Court orders refugee's release
2010-01-27 21:07
Johannesburg - The South Gauteng High Court on Wednesday ordered the immediate release of a Burundian asylum seeker currently detained at the Lindela Repatriation Centre, Lawyers for Human Rights (LHR) said.
"The court ruled that the department of home affairs acted unlawfully in detaining the Burundian national for six months... noting that the matter was inherently urgent because it involved individual liberty, the court demanded the applicant's immediate release," the lawyers said in a statement.
Although the applicant stated that his asylum permit expired while he was staying at the Acasia refugee camp following the xenophobic attacks, the department could not verify his status as an asylum seeker.
"The court declared that a detained person has an absolute right not to be deprived of his freedom for one second longer than necessary by an official who cannot justify his detention."
According to the lawyers the court said that the Immigration Act allowed for a maximum period of detention of 120 days and rejected the excuses put forth by the department to justify the excessive detention.
Refugee status not verified
"Although our law does not provide for the mandatory detention of asylum seekers, they are often detained indefinitely because the department of home affairs is unable or unwilling to verify their status, which indicates that proper screening procedures are not taking place at Lindela.
"This ruling clearly establishes that indefinite detention is not authorised under the law and conflicts with the human rights values that are incorporated into the Immigration Act," said Gina Snyman, with the Refugee and Migrant Rights Programme at LHR.
Snyman said the ruling also emphasised the administrative guarantees found in the Immigration Act including the right of a detained foreigner to request that his or her detention be confirmed by a magistrate's court and to be released if the requested confirmation is not received within 48 hours.
He said the judge rejected a contrary interpretation of the Immigration Act that suggested that the 120 day detention period could be extended.
According to Snyman "many of those held at Lindela have been denied the rights guaranteed them by law".
"This ruling makes it clear that Home Affairs cannot continue to detain people without adhering to the administrative procedures found in the law, and cannot continue to disregard the right to administrative justice that the Constitution guarantees to all."
- SAPA