Entry Denied at Port of Entry- What are your rights
in South Africa?
Sa Migration – 31 May 2022
South Africa is the destination of choice for many people
from the continent and the world. As a result of this the country’s ports
receive millions of travellers annually entering for various reasons. However,
on occasion a traveller is refused entry having been deemed ineligible for
entry into the Republic for one or more reasons. Often persons who find
themselves in this position are summarily sent back to their country of
embarkation without being informed of their rights if any under our law and how
to exercise these rights. In this week’s piece we will explore what the
Immigration Act provides for persons in this position as well as what our
courts have concluded in cases involving persons who have been refused entry.
Section 8(1) of the Immigration Act regulates what
happens to a person who has been refused entry at a port of entry. Section 8(1)
provides “An immigration officer who refuses entry to any person or finds any
person to be an illegal foreigner shall inform that person on the prescribed
form that he or she may in writing request the Minister to review that decision
and-
1. a) If he or she arrived by means of a conveyance
which is on point of departing and is not call at any other port of entry in
the Republic, that request shall without delay be submitted to the minister; or
2. b) in any other case than the one provided for
in paragraph (a), that request shall be submitted to the minister within three
days after that decision.
Two key rights are expressed in this section, the
first one is the right to be notified of the reasons for being denied entry and
secondly the right to make an appeal to the Minister to review the decision.
The Act also makes provision for a time frame of when the appeal should be made
in these two instances when entry has been refused. The first arises when the
conveyance is set to depart and will not call upon another port of entry in
which case that appeal must be made immediately. The second instance is when
conveyance is not at the point of departing, in which case the appeal must be
made within three days from the act of being refused entry.
In section 8(2) the Immigration Act goes on to
provide that if any person is refused entry or found to be an illegal foreigner
as contemplated above, who has requested a review of such decision but is on a conveyance
that is set to depart as contemplated in section 8(1)(a) shall depart on that
conveyance and shall await the outcome of the review outside the republic. In a
case arising under section 8(1)(b) , where the conveyance is not at the point
of departure and the person has lodged an appeal with Minster the Act provides
that this person Shall not be removed from the republic before the Minister has
confirmed the relevant decision. Here is where the problems tend to begin,
firstly most are not informed of their rights as required by the Act but where
they are informed there seems to be a concerted effort by the Immigration
officials to secure the immediate removal of the person notwithstanding the
protections afforded to the person.
The right to review and to reasons are hallmarks of
our administrative law and are enshrined in the section 33 of the Constitution
which vests everyone who is at the receiving end of an adverse decision by the
state the right to appeal that decision and the demands that the public
official must provide reasons of their decision in writing. Our law recognises
that the right to Just administrative action has two key aspects, the first one
being the substantive aspect encapsulated in the statement the administrative
action must be lawful or put differently it must be in line with an empowering
legislation and the constitution. The second relates to the procedural
fairness, the conduct or act must conform to procedural prescripts of the Act.
Meaning where the Act says the official must inform the person by issuing a
form 1, the failure to issue that form renders the action unlawful.
In the past when Home Affairs has been challenged
on actions its officials have taken to deny a person entry they have put
forward two principal arguments, first that have stated that once they have
denied some one entry that person is no longer their responsibility but that of
the conveyance as contemplated in section 35(10) of the Immigration Act. The
have also argued that technically persons in the arrivals area at the port of
entry who have not been formally admitted into the republic are not in the
republic and therefore not subject to the protections afforded to them by the
Act and the constitution. A final argument has been that in cases where a person
has lodged an appeal in terms section 8(2)(b) wherein the Act provides that
person shall not be removed from the republic, that person is not deprived if
freedom as contemplated in section 12 of the constitution while also arguing
they cannot be allowed to await the Ministers decision in the republic as doing
so would be detrimental to their immigration enforcement efforts.
All these arguments have been dismissed out of hand
by the courts. In Lawyers for Human rights & another// the Minster of t
Home Affairs & another 2004 (4) SA 125 (CC) the Constitutional court held
that “The denial of these rights to human beings who are physically inside the
country at sea or airports merely because they have not entered South Africa
formally would constitute a section of the values underlying our constitution”
In other Judgments in the SCA and High court this
argument was dismissed as pure sophistry which ought to be disregarded offhand
and that our courts would have jurisdiction to intervene in these matters in
the same manner as they would be expected to intervene in a case involving the
murder of a person at a port or entry. In Abdi V the Minister of Home Affairs
(734/10) 2011 ZASCA 2, the Supreme court of Appeal found that Home Affairs
remained the responsible authority when a person has been refused entry and
they do not at any point abdicate that responsibility to the conveyance
As to whether a court can order the release of an
inadmissible foreigner from an inadmissible faculty pending the outcome of a
review of the decision the courts appear divided with judgements for and
against the release. In Chen v the Director General of Home Affairs 2014 ZAWCHC
181, the court having assessed the conditions of the holding facilities at the
airport concluded that these holding facilities were in fact detention
facilities that had the effect of violating a person’s fundamental right to
dignity and the right to freedom and security of person and her right to
freedom of movement. The court went on to order the release of the person
pending the minister’s decision but left it to the DHA to determine the
conditions of the persons release.
As a final note for the airline industry who often
find themselves caught between a rock and a hard place in these situations. It
is worth noting the judgment of the High Court in Lin & Another v the
Minster of Home Affairs & others. The court made several adverse findings
against the airline in that case including punitive orders for contempt of
court against certain employees of the airline. The airline had argued that
their function was to merely carry out the orders of the Home Affairs in this
case however the court found them wanting and essentially stating that where
the airline has been advised of the persons rights it has a duty to ensure that
they do not participate in the violation of that persons rights by observing
the letter of the law and not blindly follow the instruction of DHA which often
have been found to be unlawful.
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