Entry Denied at Port of Entry-
What are your rights in South Africa?
Sa Migration – 18 April 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.
www.samigration.com
