Effective Management of Deportation of Undocumented Migrants from South Africa

Abstract

The problem of migration into the Republic of South Africa took shape at the dawn of democracy and it has since then become overly complex to manage. South Africa has witnessed an unprecedented, undocumented population over the past three decades. The illegal migrants are economic migrants who enter the republic illegally for greener pastures. There are possible repeat deportees commonly known as the “revolving door” syndrome. The number of repeat deportees and the reasons for their continuous return is not known. The deportation process is currently faced with numerous challenges of re-entry after deportation and serious budget cuts to fulfil the mandate. This has significant impacts on the management of deportation in the country. This chapter provides various aspects of immigration and deportation from a South African context and also identifies challenges faced to manage the deportation of illegal immigrants.

1. Introduction

There is only a small percentage of the world’s population that live outside their countries of birth or origin, but migration is still an important phenomenon on the political agenda of some countries. The movement of people across borders is a potential problem for almost all countries as it is nearly impossible to completely control immigration flows. The management of deportation is a mandatory function of the Department of Home Affairs (DHA) in the Republic of South Africa in terms of Section 34 of the Immigration Act 13 of 2002 as amended [1]. The DHA has two core businesses which are civic services and Immigration Services (IMS). Deportation management falls under the branch of IMS. IMS has further three business units namely, Port Control, Permitting (Visas), Asylum Seekers Management and Inspectorate. Inspectorate is established in terms of Section 33 of the Immigration Act 13 of 2002 as amended. The management of deportation is one of the functions of the Inspectorate, which is the law enforcement arm of the department [2]. The responsibility of the inspectorate is to comply with the Immigration Act. It is the responsibility of the deportation directorate to deport Illegal Foreigners (IFs) who are detected and arrested for contravening the Immigration Act.

2. Migration

2.1 Global migration

An immigrant is someone who voluntarily chooses to leave his or her own country and make a new life in another country. Movement is the established pattern of migration and is both a strategy of survival and livelihood and inseparable from identity. The daily mobility rate has declined with increasing age and duration of residence. Forced migration is defined as the coerced movement of a person or people away from their home or home region to another country [3].

The literature has shown that elderly people who live with adult children leave the country due to poverty or their disabilities [4]. Moreover, some scholars have suggested that many of the extended households mainly benefit the child in migration [5]. In addition, migration internally shows movement within the country and this is called internal displacement.

The recent policies such as liberalisation, macro-economic reforms, decentralisation, and regionalisation, and food security, for example, are likely to influence population movements. The government must plan for migrations because there is a correlation between development and population movement. Policy documents do not provide sufficient reference to migration and the controlling and limiting of migration remains a state objective [6].

In current development planning, the development-migration relationship plays out in two main ways. First, development strategies are proposed to reduce population movements that are harmful to development. Second, population movements are consequences, often unintended, of development interventions. For example, structural adjustment measures indirectly induce displacement. It has also been noted that sometimes forced population displacement is justified to further development and provide an opportunity for national poverty reduction measures. It was found that infrastructural development projects directly bring about population displacement and resettlement or for the alleviation of overcrowding and land-tenure reform in South Africa [7].

The most notable characteristic of deportation statistics in South Africa is their consistency in rankings and growth patterns. Mozambicans continue to pose the greatest challenge as they comprised 87% of all deportations in South Africa in 1996. However, Zimbabweans remain the second major problem as they have steadily increased as a percentage of the total from 8% in 1996 to 43% by 2004 [8].

The exponential increase in deportations from 1994 to 1996, reflects the restrictions represented in the 1995 amendments to the Aliens Control Act, 96 of 1991 [9]. The end of the Apartheid regime with the beginning of democracy in South Africa and the promise of higher employment rates, had an impact on illegal migration as it clearly increased the number. The amendments show the government’s harsh perceptions of illegal migrants in South Africa [10]. Moreover, statistics on the immigrants who were detained at the Lindela Repatriation Centre indicate that the average age of detainees is 25.8 years. Moreover, the proportions of males to females are equal [11].

2.2 Impact of global migration

Various governments consider numerous methods to decrease access by foreigners. Sometimes this is an inevitable result that immigrants continue to cross barriers and live within the country without proper documentation. This constitutes illegal immigration [12]. There was mass migration in the onset of nineteenth- and twentieth-century patterns of mass migration that were much lower compared to the present. This was caused by the increasing income inequality and the widening gap between rich and poor countries that only intensifies the pressure on those who can find employment in other countries. An important theme that comes strongly across in global migration and the world economy is the potential gain in terms of global income if migration controls and restrictions were to be released [13].

The data from the international migration network show that overall, there has been a reduction in migration. However, whilst migration flows are high in absolute terms, in relative terms they are not. The long view of migration compares mass migrations before the First World War and the Second World War. At both stages, globalisation promoted the movement of people but also increased the development gap between sending and receiving countries. The main difference between the two periods of world history lies in the fact that it was more favourable in the first period compared to the restrictions on immigration characteristic of the recent period. Presently, there is a massive return of migrants to their countries of origin. In previous depressions there was always somewhere else to go, but not this time [14].

