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Immigration Amendment Bill 2023: Addressing Constitutional Court Findings

The Immigration Amendment Bill, 2023 aims to align the Immigration Act, 2002 with the Constitutional Court's ruling on sections 34(1)(b) and (d). The proposed amendments focus on procedures for the arrest, detention, and deportation of illegal foreigners, introducing requirements for court appearances and limiting detention periods. The presentation to the Portfolio Committee on Home Affairs recommends noting the contents for further consideration.

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Immigration Amendment Bill 2023: Addressing Constitutional Court Findings

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  1. Building a secure Home Affairs BRIEFING THE PORTFOLIO COMMITTEE ON HOME AFFAIRS Presentation on the Immigration Amendment Bill, 2023 Presenter: DHA Date: 24 October 2023

  2. Contents 1. Purpose and Background 2. Constitutional Court Findings 3. Proposed amendments to the Immigration Act, 2002 4. Recommendations 2

  3. PURPOSE AND BACKGROUND The purpose of the Immigration Amendment Bill, 2023 (the “Bill”) is • to give effect to the Constitutional Court’s (the “ConCourt”) judgment, delivered on 29 June 2017, in the matter of Lawyers for Human Rights v Minister of Home Affairs and others (CCT 38/16) [2017] ZACC 22; 2017 (10) BCLR 1242 (CC); 2017 (5) SA 480 (CC). The ConCourt ordered that section 34(1)(b) and (d) of the • Immigration Act, 2002 (Act No. 13 of 2002) (the “Act”) was inconsistent with sections 12(1) and 35(2)(d) of the Constitution. 3

  4. PURPOSE AND BACKGROUND ….cont Section 34(1)(b) and (d) of the Immigration Act provides as follows: “[W]ithout the need for a warrant, an immigration officer may arrest an illegal foreigner or cause him or her to be arrested, and shall, irrespective of whether such foreigner is arrested, deport him or her or cause him or her to be deported and may, pending his or her deportation, detain him or her or cause him or her to be detained in a manner and at a place determined by the Director-General, provided that the foreigner concerned— (b) may at any time request any officer attending to him or her that his or her detention for the purpose of deportation be confirmed by warrant of a Court, which, if not issued within 48 hours of such request, shall cause the immediate release of such foreigner; (d) may not be held in detention for longer than 30 calendar days without a warrant of a Court which on good and reasonable grounds may extend such detention for an adequate period not exceeding 90 calendar days;….”. 4

  5. PROPOSED AMENDMENTS Clause 1 of the Bill substitutes in subsection (1) for paragraphs (b) • and provides that any foreigner, arrested for purposes of deportation, must be brought before a court in person, within 48 hours of his or her arrest, for the court to determine whether to confirm his or her detention, after having heard and considered any representations by the immigration officer and the foreigner concerned. 5

  6. PROPOSED AMENDMENTS Clause 1 further amends by substituting in subsection (1) for • paragraphs (d) and provides that foreigners may not be held in detention for longer than 30 calendar days without [a warrant of a Court] appearing in person before a court, which court may, on good and reasonable grounds, after having heard and considered any representations by the immigration officer and the foreigner concerned, extend such detention for an adequate period not exceeding 90 calendar days. Clause 2 deals with the short title and commencement date of the Act. • 6

  7. Recommendations . It is recommended that the Portfolio Committee on Home Affairs notes the contents of the presentation. 7

  8. Ndo livhuwa Ndiyabulela Ke a leboga Thank you Dankie Inkomu Ke a leboha Ngiyabonga CONFIDENTIAL 8

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