The National Council of Provinces has passed the Immigration Amendment Bill, a measure which seeks to provide clarity over deportation of detained illegal foreign nationals.
The bill, introduced on Wednesday, is an amendment of the Immigration Act of 2002, and a response to two Constitutional Court judgments which declared part of the Immigration Act unconstitutional. The amendment requires a court to decide whether it is in the interest of justice for a detained illegal foreign national to be kept further before deportation is authorised. Any detained illegal foreign national must appear before a court within 48 hours, according to the bill.
The amendment is intended to reduce legal ambiguity, the NCOP says.
The amendments respond directly to Constitutional Court judgments that found aspects of the existing framework inconsistent with parts of the constitutionwhich guarantee the right to freedom and security. By mandating prompt judicial review, parliament has sought to ensure that the process complies with constitutional standards and that administrative discretion is subject to judicial scrutiny.
The bill has been in circulation for several years, following the Constitutional Court’s 2017 ruling in Lawyers for Human Rights v Minister of Home Affairs, which declared sections of the Immigration Act unconstitutional because they permitted detention of foreign nationals without automatic judicial oversight for up to 30 days. Parliament was instructed to amend the act within 24 months, but progress stalled, leading to repeated extensions and further litigation.
In October 2023, the court issued a supplementary judgment reinforcing the need for legislative correction and underscoring that the absence of judicial review undermined constitutional guarantees of liberty and security of the person. .
With the NCOP’s unanimous passage, the bill now moves to President Cyril Ramaphosa. Once signed, it will become law, requiring immediate operational changes.
The department of home affairs must revise detention protocols, ensure detainees are transported to court within the mandated timeframe, and train immigration officers on the new requirements. Courts will need to absorb additional caseloads, with duty rosters and legal aid services expanded to meet the 48-hour review mandate.
The amendments are significant because they shift immigration detention from an administrative process to one under judicial control. In practice, this means that immigration officers can no longer rely solely on administrative authority to detain individuals for deportation. Every detention must be tested against constitutional standards in court, and any extension beyond the initial period requires judicial authorisation.
The changes also clarify detainees’ rights, including access to legal representation, and provide a clear framework for courts to assess whether detention is in the interests of justice.
The bill further stipulates that any extension of detention must be authorised by a court, thereby embedding oversight into the process and reducing the scope for arbitrary decision-making by immigration officials.
Detention powers
The select committee on security and justice processed the bill following a public participation process held from October 3-24.
The department of home affairs indicated that the changes would require adjustments to operational procedures, including the transporting of detainees to court and the recording of detention timelines, but welcomed the clarity provided by the legislation.
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