In Search of Alternatives to Pre-emptive Immigration Detention (or not): a Review of Recent South African Case Law

Abstract

The power to arrest, detain and deport illegal foreigners remains the foundation of immigration control in post-apartheid South Africa. This power is regulated by section 34 of the Immigration Act 13 of 2002. A clear understanding of the scope and limits of this far-reaching power is essential for a human rights based approach to immigration. In an attempt to contribute to such an understanding, this essay explores whether section 34 authorises the pre-emptive arrest and detention of illegal foreigners, even before their status can be conclusively determined. Claims that it does often rests on the view that there are no effective alternatives available to immigration detention. However, international law recognises detentionless deportations, or the so-called Community Assessment and Placement model, as best practice under a number of different international human rights regimes. This international law approach contrasts sharply with the early or pre-emptive detention regime of the Department of Home Affairs in South Africa. A series of recent judgments by the Supreme Court of Appeal provides an opportunity to re-evaluate the lawfulness of this pre-emptive detention policy. After a close reading of these cases, this essay concludes that these judgments are best read against the grain as inaugurating a process of law reform that will hopefully soon culminate in the constructive abolition of pre-emptive immigration detention in South Africa.