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[2011] ZAGPPHC 29
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Zimbabwe Exiles Forum and Others v Minister of Home Affairs and Others (27294/2008) [2011] ZAGPPHC 29 (17 February 2011)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG. PRETORIA)
DATE:17/02/2011
CASE
NO: 27294/2008
In
the matter between:
ZIMBABWE
EXILES FORUM AND
34
OTHERS
..................................................................................
APPLICANT
And
MINISTER
OF HOME AFFAIRS
.................................................
1
st
RESPONDENT
DIRECTOR-GENERAL:
HOME AFFAIRS
…...........................
2
ND
RESPONDENT
BOSASA
(PTY) LTD T/ALINDELA HOLDING
FACILITY
.......................................................................................
3
rd
RESPONDENT
JUDGMENT
KOLLAPEN.
AJ
Introduction
and Background
[1]
The movement of people within and across the borders has always been
part of the human condition as people leave their countries
of origin
either in search of a better life or when compelled to do so in order
to flee persecution or harm to themselves and their
families. These
movements of people have and continue to pose significant
challenges
for nation States in how to effectively and adequately manage both
the movement of such persons as well as the consequences
that flow
from it.
[2] International law as well as most
domestic systems recognise two categories of persons in this regard.
They are broadly termed
migrants and secondly asylum seekers and
refugees. Different legal regimes apply to the two broad categories
of person. In respect
of the former it is logically seen as a matter
of national sovereignty for the State to determine who should enter
its borders
and under what terms and conditions while in respect of
the latter category international law creates an obligation on the
part
of State to provide refuge and asylum to those who flee
persecution in their country of origin.
[3] In South Africa this distinction
is also recognised and the
Immigration Act 13 of 2002
was enacted to
provide for the regulation of admission of persons to their residence
in and their departure from the Republic while
the
Refugees Act 130
of 1998
was enacted to give effect within the Republic of South
Africa to the relevant international legal instruments, principles
and
standards relating to refugees and their reception into South
Africa as well as the rights and obligations that flow from the
granting
of such status.
[4] While different legal regimes
apply to migrants and refugees in practice there exists a
relationship between these legal regimes
as people may be subject to
both regimes either simultaneously or consecutively. It is not as if
the two legal regimes exist separately
and insulated from each other.
In practice a person may well gravitate from one regime to the
other. This application involves
the interpretation of
Immigration
Act as
well as the
Refugees Act as
well as their relationship to each
other.
The Parties
[5] The application is brought by the
Zimbabwe Exiles Forum a non profit organisation registered in the
Republic of South Africa
as such with the broad objective of
providing social, legal and economic assistance to Zimbabwean Exiles
and refugees as well as
monitoring the violations of rights of those
in exile through research monitoring and litigation. The second to
the 34
th
applicants are all Zimbabwean nationals who were in South Africa and
who were arrested at a demonstration held in Pretoria outside
the
Chinese Embassy. The first respondent is the Minister of Home
Affairs and the second respondent the Director General
of the
Department of Home Affairs.
THE PROCEEDINGS BROUGHT AND THE
RELIEF SOUGHT.
[6] The relief sought in respect of
part A of the notice of motion has been dealt with and disposed of
and in the main related to
securing the release of the second to the
34
th
applicants from custody and to the granting of temporary asylum
seeker permits to them in accordance with
section 22(1)
of the
Refugees Act.
[7
] The relief sought in part B of the
notice of motion related to certain procedures and practises under
which the second to the
34
th
applicants were arrested, processed dealt, with and detained.
