The Immigration Act: Violations and Gaps Resulting in Human Rights Abuses The Immigration Act, as amended by the Immigration Amendment Act, defines a “foreigner” as an individual who is not a citizen and an “illegal foreigner” to mean a foreigner who is in South Africa in contravention of the Act.82 Section 34 of the Immigration Act, as amended by the Immigration Amendment Act, governs the procedures for the arrest, deportation and detention of “illegal foreigners”. Lawyers for Human Rights challenged the constitutionality of parts of section 34 in the Pretoria High Court,83 and sought confirmation in the Constitutional Court of the High Court’s order with respect to those provisions that the High Court ruled to be unconstitutional.84 Despite these constitutional challenges, section 34 remains intact. Human Rights Watch found violations of the procedures for the arrest, detention, and deportation of “illegal foreigners” by police and immigration officials. These violations have been documented in other research and must be understood as widespread and systematic rather than idiosyncratic and anecdotal.85 Human Rights Watch also became aware of legal gaps in the Immigration Act and the Immigration Amendment Act, arising from the administration of the corporate permit provisions and the arrest, detention, and deportation process. These legal violations and gaps, and where applicable, their consequences for the human rights of foreign migrants as provided for in the constitution, are identified below. 82 Immigration Act, as amended by Immigration Amendment Act, section 1. Lawyers for Human Rights and Another v Minister of Home Affairs and Another 2003(8)BCLR 891(T). Constitutional Court of South Africa. Lawyers for Human Rights v Minister of Home Affairs, Case CCT 18/03. The Constitutional Court, para. 45, found only section 34(8) to be inconsistent with the constitution, and “in a very limited way.” The Court ordered that section 34(8), which deals with foreign nationals who enter South Africa illegally by air or sea, be read with the following sentence: “A person detained in terms of this section may not be held in detention for longer than 30 calendar days without an order of a court which may extend the detention for an additional period not exceeding 90 calendar days on reasonable grounds.” That is, the Court ordered that section 34(8) be read in conjunction with section 34(1)(d). 85 Landau, Ramjathan-Keogh, and Singh, “Xenophobia in South Africa and Problems Related To It”; Forced Migration Studies Programme et al., “Crossing Borders, Accessing Rights, and Detention”; and Human Rights Watch, “Living on the Margins: Inadequate Protection for Refugees and Asylum Seekers in Johannesburg,” A Human Rights Watch Report, vol. 17, No.15(A), November 2005, http://hrw.org/reports/2005/southafrica1105/southafrica1105.pdf. For similar abuses under the Aliens Control Act, see Human Rights Watch, “‘Prohibited Persons’: Abuse of Undocumented Migrants, Asylum-Seekers, and Refugees in South Africa,” A Human Rights Watch Report, March 1998, http://www.hrw.org/reports98/sareport. 83 84 HUMAN RIGHTS WATCH VOLUME 18, NO. 6(A) 22