The South African Immigration Act No.13 of 2002 provides immigration officials with rather wide-ranging powers when it comes to the arrest, detention and deportation of illegal foreigners. In some instances, these powers have been abused as displayed in the case of Edward Samotse. Thus it has become incredibly important for foreigners to familiarise themselves with the law and their rights. Section 34 of the Act specifically deals with this issue.
Are you at risk of being detained or deported from South Africa
In terms of this section, an immigration officer is entitled to arrest an illegal foreigner, without the need for a warrant, and deport or detain said foreigner. In doing so, the immigration official must follow certain procedures.
The foreigner concerned:
- Must be notified in writing on the prescribed form (Form 29) of the decision to deport him or her, and the subsequent right to appeal this decision;
- May request that his or her detention for the purpose of deportation be confirmed by warrant of a Court. If such warrant is then not issued within 48 hours of the request, the foreigner shall be released immediately;
- Shall be advised at the time of the arrest or as soon as practicably possible thereafter of the above rights, and in a language he or she understands;
- May not be held in detention for more than 30 calendar days without a warrant of a court. This detention may be extended on good and reasonable grounds for a period not exceeding 90 days;
- Shall be held in detention in compliance with the standards protecting his or her human rights and dignity.
In the event that a foreigner is arrested for purposes other than deportation, he or she may not be detained for a period in excess of 48 hours. The Act also makes provision for the payment of a deposit by a foreigner subject to deportation in order to defray the whole or part of the costs of his or her deportation, detention, maintenance, and custody. If said foreigner is ordered by an immigration official to make payment of the deposit and fails to do so, he or she shall be guilty of an offence and liable for a fine or imprisonment.
What to do if detained in South Africa
If you find yourself in a position where you suspect your rights are being infringed as a foreigner, it is advisable to contact a firm of attorneys in order to gain clarity. It goes without saying that officials are well within their rights to deport illegal foreigners, provided they do so through the correct channels. If you have been deported and banned from South Africa, but wish to fight the decision, you can do so by way of a visa overstay appeal for South Africa. For further details, do not hesitate to contact our offices. .
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