[8] The applicant seek an order in the
following terms:
1. Declaring the failure of the First
and Second Respondents to issue
section 22
permits to asylum seekers
upon their application, whether the practice is a policy, directive
or decision made on a case by case
basis, as unlawful and
inconsistent with the
Refugees Act 130 of 1998
;
2. Declaring the failure of the First
and Second Respondents to verify the identity and status of detainees
who have informed the
Respondents that they have applied for asylum
and not yet received their permits, in order for them to be issued
with
section 22
permits and released, as unlawful and inconsistent
with the
Refugees Act 130 of 1998
read with the
Immigration Act 13 of
2002
whether this practice is a policy, directive or decision made on
a case by case basis;
3. Declaring that the practice and/or
policy and/or directive of the respondents wherein asylum seekers who
make asylum applications
whilst in immigration detention must remain
in detention pending the outcome of that application us unlawful,
inconsistent with
the Constitution and invalid;
4. Declaring that the practice and/or
policy and/or directive and/or decision of the respondents wherein
asylum seekers, whose applications
for asylum are rejected as
unfounded and who indicate an intention to appeal the decision to
reject their applications in terms
of Chapter 4 of the
Refugees Act,
are
to be detained pending the finalisation of that appeal process as
unlawful, inconsistent with the Constitution and invalid;
5. Declaring that the practice and/or
policy and/or directive and/or decision of the respondents wherein
detainees, whose detention
under the
Immigration Act becomes
unlawful
by virtue of the expiration of the 30 day period referred to in
section 34(1)(d)
of the
Immigration Act, are
released and summarily
rearrested as unlawful, inconsistent with the Constitution and
invalid;
6. Directing that the First
Respondent, and any other respondent who opposes the application, pay
the costs of this application
on an Attorney – Client scale.
Discussion
[9] The legal regimes that apply to
migrants asylum seekers and refugees have their foundations deeply
rooted within the constitution
and in particular within the chapter
of the Bill of Rights. Given that what is often at stake is the
liberty of a individual,
their freedom and security and their right
to just administrative action including their right to seek and
receive the protection
of the State in appropriate circumstances it
is therefore essential that in all such matters the policy and
practice followed by
the State and its organs are consistent with
both the values of the Constitution and the human rights imperative
set out therein.
[10] For the purposes of this
application the right to dignity, the right to freedom and security,
the right to movement and the
right to just administrative action all
are relevant.
[11] Section 7(2) provides that “the
State must respect protect and promote and fulfil the rights in the
Bill of Rights”
while section 8(1) provides that “the
Bill of Rights applies to all law and binds the legislature, the
executive, the judiciary
and organs of State”.
[12] It must accordingly follow that
any policy practice directive or conduct which is inconsistent with
the constitution and/or
undermines the constitution and its values
falls to be declared inconsistent as such and in terms of section
172(1) of the Constitution
the court has both the power and the
responsibility when deciding a constitutional matter within its power
to “declare that
any law or conduct that is inconsistent with
the constitution is invalid to the extent of its inconsistency”.
[13] On that basis and of course
provided that the evidential burden is discharged in demonstrating
conduct in the form of a practice
policy directive or a decision that
is unlawful or inconsistent with the constitution then the applicants
would in the ordinary
course be entitled to the relief they seek.
[14] It is also so that a court
confronted with such inconsistencies has no discretion but is
enjoined to declare such offending
conduct invalid to the extent of
its inconsistency.
THE FAILURE TO ISSUE SECTION 22
PERMITS:
The applicant seeks an order: -
“Declaring the failure of the
first and second respondents to issue section 22 permits to asylum
seekers upon their application,
whether the practice is a policy,
directive or decision made on a case by case basis, as unlawful and
inconsistent with the
Refugees Act 130 of 1998
.
Section 21
of the
Refugees Act
provides
for the procedure to be followed in making application for
asylum and in broad terms provides that such application shall be
made
in person to a refugee reception officer at any refugee
reception office. It further provides that such a refugee reception
officer
must
accept the application from the applicant ensure that it is properly
completed and may conduct such enquiry in order to verify
the
information furnished in the application. The section further
provides for the refugee reception officer to refer such application
to a refugee status determination officer to deal with further.
