The National Assembly has successfully passed the Immigration Amendment Bill, which was introduced in Parliament on 5 April 2024 by the Minister of Home Affairs. This legislation aims to amend South Africa’s Immigration Act to align it with the Constitution by addressing various loopholes and safeguarding the rights of immigrants against unfair detention.
These amendments follow a Constitutional Court ruling in 2017, which found certain provisions of the Immigration Act inconsistent with the Constitution. Specifically, the Court determined that section 34(1)(b) was unconstitutional because it did not mandate an automatic judicial review within 30 calendar days of detention.
Additionally, the Court highlighted that detainees were not informed of their rights, particularly the right to legal representation. A supplementary ruling delivered on 30 October 2023 stipulated that undocumented immigrants could only be detained if it served the interests of justice, and they must be presented before a court within 48 hours of detention.
The Constitutional Court has mandated that the Act be amended within 24 months. The bill will next be sent to the National Council of Provinces for approval.
Closing Loopholes And Cutting Costs
The Democratic Alliance, led by Minister Leon Schreiber, asserts that these amendments are essential for consistent application of the law and for closing existing loopholes. The party pointed out that the previous approach to detaining or releasing undocumented immigrants was inconsistent and prone to abuse, often resulting in protracted legal battles.
The new legislation is designed to establish clear rules, ensuring that immigration officials and magistrates make decisions based on standardised criteria rather than discretion. This change aims to protect individuals from unjust detention while facilitating faster deportations that are less likely to be contested.
The DA also revealed that it costs R427 per day to detain an undocumented immigrant, and prolonged cases significantly increase these expenses. The amendments will reposition Magistrate courts at the heart of the process, requiring magistrate approval for any detention and mandating court reviews for extended stays, thereby reinforcing human rights protections and restoring public confidence in the system.
Furthermore, the changes introduce specific safeguards for children, who can no longer be treated simply as “illegal immigrants.” Instead, child immigrants must be referred to child protection services, and detention will only occur as a last resort and under judicial oversight.
Overall, these changes are viewed as a crucial step toward protecting vulnerable children and ensuring that their best interests are prioritised, while also strengthening the legal framework for immigration enforcement.