.
Some of the MPs were unhappy with amendments proposed by the representatives from human rights organisations. The MPs also misunderstood the bill to be related to criminal law, not civil detention for being an illegal immigrant.
In 2021, Stats SA statistician-general Risenga Maluleke estimated there were 3.95-million foreign-born people in SA in that year.
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