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SA court says detention of Zim asylum seekers unlawful

SA court says detention of Zim asylum seekers unlawful

By Alex Bell
11 February 2011

A South African court has strongly criticised the Home Affairs Department’s
practice of arresting and detaining asylum seekers, without verifying their
status or allowing them access to the refugee system.

The North Gauteng High court handed down its judgement on Friday in a case
brought forward by the Zimbabwe Exiles Forum (ZEF), ruling that Home Affairs’
treatment of asylum seekers was unconstitutional. The court said that “it is
simply untenable in a constitutional democracy that someone should have to
give up their liberty on account of administrative difficulties or
inefficiencies on the part of an organ of State.”

The case dates back to 2008, when a group of ZEF members was arrested
outside the Chinese embassy in South Africa, during a protest against a
shipment of arms through South African territory to Zimbabwe. The majority
of the 208 Zim nationals that were arrested at the protest had applied for
asylum in South Africa. But all those without documents proving their
asylum-seeking status were subsequently detained at the notorious Lindela
repatriation and detention facility for several months, before a court
ordered their release.

The situation shone a spotlight on the chaos in South Africa’s refugee and
asylum systems, where administrative problems and a massive backlog of
applications have left the systems in disarray. South African Home Affairs
officials have said they do not have the capacity to deal with the numbers
of people approaching them for asylum, leaving thousands of Zim nationals
and other foreigners at risk of prolonged detention and deportation.

As a result, the ZEF has continued its fight in court against the Home
Affairs Department’s unlawful policies and practices in detaining asylum
seekers. The court ruling on Friday confirmed this view and said that the
Department’s practices were not only unconstitutional, but also unlawful and
inconsistent with national and international refugee laws.

This includes the arrest and detention of asylum seekers who are still
waiting for permits, and the prolonged detention of asylum seekers in
immigration detention pending the outcome of permit applications. The court
also ruled that the practice of keeping such asylum seekers in immigration
detention, pending the appeal of unsuccessful permit applications, was also
unlawful and inconsistent with the Constitution. The practice of
re-arresting detainees upon their release after the mandatory 30 detention
period was also deemed unlawful.

“This judgment is consistent with the repeated findings of our courts that
the excessive use of immigration detention by Home Affairs in unlawful,
unconstitutional and a violation of our international obligations,” said
Jacob van Garderen, the National Director of Lawyers for Human Rights.

Van Garderen told SW Radio Africa that the judgement must be carefully and
seriously considered by the Department of Home Affairs, adding that it
should immediately release all asylum seekers who are presently being
detained. He said that Department also needs to revisit its policies on
immigration detention.

“We call on the Minister to carefully peruse the judgment and consider the
practices of immigration officials in terms of South Africa’s international
obligations and the Constitution,” van Garderen said.

The ruling comes as thousands of Zimbabwean nationals wait to hear if their
applications for legal South African permits are successful, with thousands
more set to face deportation in August. The authorities have extended their
moratorium on deportations until August, to allow more time for the Home
Affairs Department to adjudicate on the estimated 270 000 permit
applications it received last year. It is estimated that more than three
million Zim nationals live in South Africa, meaning a large portion of
Zimbabweans in South Africa could be deemed illegal in the coming months.

Migration experts meanwhile have asked the Department of Home Affairs to
clarify what will happen to Zimbabwe asylum seekers when the deportation
moratorium is lifted. Many asylum seekers gave up their asylum applications
to apply for permits instead. But the department has not yet confirmed if
unsuccessful applications can then reapply for asylum. The African Centre
for Migration and Society has warned that “if the applications are rejected,
they will be left undocumented and subject to refoulement, in violation of
international and domestic law.”

“Home Affairs has not stated whether those individuals who were forced to
give up their asylum seeker status to apply for these permits will be
permitted to re-enter the asylum system, or will be subject to deportation
in violation of the non-refoulement principle in international law,” the
group’s Roni Amit said.

The group last month released a report about the Zimbabwe Documentation
Process, and identified several shortcomings affecting the overall
administrative fairness of the process. They report said that “the
deficiencies could affect the fate tens of thousands and they set a poor
precedent for future permitting processes.”


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