South African Immigration Arrest and Detention Procedures
The South African Immigration Act gives officials broad powers to arrest foreign nationals suspected of being in contravention of the Act. Contraventions for which foreign nationals are most often arrested, include:
- Not being in possession of a visa or permit
- Being in possession of an expired visa or permit
- Being in possession of a visa or permit which is suspected to be forged or fake
- Contravening the conditions of a visa or permit by studying, working or running a business
South Africa prides itself on being a premier holiday and up-and-coming investment destination and 99.9% of foreign visitors will only experience warm smiles whilst in the country. For these reasons, most visitors will never be asked to produce their passport, permit or visa without good reason. However, immigration inspectorate officials have the power to call on any foreign national to prove their right to be in the country at any time. When so called upon, the individual must be able to do so “on the spot”. Any irrational or unreasonable exercise of this power by immigration officials will never survive proper Constitutional scrutiny, but visitors are advised to take heed of the following advice when they find themselves in a spot of bother.
Why might you be arrested?
Immigration officials do not need a warrant to arrest someone, but will usually only act once they have good cause to do so. Much has been written on what constitutes “good cause” in criminal law, but immigration law is not criminal law and the threshold for good cause to make an arrest is much lower in immigration law than in general criminal law. The following behaviour may result in problems for visitors:
- Committing a criminal offence
- Overstaying a visa or permit
- Being combative or abusive towards immigration officials
- Inadvertently admitting to contravening the Immigration Act
- Working while on a visitor’s or study permit, studying while on a visitor’s or work permit, etc
- Keep a copy of your passport and permit on you at all times.
- Decide beforehand who you would phone if arrested
Give that person:
- A copy of your passport and permit
- The contact details for your family back home
- The ability to access funds on your behalf, should it be necessary
Never, ever be aggressive or abusive towards immigration officials. No matter what.
What to do if you’ve been arrested?
As aforementioned, DO NOT BE AGGRESSIVE OR ABUSIVE. Being aggressive or abusive towards the officials will only result in a longer detention. Once arrested, the suspect will be taken to the nearest police station, charged and locked up. Many police stations keep Immigration Act offenders separate from general offenders.
Detainees are advised to keep the following in mind:
- Keep a copy of the passport and visa or permit elsewhere so that it can be given to the immigration attorney upon arrival
- Offenders may be detained for up to 30 calendar days without a warrant
- An attorney may be able to secure an immediate release, but this cannot be guaranteed
- If a court then does not confirm the detention within 48 hours, the detainee must be released
- If released, the detainee may be asked to prove why he or she shouldn’t be deported
- The detainee may also be asked to post security for the costs of being deported
Emergency Help for Immigration Detentions
083 2676 993 or Contact Us