[15]
Section 22
of the Act provides
that the refugee reception officer
must
,
pending the outcome of an application in terms of
section 21(1)
,
issue to the applicant an asylum seeker permit in the prescribed form
allowing the applicant to sojourn in the Republic temporarily.
[16] It is clear and that provided
that an applicant for asylum has complied with the formal
requirements of
section 21(1)
that there is in terms of
section 22
of
the Act an obligation on the refugee reception officer to issue an
asylum seeker permit. The use of the word must in the body
of
section 22
makes the issue of such a permit peremptory. A refugee
reception officer as no discretion in this regard.
[17] A related but relevant issue is
precisely when such permit must be issued. It is clear that the
issue of a
section 22(1)
permit is significant in the sequence of the
process by which an application for asylum is made. Its effect is to
allow the applicant
temporary sojourn in the Republic as well as to
recognise the applicant as one who has in terms of the Act submitted
an application
for asylum.
[18] Accordingly the phrase “must
issue” having regard to the context and the purpose of the
permit can only mean that
it must be issued immediately or at the
very least without any undue delay.
[19] To suggest otherwise would be to
undermine the spirit of the
Refugees Act insofar
as it provides
explicit recognition of the application for asylum and is the only
testament that indeed such an application has
been lodged. For an
asylum seeker who may not be possessed of any other documents and who
may have had to flee his or her country
of origin such a permit takes
on an enormous significance in at the very least regularising the
applicant’s sojourn in the
Republic.
[20] While there is nothing in the
wording of
section 22(1)
to suggest that such a permit must be issued
immediately, if one has regard, however, to the architecture of the
Act and to the
protection that asylum seekers are entitled to in
terms of the Act then there can be no other interpretation other than
that provided
an application has been properly made and submitted
that such a permit as provided for in terms of
section 22(1)
should
be issued immediately or at the very least without any undue delay.
[21] The question then to be
determined is whether in the context of this application there has
been a failure by the first and
second respondents to issue such
section 22
permits either immediately or without undue delay.
[22] The respondents concede that due
to increased volumes of people that came through South Africa’s
borders it was unprepared
for the high number of asylum seekers and
was as a result unable to deal sufficiently with the number of asylum
seekers reporting
daily at various refugee centres to apply for
asylum. In this regard it further concedes that the department was
unable to receive
and process applications for asylum and issue
section 22
permits upon application resulting in many asylum seekers
being turned away and thereby being exposed to arrest and detention
by
the departmental immigration branch for violation of immigration
laws.
[23] While it appears from the
respondents’ papers that it has now remedied the administrative
and logistical difficulties
it faced in the past it does not detract
from the fact that it must be evident from the respondent’s own
version that at
the time this application was launched
section 22
permits were not issued immediately or without undue delay.
[24] As I understand it the practice
of not issuing permits upon application may have been due to capacity
constraints and may not
have been a deliberate or premeditated
strategy on the part of the respondents. Notwithstanding such
mitigating factors, there
is nothing on the papers to suggest that
the respondents at the time took all reasonable steps to ensure
maximum compliance with
their constitutional obligations. In this
regard see
S v Jaipal
[2005] ZACC 1
;
2005 4 SA 581
(CC) 56. It is evident that South Africa’s
constitutional framework and the legislation that has been enacted to
support
such a constitutional framework has created the expectation
of high and exacting standards in particular insofar as it is
relevant
to the protection and promotion of the human rights. The
maintenance of such standards often requires considerable public
resources
and it is incumbent upon organs of State to use the
resources they have to their maximum capacity in order to ensure
compliance
with their constitutional obligations.
[25] The consequence of the large
influx of asylum seekers and the inability of the respondents to put
in place adequate measures
to deal with them resulted in a most
unsatisfactory State of affairs conceded to by the respondents where
applicants for asylum
were simply left in limbo unable to access the
relevant offices of the respondent to make application for asylum and
those who
were ultimately able to do so were not in a position to
receive the necessary acknowledgment of their applications for asylum
in
a form of a
section 22
permit to which they were entitled to
either immediately or without undue delay. The consequence of all
this may well have led
to the unnecessary arrest of asylum seekers
under circumstances that could have been avoided.
