Home Affairs unlawfully detaining people: LHR

By Drum Digital
19 September 2012

The home affairs department is unlawfully detaining refugees and migrants and forcing costly court actions to fight for their release, Lawyers for Human Rights (LHR) said on Wednesday.

"The detention of refugees and migrants is carried out in an unlawful manner," said LHR refugee and migrant rights programme head Kaajal Ramjathan-Keogh.

"Despite repeated engagement with [the department] we've encountered a lot of difficulty in releasing people without resorting to the courts," said Ramjathan-Keogh.

She was speaking at the release in Johannesburg of an LHR report, "Monitoring Detention in South Africa".

LHR attorney Thandeka Duma said home affairs "seemed to have dysfunctional internal systems".

Home affairs spokesman Ronnie Mamoepa declined to comment on the report as the department had not yet read it.

"We've not had sight of that report to enable us to comment intelligently," Mamoepa said.

"However, the department remains committed to discharging its mandate within the framework of the law, the Constitution, and the framework of international obligations."

Duma said that under the Refugees Act, asylum seekers were allowed to move freely while their applications were being considered. They were allowed to remain in the country until the entire application process, including appeals, was exhausted.

However, the department in many cases was only using the Immigration Act, which allowed for detaining undocumented migrants, in contravention of previous court rulings.

"Courts ruled [the department] will not read the Immigration Act in isolation," Duma said.

She said the department maintained it was adhering to the law.

"However, this claim is totally contradicted by the evidence in this report and elsewhere," Duma said.

She said attempts to intervene with the department for the release of improperly detained migrants and refugees had been unsuccessful, forcing LHR to seek recourse in the courts.

In the year covered by the report -- February 2011 to March 2012 -- LHR won 18 of its cases and secured the release of 41 improperly detained people, a win rate of about 95 percent.

LHR was also awarded costs -- although less than it believed was owed --and this was a significant cost to the state.

"We are of the view that such costs are a waste of taxpayer money," Duma said.

"The court should hold home affairs' officials personally responsible for court orders that are not followed," Duma said.

She said LHR, along with many other NGOs, had been denied access to immigration facilities, such as the Lindela repatriation centre in Krugersdorp, and was only able to meet clients outside it.

"We are also concerned by the continued lack of independent monitoring in immigration detention facilities."

The SA Human Rights Commission was the only body allowed in and had not released a report on conditions inside Lindela since 2000, she said.

SAHRC legal consultant Sugne Niemann said the organisation had inspected Lindela earlier this year and made regular visits.

The SAHRC provincial office said their visit to Lindela was to investigate complaints lodged against the repatriation centre in the past year and was focused on access to healthcare for detainees.

"We have already begun the preliminary baseline monitoring and should have a preliminary report in place by December," the Gauteng SAHRC said in an e-mailed response to questions.

The SAHRC said each complaint was being treated on its own merits and would have different timelines for outcomes.

"We should, however, mention that we have already made recommendations and requested that the department of home affairs provide us with reports about conditions in Lindela," the organisation said.

"We are concerned that the department has failed to reply to our request... for a response."

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