Visit to Lindela Repatriation Centre, Krugersdorp. Deputy Chief Justice Moseneke, Constitutional Court of South Africa

Transcription

1 Visit to Lindela Repatriation Centre, Krugersdorp Deputy Chief Justice Moseneke, Constitutional Court of South Africa Introduction On 2 April 2014, I conducted an unannounced judicial visit to the Lindela Repatriation Centre. I was accompanied by my personal assistant, Lesley Grobler, all four of my law clerks (Anthea Christoffels, Linette du Toit, Juliette Kouamo and Litha Mzinjana) and a clerk to Justice Froneman (Mathew Truscott). The Lindela Repatriation Centre, situated near Krugersdorp in the Gauteng Province, serves as a temporary detention facility for undocumented migrants who are awaiting deportation from South Africa. 1 The Centre is the only one of its kind in the country. The purpose of the visit was primarily to examine the treatment of detainees and to observe the general conditions in the facility. 2 I did not scrutinise the Centre s procedures for deportation or their compliance with the Immigration Act and will thus limit this report to the physical conditions of the detainees. We arrived at the premises at 10am and were received by the Centre s executive management. 3 The visit consisted of an engagement session with the senior executives of the Centre, followed by an actual walkabout, which was facilitated by officials from Bosasa 4 and the Department of Home Affairs. 1 In terms of section 34 the Immigration Act 19 of 2002, a foreigner 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. 2 The visit also served as a follow-up to an announced visit, conducted by Justice Edwin Cameron, on 27 July Mr Heinrich Grundlingh (ASD in charge of the Detention Centre), Mr Mahlolola Nesengane (Controlling Immigration Officer, Department of Home Affairs), Ms Ann Mohube (Assistant Director, Department of Home Affairs), Mr Lonwabo Myeki (Head of Lindela Holding Facility, Bosasa) and Mr Bertus Swanevelder (Unit Leader, Bosasa). 4 Bosasa is a private contractor, responsible for carrying out the day to day management of Lindela in partnership with the Department of Home Affairs. Bosasa provides the following services at Lindela: accommocation, administration, catering, health and safety, maintenance and technical services, office facilities for consulates and human rights organization, recreation and secure care, (accessed 7 April 2014). 1

2 Centre population Most of the detainees are economic migrants from the SADC region who have entered South Africa on a visitor s or asylum transit permit and have become illegal foreigners upon the expiration of these permits. 5 Officials stated that approximately 200 people are taken in on a daily basis. An illegal foreigner 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. 6 I was told that more than 70% of the detainees are deported within 30 days. According to the officials, the rest of the detainees will stay at the Centre between 30 and 90 days (with court approval) and only in exceptional circumstances shall a detention extend beyond 90 days. According to the officials at the meeting, there are usually around detainees at the Centre at any given time, however at the time of the inspection there were more than twice this number. The majority of the Centre s population are nationals from Sub-Saharan Africa (an estimated 60%), 7 20% are from the rest of Africa and the other 20% from Europe, South America and Asia. At present, approximately 2% of detainees are women. 8 The Centre does not detain pregnant women, children, elderly or seriously ill persons. 9 5 An illegal foreigner is the term used to describe a person who is in the Republic of South Africa in contravention of the Immigration Act 13 of Section 11 of this Act deals with the expiry and renewal of visitors permits. Section 23 of this Act provides that an asylum transit permit expires after 14 days and that the holder of such permit becomes an illegal foreigner if he or she has not applied for asylum at a Refugee Reception Office within that period. 6 Section 34(1)(d) of the Immigration Act. 7 The officials indicated that at present the Centre s population consist of mostly Zimbawean, Malawian and Mozambican nationals. 8 Currently there are 58 women detainees. The Centre has the capacity to hold 2871 women. It should be noted that female detainees are given preference in the deportation process. 9 Pregnant women are detained in a place of safety. 2

3 Admission of detainees Once a detainee arrives at Lindela Repatriation Centre, the Department of Home Affairs facilitates his or her reception and screening. The screening facility is intended to ensure that only persons who are indeed in the country illegally, are detained at the Centre. Each detainee has his or her details captured and is given a unique identity number, which reflects the date on which he or she arrived at the Centre, and his or her country of origin. The admission centre operates by means of a biometric system which can detect whether an individual is a repeat offender. However, officials informed me that the system is problematic and crashes often. 10 As an alternative they utilise a manual spreadsheet in which they capture the information. It is then sent to head office to be verified against the electronic record. Each detainee is issued with a unique card reflecting a photograph and barcode. Money and possessions are registered and placed in the property store of the so-called admissions room where it can be accessed during office hours. Before entering the accommodation in the facility, detainees are searched. We were informed that the search is not invasive and that the detainees are not required to remove their clothes. Women are searched separately by female officials. Deportation I was told by the officers present, that the Centre has arrangements with service providers which facilitate the booking of transportation for the return of the detainees. If detainees have enough money to pay for their own flights/bus tickets, they will be escorted to either the bus station or to a travel agency to book their own ticket The officials suggested that possible causes for the system failure include limited capacity of the server and an insufficient internet connection for sending and receiving data. 11 Zimbabwean and Mozambican detainees are usually deported by bus. Malawians and other foreign nationals must be deported by air as they cannot be transported through the territory of another state. 3