[26] While one must commend the
measures taken by the respondents in addressing the situation it does
not detract from the fact
that the respondents had in fact allowed a
practice to develop whereby applications for asylum were unduly
delayed simply because
people did not have access to the respondents’
offices alternatively where they were successful in accessing such
offices
had to wait for extended periods for their permits to be
issued with prejudicial consequences. Under the circumstances I am
satisfied
that the applicants have made out a proper case for the
relief sought in respect of this prayer.
[27] In this regard one expresses the
hope that the respondents efforts to improve its capacity will yield
the necessary results
and one is heartened by the stance of the
respondent that it is now in a position to accept and issue
section
22
permits immediately in respect of asylum seekers visiting refugee
reception centres daily.
[28] In my view this undertaking
accords with the interpretation that I have attached to
section 22
which provides that an asylum seeker permit must be issued
immediately or without undue delay. If indeed the respondent has the
capacity to issue such permits immediately then there should be no
problem in this regard and the dispute as to whether such permits
should be issued immediately or not is then rendered academic.
THE FAILURE TO VERIFY THE IDENTITY
AND STATUS OF DETAINEES
The applicant seeks an order:-
“
Declaring the failure of the
First and Second Respondents to verify the identity and status of
detainees who have informed the Respondents
that they have applied
for asylum and not yet received their permits in order for them to be
issued with
section 22
permits and released, as unlawful and
inconsistent with the
Refugees Act 130 of 1998
read with the
Immigration Act 13 of 2002
whether this practice is a policy,
directive or decision made on a case by case basis;”
[29] It is the argument of the second
to the eighteenth applicants that at the time of their arrest they
had already made application
for asylum, that they had not been
issued with the necessary
section 22
permits as provided for in terms
of the Act and that the officials of the respondent had failed to
take measures to verify whether
in fact they had submitted such
applications for asylum as they alleged. The applicants further
argue and provide numerous instances
in the papers that seem to
suggest a consistent practice whereby individuals who have applied
for asylum and who are in possession
of the necessary
section 22
permits face arrest and detention when such permits are expired and
cannot be renewed because of long delays outside refugee reception
offices. It is the applicant’s contention that the failure to
verify the identity and status of detainees as asylum seekers
violates the provisions of the
Refugees Act as
well as the
immigration Act and that the practices outlined in the papers
certainly suggest that this far from being an irregular
occurrence
occurs with frequent regularity to the extent that it could be
classified as constituting a practice.
Section 41
of the Immigration
places an obligation on an immigration officer to take reasonable
steps to assist a person in verifying his
or her identity or status.
The regulations issued in terms of the
Immigration Act attempt
to
unpack this duty in greater detail and provides that the immigration
or police officer shall take the following steps in order
to verify
the identity and status of the person contemplated in
section 41(1)
of the Act:
(a) Access relevant documents that may
be readily available;
(b) Contact relatives or other persons
who could prove such identity and status; and
(c) Access departmental records in
this regard.
[30] It is evident from the reading of
section 41
read together with the regulations that the objective of
the obligation created is to ensure that if someone has a valid claim
as an asylum seeker that the immigration officer or police officer at
the very least has a positive duty to assist such person in
verifying
such claim. The process and the outcome of such verification process
are critical. It may ensure that the liberty and
freedom of such an
individual is not constrained because the verification process may
well establish that the person has applied
for asylum and therefore
it is a duty which has to be accepted with the necessary
responsibility for both its content as well as
its outcome. From the
numerous examples provided in the papers of asylum seekers whose
permits expire through no fault of their
own and then face arrest
without any process by which their status as asylum seekers is
verified it is evident that the numerous
instances do provide
evidence of a practice in this regard. The consequence of such a
practice has been that in many such cases
applicants were able to
access legal representation had to resort to litigation in order to
secure their release. One should not
speculate with regard to what
happens to others who are not fortunate enough to access legal
representation except to say that
in all of the instances referred to
in the paper it was evident that the officials of the respondents did
not discharge the obligations
visited upon them by
section 41
of the
Immigration Act and
in most cases to the prejudice of the individual
involved.
