“#ForeignersMustGo versus ‘in favorem libertatis’”: Human rights violations and procedural irregularities in South African immigration detention law.

• Published in: Journal of Human Rights
• Main Authors: Van Hout, MC, Wessels, J
• Format: Article in Journal/Newspaper
• Language: English
• Published: Taylor and Francis Group 2023
• Subjects: HV Social pathology. Social and public welfare. Criminology; K Law (General); KL Asia and Eurasia; Africa; Pacific Area; and Antarctica; HV7231 Criminal Justice Administrations; HV8301 Penology. Prisons. Corrections; Pacific; Antarc*; Antarctica
• Online Access: http://researchonline.ljmu.ac.uk/id/eprint/17837/; https://researchonline.ljmu.ac.uk/id/eprint/17837/15/ForeignersMustGo%20versus%20in%20favorem%20libertatis%20Human%20rights%20violations%20and%20procedural%20irregularities%20in%20South%20African%20immigration%20.pdf; https://doi.org/10.1080/14754835.2023.2170709

In 2021, an estimated 3.95 million foreign nationals resided in South Africa, with no data available on numbers of displaced persons or undocumented migrants, residing without legal or valid immigration status. Surveillance data on immigration detention is scant. We present a socio-legal account of the historical evolution of South African immigration detention regulation in post-apartheid timeframes, with a view to providing a legal realist assessment of the socio and politico-legal dimensions pertinent to human rights assurances of immigration detainees in South Africa. The realist focus is on scrutinising South Africa’s progress in upholding the rights of immigration detainees and illustrating the contemporary complexities in ensuring due process in the (co) application of the Immigration Act (and Refugees Act) explicitly regarding immigration detention processes and practices. We present the applicable international and regional African human rights treaties, domestic regulations and relevant jurisprudence to the rights of immigration detainees in South Africa. The generated realist narrative is cognizant of the contextual forces of migration into South Africa, securitization agendas, violations of basic human rights and due process, and illustrates various gaps in the application of domestic laws, policies and standards of care regarding immigration detention when evaluated against the rule of law.