4 Facilities, living conditions and treatment of detainees Rooms and living areas There are two separate sections for men and women. In the men s section, 30 people share a room. The rooms are equipped with beds and blankets but only a single shower, toilet and washbasin. Each room also has a television and local channels are screened. There is an open area with recreational and sport facilities where the detainees can interact with one another and play games such as basket-ball. The Centre employs staff to keep the premises clean and tidy. Food The Centre has a fully-equipped, industrial kitchen which seemed hygienic and wellmaintained. Although the detainees receive the same meal for dinner every day, 12 the lunch menu varies and the food service, all in all, seems to provide for a balanced diet. Provision is made for the specific dietary requirements of diabetics and Muslims. Detainees also have access to a tuck shop. It was noted that detainees are given their dinner at the same time that they are served lunch, and that they take their dinner back to their rooms to eat later. This is to avoid the security difficulties in brining detainees to the mess hall at night. Clothing I enquired about the provision of clothing to the detainees since they are not prisoners and are therefore not provided with prison uniforms. The officials informed me that they do not provide clothes for the detainees. A small proportion of them do, however, arrive with luggage bags which are kept in storage and which they can access on a daily basis. The officials also mentioned that, because the department of Home Affairs does not provide laundry detergents, the detainees often purchase their own cleaning aids. The family members and friends are also permitted to bring clothing items to the detainees on their visits. Detainees are provided with soap and toiletries. 12 This set dinner consists of 1 egg, 6 slices of bread, jam, a fruit and powdered juice. 4

5 Access to communication and visitation The Centre has a visiting area where the detainees are allowed to receive friends and family. The detainees are given access to pay phones in the communal area where they can make telephone calls internationally and locally. The officials mentioned that the Department of Home Affairs also has a telephone available which the detainees may use free of charge. Cell phones belonging to the detainess are kept in the same room as the other stored luggage. The detainees are allowed to access their phones in order to retrieve numbers, but they may not use their own phones to make calls or send s. The Centre staff explained that they keep the cell phones in storage in order to prevent theft and altercations among detainees. We were told that detainees do not have access to internet and thus cannot send s. Access to money Any cash which the detainees may have is collected and kept by the officials. A fingerprint-operated banking system is in place, which allows the detainees to withdraw their own money should they wish to do so. The total amount of money being held in safekeeping for the detainess was more than R at the time of our visit. No provision is made for detainees to access their funds in their domestic or international bank accounts; however we were told that if a detainee wished to use such funds to pay for their repatriation, provision would be made at the travel agency to pay with such funds. Medical facilities The Centre is equipped with a 24 hour on-site clinic that works with several other health care facilities in the vicinity. Medicine is ordered and procurement takes place through Bosasa. When the Centre s clinic cannot treat a specific medical issue, the detainees are transferred to Leratong Hospital. HIV and Tuberculosis are treated at the Selby Hospital while detainees with psychiatric problems are transferred to 5

6 Sterkfontein Psychiatric Hospital. Bosasa telephonically informs the family of the detainee of his or her hospitalisation. Dr. Khoda, the resident general practitioner, explained that it is very challenging to provide patients with proper follow up care since it is extremely difficult to access their medical records. He explained that the problem of being able to access their medical records is particularly acute where detainees have been held in other prisons before being transferred to the Centre. Dr. Khoda, is the only GP for the entire clinic and he is seemingly always on standby. Disciplinary measures Detainees who fight are moved to a different section until their differences have been resolved; there is, however, no other punishment for fighting. Access to Legal Representation The officials stated that detainees have access to their legal representatives provided that the legal representatives make prior arrangements (at least 48 hour notice) with the Centre. Internal Complaints Mechanism The officials were asked whether an internal complaints mechanism existed and, if so, how it operates. The officials stated that the Department of Home Affairs has an information centre where the detainees may lodge complaints to an official on a daily basis. The complaints are also recorded in a complaints book. The full extent of the internal complaints mechanism is that detainees get to request to see Department of Home Affairs Officials. It is unclear whether or not a system exists according to which these complaints can be followed-up. Security and Control All the gates are controlled from the control room. The control room enables 24 hour surveillance of the facility. We were assured that there are no cameras inside rooms or bathrooms and that monitoring only takes place in the outside areas and the clinic. 6