[31] Such a practice would obviously
have the effect of impeding negatively on the freedom and security of
the individual. It would
in most instances have resulted in the
summary detention of an individual under circumstances where
verification may have established
that the person was indeed a
bona
fide
asylum seeker and that
the expiration of the permit was on account of factors beyond the
control of the individual involved but
more particularly the result
of long queues and administrative and logistical difficulties on the
part of the respondents.
[32] 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.
[33] For these reasons I am satisfied
that on the evidence before me the applicants have established a
practice with regard to immigration
officers simply failing to take
the necessary steps to verify and assist applicants in verifying
their identity and status and
that the failure to take such measures
is clearly inconsistent with the provisions of the
Immigration Act,
the
Refugee Act as well as the specific provisions of the
Constitution and the Bill of Rights insofar as they relate to the
freedom
and liberty of the individual, the right to movement and the
right to just administrative action.
[34] For those reasons I am satisfied
that a proper case has been made out for the relief sought in respect
of this prayer.
THE DETENTION OF ASYLUM SEEKERS WHO
APPLY FOR ASYLUM WHILE IN IMMIGRATION DETENTION
The applicant seeks an order: -
“
Declaring that the practice
and/or policy and/or directive of the respondents wherein asylum
seekers who make asylum applications
whilst in immigration detention
must remain in detention pending the outcome of that application as
unlawful, inconsistent with
the Constitution and invalid;
[35] The applicants cite numerous
examples in their papers that suggest that a firm practice has been
established in terms of which
asylum seekers who happen to be in
immigration detention and then apply for asylum continue to remain in
detention pending the
outcome of their applications for asylum. The
applicants further provide instances of a similar practice being put
in place in
respect of asylum seekers who avail themselves of the
appeal procedures in terms of Chapter 4 of the
Refugees Act.
[36
] It is the applicants’
contention that the detention of such asylum seekers is unlawful and
that upon the submission of an
application for asylum in terms of
section 21
of the Act an asylum seeker is entitled in terms of
section 22
of the Act to be issued with an asylum seeker permit and
that once such a permit has been issued the further detention of an
asylum
seeker in terms of the
Immigration Act is
unlawful and
inconsistent with the constitution and invalid as such.
[37] While the respondent has denied
that such a policy exists and has contended that the various claims
with regard to the applicants
in support of its stance that such a
policy does exist is at best generic it would appear that indeed on
the respondents’
own version such a practice does exist and has
been put in place.
[38] In a memorandum dated 14 May 2008
despatched by the Deputy Director of Deportations, Ronney Marhule and
directed
to Mr R Nesengane of the Lindela Holding Facility
the Deputy Director of Deportations relying on the judgment of the
High Court in the matter of
Cormsa
v Minister of Home Affairs
issues a directive as follows:
“
In light of the above, any
practice of releasing foreigners who apply for asylum should be
stopped with immediate effect. The contents
of this memo should be
brought to the attention of all personnel in the office.”
It is evident from the contents of
this memo that officials of the second respondent took the position
that foreigners who were
in immigration detention and then applied
for asylum should not be released.
[39] There is hardly much scope for
the respondents to argue that such a practice did not come into
existence in the light of this
memorandum which is hardly ambiguous
and speaks for itself.
