Kamini Padayachee
kamini.padayachee@inl.co.za
THE Home Affairs Department is being challenged over an immigration law which is being used to summarily arrest and deport asylum seekers whose applications to remain in the country have been turned down.
ProBono.Org, a non-profit organisation which facilitates the provision of free legal services, said the department in Durban had stopped allowing asylum seekers 30 days to leave the country of their own accord, as was previously the practice. These were people whose applications for asylum had been turned down by the refugee appeal board.
However, Home Affairs spokesman Ronnie Mamoepa said the department still followed the 30-day grace period.
ProBono.Org said that it had taken on the case of Democratic Republic of Congo national, Sebastian Mamba, who was arrested on November 23 after his application was turned down.
“He had gone to the Home Affairs office to get… documents, but was arrested and imprisoned… pending deportation. There were… other foreign nationals who were arrested in a similar manner and deported in November.
“This policy has no regard for the fate of the asylum seeker’s wife and children, and does not take into account the life that an asylum seeker may have established here over a number of years,” the organisation said.
Law firm Hughes Madondo Incorporated and advocate Ishan Patel, who had taken on the Mamba case at ProBono.Org’s request, brought an urgent application against Home Affairs Minister Nkosazana Dlamini-Zuma in the Durban High Court and, last week, Judge Dhaya Pillay ordered Mamba’s immediate release. The department was also interdicted from arresting him.
Further, the court ordered that Mamba be given a permit to remain in SA pending the outcome of a review of his asylum application. The application was not opposed by the Home Affairs Department.
Mamba, who has been in SA for six years, said he had gone to Home Affairs on November 21 to have his permit renewed, but had been told to return two days later.
“On November 23, when I got to the office, they told me and about 20 other foreign nationals that we were under arrest and we were going to be deported.”
As part of the application, ProBono.Org also challenged the use of Section 34(1) of the Immigration Act 13 of 2002 by the department to effect the arrests, which has also been filed in court.
The legislation allows for the arrest and detention of an “illegal foreigner” without a warrant pending deportation, and the arrested person does not have to be brought before a court.
According to papers filed with the court, ProBono.Org said the legislation was being used incorrectly by the department as asylum seekers still had other legal avenues to pursue if the Refugee Appeals Board refused their applications. They could only be deported once these options had been exhausted, the organisation said.
The case is expected to be heard shortly.