7 Detainees complaints I addressed both the male and female detainees and, after expressing that the purpose of my visit was to inspect the conditions at the facility and their well-being, allowed them the opportunity to voice their complaints and comments. It appears that their major concerns arise from delays in processing their documents. Some stated that they have been there for more than three months and others more than 120 days. They explained to me that all they want is to return to their countries of origin. The female detainees also had complaints about meal times because they are served breakfast at approximately 12pm, after all the men had been served. They explained that this is particularly troublesome because many of them need to take medication early in the day, after eating. The officials present explained that they are willing to provide breakfast for the female detainees before serving the male detainees, but that they are reluctant to wake up earlier. Follow-up on issues uncovered by the visit by Justice Cameron According to the report prepared by Justice Cameron after his announced visit to the Centre, there were no benches in the women s section. Justice Cameron was told that these were being repaired. I can confirm that there were tables and benches available in the women s quad. Many of the complaints raised to Justice Cameron were not repeated. These include problems with accessing telephones, toiletries and hot water. The detainees also complained that they were forced to undergo HIV testing and that they were not allowed to see their visitors. The fact that these concerns were not raised during this visit, where the detainees once again had the opportunity to voice their concerns, may point to improved conditions in the facility since July Challenges faced by Lindela staff and management I enquired from the officials what their main challenges and concerns were, which they voiced as follows: 7

8 The fact that there is only one repatriation centre in the whole of South Africa is problematic. Illegal foreigners are arrested in all parts of the country and have to be transported here. Every person deported has to be identified by their consulate. The Centre experiences problems with embassies and consulates which are unwilling to co-operate in this process and are slow to issue the travel documents necessary for repatriation. The officers pointed out Somalia and India as two examples of countries whose nationals are detained for longer periods prior to deportation, due to this reason. Most detainees are from the SADC region and many tend to return to South Africa after they had been deported. Approximately 40% of detainees have been accommodated by the Centre on at least one previous occasion. There are reports of people being detained in Lindela up to three times in the same month. The application of the Immigration Act as a deterrent is clearly ineffective courts view the contravention of this Act as a minor offence and impose sentences accordingly. 13 The number of authorities/personnel tasked with fighting illegal immigration is insignificant compared to the number of illegal immigrants that currently are in South Africa. 14 The work force and number of immigration officers thus needs to be strengthened for better results. The necessary budget for an expedient deportation process is not available. Detainees who cannot afford their own transport to their countries of origin are thus subjected to a prolonged stay at the Centre. In respect of the judicial review of decisions relating to asylum claims, the Centre staff expressed that they find it problematic that there are no proper timelines set as to how long after an asylum application has been rejected, an application may be made to have the decision reviewed The consequence of contravention of the Immigration Act is merely deportation. 14 There are currently 529 immigration officials in South Africa. 15 According to sections 10A, 34 and 41 of the Immigration Act, an illegal foreigner may only be detained for the purposes of identification or deportation. When a decision regarding an asylum claim is taken on review, the 8

9 Conclusion Despite the visit being unannounced, I was warmly received and accommodated. The facility seems to be running smoothly. It does not appear that the human dignity of the detainees is unjustifiably impaired by the treatment that they receive. I do, however, have a number of concerns. The Department of Home Affairs is currently using a manual system in the admissions room and captures the details of new detainees on a spreadsheet. The automatic system, which was previously in place, ought to be repaired. The failure to use an effective system may well lead to the unlawful detention of persons beyond 30 days, as the date of their initial detention before being transferred to the Centre may not be reflected in the records. For the purposes of Section 34(1)(d) of the Immigration Act, it is essential that accurate records be kept of the date on which the person is first detained by authorities, not merely the date on which they are transferred to the Centre. Furthermore, concerns remain over the ability of detainees to consult with their legal representatives. The need to arrange a visit 48 hours in advance seems completely unnecessary, especially considering the time constrains in such cases. Nothing in the Immigration Act allows for such a denial of access to legal representation, and it is essential that persons deprived of their liberty be given access to legal assistance without unnecessary hindrance. The Centre should do everything possible to facilitate access to legal representation without delay. I am also concerned about the fact that detainees are not permitted to use their own cell phones to make calls or access the internet. 16 While it is understandable that the officials insist that cell phones cannot be taken out of the storage area, refusing that detainees use their phones while in the storage area seems to be an unreasonable detainee is issued with an asylum seeker permit in terms of section 22 of the Refugees Act and must be released, pending the outcome of the review. 16 As stated above detainees are only allowed to use their phones for the purpose of retrieving telephone numbers. 9

10 restriction of their right of access to information and to freedom of speech. Access to may also make it easier for them to arrange their return home. My final concern is the fact that the entire deportation process is hindered due to budgetary constraints. As stated above, the most common complaint voiced by the detainees is that they want to return to their countries of origin but that their detention is prolonged due to delays in the system. A situation where only detainees who can afford their own transport to their home countries are deported without delay is unacceptable. Government budgetary processes must seriously be reviewed in order to eliminate the undue deprivation of liberty. 10