[40] This stance seems to have been
confirmed from the minutes of a meeting held between the Refugee
Ministry Centre and the Director
of Deportations which meeting took
place on 2 July 2008. The minutes of that meeting which
appear in the record at page
579 and 580 suggest that the Refugee
Ministry Centre were informed in the course of that meeting that “we
were informed by
the director of deportations that asylum seekers who
are issued with
section 22
permits form Lindela cannot be released on
that basis until a final outcome of the application from refugee
affairs”. It
must be evident from both the memo as well as the
minutes of the meeting of 2 July 2008 that indeed the
respondent was
of the view that it was entitled to detain asylum
seekers who were in immigration detention when they made their
applications for
asylum pending the outcome of such applications.
[41] The stance contended for by the
applicants seem to be supported by the affidavit of one Albert
Matsaung Deputy Director of
Refugee Affairs in his opposing affidavit
where he makes the submission that a decision to detain such a person
(who has applied
for asylum) in terms of the
Immigration Act is
lawful and further deposes to the fact that the position of the
department was confirmed by the
Cormsa
judgment.
[42] This would suggest that even
prior to the
Cormsa
judgment the stance of the respondent that they were indeed entitled
to detain in immigration detention persons who had elected
to apply
for asylum in terms of the Refugee Act and in broad terms it would
appear that the justification for such detention was
to avoid asylum
seekers abusing the asylum process and in particular persons who only
chose to apply for asylum after being arrested
by immigration
officials. The respondents’ stance appears to have been that
they were entitled to detain such asylum seekers
in detention pending
their status determination in terms of the
Refugees Act. Accordingly
there does not appear to be much factual dispute with regard to the
existence of such a practice of detention pending the determination
of the asylum application.
[43] The legal position in this regard
was initially dealt with in the matter of
Consortium
for Refugees and Migrants in South Africa and Others v The Minister
of Home Affairs and Other
(South Gauteng High Court). MOTLOUNG J ruled that a person who was
in immigration detention and who sought to then apply for asylum
was
not entitled to his unconditional release. In this regard he was of
the view that the refusal by the respondents to release
such persons
from detention was “perfectly in order provided of course all
the other requirements of the
Immigration Act regarding
the legality
or lawfulness of the detention are in place”.
[44] He accordingly took the stance
that the mere submission of an application for asylum in terms of the
Refugees Act the
issue of
section 22
permit did not have the
automatic result that such a person was entitled to his unconditional
release from immigration detention.
[45] Mr Bofilatos for the respondent
argued that the relief sought by the applicant and the interpretation
that the applicant sought
to place on the consequences of the issue
of a
section 22
permit were far reaching and would have the absurd
and unintended result that every person lawfully held in immigration
detention
would be entitled as a matter of right to their automatic
and unconditional release from such detention once they applied for
and
were issued with an asylum seeker permit in terms of
section 22
of the
Refugees Act.
This
would undermine the proper
administration of the
Immigration Act, lead
to wide abuse of the
Refugee Act and would effectively render the institution of
immigration detention ineffective if individuals
were able to effect
a cessation of their detention by simply applying for and being
issued with section 22 permits.
The fact that a section 22 permit was
not determinative of the merits of the asylum application but rather
served as a testament
that such an application was submitted would
have the effect that even individuals in immigration detention who
may never have
intended to apply for asylum would be encouraged to do
so if the consequence of doing so would be their release from
immigration
detention.
The risks and unintended consequences
of such an approach do appear to be substantial.
[46] The applicant on the other hand
sought to rely on the judgment in the matter of
Arse
v Minister of Home Affairs
for the stance. In the
Arse
matter a judgment of the
Supreme Court of Appeal delivered on 12 March 2010 the SCA
had to deal with a similar issue and
in that matter MALAN J
delivering the judgment of the court concluded that “after an
asylum seeker permit has been issued
to him or her the asylum seeker
cannot be regarded as an illegal foreigner as contemplated by the
Immigration Act&rdquo
;. He further expressed the view that the
detention of an asylum seeker can only be effected in terms of the
Refugees Act if
the department has withdrawn an asylum seeker permit
in terms of
section 22(6).
