By Lehlohonolo Lehana.
The National Assembly has passed the Immigration Amendment Bill, which was introduced in Parliament on 5 April 2024 by the Minister of Home Affairs.
The bill aims to amend South Africa’s Immigration Act to bring it in line with the Constitution by closing various loopholes and protecting the rights of immigrants not to be held unfairly.
The changes come after a Constitutional Court order in 2017 found that certain sections of the Act were inconsistent with the Constitution.
Among other things, the Constitutional Court ruled that section 34(1)(b) of the Immigration Act was unconstitutional, since it did not require an automatic judicial review of a detention before 30 calendar days expire.
In addition, the Constitutional Court noted that section 34(1) does not require that a detainee be informed of the rights set out in section 35(2) of the Constitution, in particular, the right to legal representation by a lawyer of their own choice and to be assigned one at State expense if substantial injustice would otherwise result.
The Constitutional Court ordered the act to be amended within 24 months.
“The National Assembly at its plenary sitting today, passed the Immigration Amendment Bill,” which was introduced in parliament on April 5, 2024, by the minister of home affairs, said a statement issued by the parliament late Thursday.
The amendment bill aims to amend South Africa’s current Immigration Act to align it with the Constitution by closing various loopholes and strengthening protections against unfair detention, particularly for vulnerable women and children.
According to the statement, “The newly passed amendment bill requires that someone detained under the Immigration Act appear before a court within 48 hours and not be held for more than 30 days. Meanwhile, children will no longer simply be processed as “illegal immigrants,” but must be referred to child protection services, with detention only as a last resort.
The bill will now be sent to the National Council of Provinces for concurrence.
“The new standards in the bill give greater predictability to the deportation process,” said Home Affairs Minister Leon Schreiber, describing the bill as a “moral recalibration” of immigration policy.
“In addition to upholding the rights of the detained, the introduction of this heightened level of objectivity makes it much harder for any immigration officer to arbitrarily release detainees before they are deported,” he said.
Schreiber also noted that the bill would pave the way for new regulations he plans to introduce for swifter deportation.
“In time, this will make for a stronger immigration enforcement system that reduces legal claims against the department while enhancing our ability to carry out legally compliant deportations more effectively,” he added.