The court further went on to find that
the withdrawal of an asylum seeker permit is thus a jurisdictional
fact for the lawful
detention of the asylum seeker. In addition the
court found that the detention of any person who is in possession of
an asylum
seeker permit in terms of
section 22
would be a
contravention of
section 2
of the
Refugees Act.
The
judgment concluded by alluding to
the concerns of the Department of Home Affairs and the legitimate
interests that the state has
in trying to curb illegal immigration,
but suggested that those concerns could have been addressed by the
imposition of conditions
in terms of
section 22
of the
Refugees Act
and
their effective monitoring.
The judgment disposes of the dispute
that may have existed with regard to the detention of asylum seekers
who apply for asylum
while in immigration detention and would appear
to be authority for the proposition that immigration detention is
incompatible
with the rights an asylum seeker in possession of a
section 22
permit has such a person would be entitled to their
release from immigration detention pending the outcome of the asylum
application
as well as the outcome of any review or appeal in terms
of such application.
[47] It would appear from the judgment
in the
Arse
matter that the submission of an application for asylum and the
subsequent issue of a permit in terms of
section 22
of the
Refugees
Act would
have the effect of bringing to an end the immigration
detention of a person who applies for asylum while in Immigration
detention.
[48] I am obliged to follow the dicta
of the Supreme Court of Appeal in this regard and on that basis and
in view of the fact that
the applicants have established on the facts
that there indeed is a practice of detaining individuals in
immigration detention
who have applied and been issued with
section
22
permits. The applicant would accordingly be entitled to the
relief it seeks in respect of this prayer.
THE DETENTION OF ASYLUM SEEKERS
PENDING THEIR APPEALS
From the aforegoing and in the light
of the
Arse
judgment and provided that an asylum seeker permit has not been
withdrawn by the Minister in terms of
section 22(6)
, the detention of
an asylum seeker who has submitted an appeal against the refusal to
grant asylum would also be inconsistent with
the
Refugees Act.
It would appear that if the
respondent were to seek to justify the detention such an individual
pending an appeal, a precondition
would be the withdrawal of the
asylum seeker permit in terms of
section 22(6).
There hardly appears to be any
dispute that there is indeed a practice of detaining asylum seekers
who are in immigration detention
pending the submission and
adjudication of the appeals and on the basis of the reasoning in the
Arse
matter such detention cannot be countenanced (unless the asylum
seeker permit has been withdrawn) and indeed would be inconsistent
with the
Refugees Act.
The
applicant is according entitled
to the relief it seeks in terms of this prayer.
THE
RELEASE AND RE-ARREST OF PERSONS IN TERMS OF THE
IMMIGRATION ACT
The
applicant seeks an order:
“
Declaring that the practice
and/or policy and/or directive and/or decision of the respondents
wherein detainees, whose detention
under the
Immigration Act becomes
unlawful by virtue of the expiration of the 30 day period referred to
in
section 34(1)(d)
of the
Immigration Act, are
released and
summarily rearrested is unlawful, inconsistent with the Constitution
and invalid;”
Section 34
of the
Immigration Act
provides
that a person may not be held in detention for longer than
30 calendar days without a warrant of a court which on good and
reasonable
grounds may extend such detention for an adequate period
not exceeding 90 calendar days.
[49] The need to ensure judicial
oversight of immigration detention is consistent with the commitment
to the freedom and liberty
of the individual set out in our
constitution and the Bill of Rights. There hardly appears to be any
dispute that there has been
a practice that has developed where
immigration detention is not extended by a warrant of a court but
individuals are released
from detention and immediately thereafter
rearrested. The fourteen applicants in this matter were so released
and so rearrested.
The respondent contends that such release and
re-arrest is not inconsistent with the law and in particular argue
that even if
a person has been released after thirty days such a
person status as an illegal foreigner continues and therefore such a
person
is liable to re-arrest.
[50] With respect such an approach
undermines both the spirit of the
Immigration Act as
well as the
commitment to freedom and liberty. If the respondents are correct in
their interpretation of the law it would simply
mean that a person
could be held virtually indefinitely simply on the authority of an
immigration officer while the
Immigration Act places
an upper limit
of ninety days in respect of any such detention provided of course
that any detention in excess of thirty days is
sanctioned by a court.
It must be evident that any such practice should immediately desist.
The respondents have sufficient means
at their disposal to ensure
that in appropriate cases where they seek to detain a person for a
period longer than thirty days to
approach a court timeously in order
to provide good and reasonable grounds for such detention to be
extended. Under the circumstances
the practice of releasing and
re-arresting is clearly inconsistent with the
Immigration Act and
violates both the constitution as well as the provisions of the Bill
of Rights insofar as it relates to the freedom and security
of the
person. The applicants are accordingly entitled to the relief they
seek in respect of this prayer.
Costs
[51] The costs in respect of Part A
were reserved for determination at the haring of Part B.
[52] In view of the findings I have
made, there is no reason to depart form the ordinary rule that the
costs should follow the result,
this being applicable to Part A of
the application as well.
The applicant has sought costs on the
attorney and client scale and the court has a wide discretion in
granting costs save that
attorney and client costs are not easily
granted. The applicant contends that undue delay by the respondents
in the filing of
papers led to the delay in the hearing of this
matter and that the behaviour of respondents was dilatory and
obstructive.
While I am willing to accept that
there were delays largely occasioned by the respondent that led to
the matter not being finalised
earlier, I am not convinced that such
conduct, unhelpful and dilatory as it may have been is sufficient to
justify a punitive costs
order.
I accordingly make the following
order:-
It is declared that:-
1. The failure of the First and Second
Respondents to issue
section 22
permits to asylum seekers upon their
application, whether the practice is a policy, directive or decision
made on a case by case
basis, is unlawful and inconsistent with the
Refugees Act 130 of 1998
;
2. The failure of the First and Second
Respondents to verify the identity and status of detainees who have
informed the Respondents
that they have applied for asylum and not
yet received their permits, in order for them to be issued with
section 22
permits and released, is unlawful and inconsistent with
the
Refugees Act 130 of 1998
read with the
Immigration Act 13 of 2002
whether this practice is a policy, directive or decision made on a
case by case basis;
3. That the practice and/or policy
and/or directive of the respondents wherein asylum seekers who make
asylum applications whilst
in immigration detention must remain in
detention pending the outcome of that application is unlawful,
inconsistent with the
Refugees Act and
the constitution;
4. That the practice and/or policy
and/or directive and/or decision of the respondents wherein asylum
seekers, whose applications
for asylum are rejected as unfounded and
who indicate an intention to appeal the decision to reject their
applications in terms
of Chapter 4 of the
Refugees Act, are
to be
detained pending the finalisation of that appeal process is unlawful,
inconsistent with the Constitution and invalid;
5. That the practice and/or policy
and/or directive and/or decision of the respondents wherein
detainees, whose detention under
the
Immigration Act becomes
unlawful
by virtue of the expiration of the 30 day period referred to in
section 34(1)(d)
of the
Immigration Act, are
released and summarily
rearrested is unlawful and inconsistent with the
Immigration Act and
the constitution.
6. The first and second respondents
are ordered to pay the costs jointly and severally the one paying the
other to be absolved,
both in respect of Part A and Part B of the
application.
N J KOLLAPEN
JUDGE OF THE NORTH GAUTENG HIGH
COURT
Heard on
:
6/08/2010
For the Applicant
:
Adv K Hofmeyer
Instructed by
:
Lawyers for Human Rights
For the Respondent
:
Adv M Bofilatos
Instructed by
:
State Attorney
Date of Judgment
:
17/02/2011