It has been estimated that between 2.5 million and 5 million or up to 7 million irregular migrants are present in South Africa as reported by the Department of Home Affairs [15]. There are many types of migration occurring in the country. The different types of migration can be characterised as highly skilled migration, qualified and educated professionals, and unskilled and illegal migration. Unskilled and illegal migrants enter the country after the political transitions from the Apartheid regime to democratic South Africa in 1994 [16]. These foreign migrants experience harassment by police officials. Police officers abuse their power by requesting bribes or by abusing the migrants when checking migrants for their identity document (ID) which is against their human rights [17].

Moreover, migrants are at the risk of being unnecessarily arrested and detained for longer periods which violates the law [18]. Usually, illegal migration is less beneficial for immigrants as they do not have access to a full range of employment. They must accept lower wages for the same job and pay for higher immigration costs.

The movement of migrants fluctuates because of factors that include geographic proximity, the precedent, sociocultural issues, communications and technology, and demographic, environmental, economic, and political considerations.

South Africa has seen increased pressure on resources such as housing, strains of overpopulation and resultant transmissions of disease leading to increased expenditure and social and political tensions. Migrants, therefore, are marginalised and have a low-status in society with low-paid employment [19].

Many people enter South Africa illegally. One way of controlling this movement is by deportation. Deportation is the expulsion of a person or group of people from a place or country. Therefore, South African and international literature will be used to identify factors that lead to ineffective management and factors that influence illegal immigrants to enter a country. Thus, saving South Africa millions of rands in revenue [20].

2.3 International immigration theory

The literature suggests that there are three theories of migration, in which the purposes of migration are not the same and do not supersede another. The first one is macro theories which emphasise the structural, objective conditions that act as “push” and “pull” factors for migration. The push factors are the things about a country that make it not desirable and make people want to leave for reasons such as political and economic factors which leads to unemployment conditions, poor wages, or poor per capita income and political persecution compared to the host country. The pull factors are the characteristics of the host country that make it desirable and people want to be in that country for those benefits. These pull factors may include labour and migration legislation situations, better amenities, living conditions, education, health care, and many others [21].

In addition, forced migration may be caused by factors such as state repression or fear of persecution or civil war. All these theorists agree that macro conditions such as those are vital because they cause forced migration and pioneer voluntary migration. Pioneer migrants are the first individuals or groups of migrants from a given country or area moving to another country or area. These migrations are not voluntary but rather forced upon the individuals [3].

Although migrants are persistent in their quests to enter South Africa they are ill-equipped in dealing with the economic conditions and legislation in receiving countries. Rates of flow differ from mass emigration to almost no mobility [3]. These rates are influenced by political instability and the pursuit of economic opportunities.

The systems and networks are particularly important for meso-theory analysis regarding the population size. Groups of countries can be linked economically, politically, and culturally which further influences migration flows. These networks refer to the individual and collective factors with symbiotic ties that link them together [22].

Besides, once formed, social networks can substantially influence the direction and volume of migration flows, providing resources that help people to move, such as information, contacts, economic, and social support.

The micro-theories are factors that attract or give reasons for individuals to migrate, weighing the cost-benefits of migrating. This may include the financial resources invested in migrating and integration in the country of destination, while benefits could include a higher wage. The micro-perspective provides a critical analysis in terms of pointing out how people internally process and assess the options for migration. There are forms of check or control for macro- and meso-theories, in relating to how individuals make decisions on the fact of objectivity [23].

3. Methodology

This was a policy document and literature review study. South African Immigration Act, legal framework documents were reviewed. The literature review was conducted between October and November 2020 using Google Scholar and Ebscohost search engine. The following keywords were used to search the literature: Immigration, Migration, Deportation, and illegal foreigners. Initially, a total of 250 abstracts were retrieved for relevance. After careful consideration, 53 articles were found suitable for the study. Based on the policy and legal documents, together with literature, we summarised the management of illegal deportation of undocumented migrants as well as, the challenges faced by the DHA of South Africa.

4. South African context

4.1 Republic of South Africa immigration act of 2002

The Immigration Act manages how foreigners enter, depart from, and reside in South Africa. People who do not follow the Immigration Act can be arrested, detained at the Lindela Holding Facility, and then deported. The detention and deportation procedure are conditional to many legal protections that shield the constitutional rights of foreigners who are in detention or who are going to be deported [24].

The Immigration Act defines an ‘illegal foreigner’ as a person who enters South Africa in breach of the Immigration Act, or someone who does not have the correct documentation such as an asylum seeker permit, legal recognition of refugee status, or a valid permit or visa in their passport. The term ‘illegal foreigner’ is an issue as it creates the perception that the person is a criminal. A person cannot be ‘illegal’ just because they do not have the correct documents in terms of a country’s immigration laws [25].

An illegal foreigner may involuntarily have to leave South Africa via a deportation process administered by the Department of Home Affairs under detention legislation outlined in the Immigration Act. Generally, this person would be returned to their country of origin. The Lindela Holding Facility would detain the migrant until this occurs, as set out by Sections 32 and 34 of the Immigration Act.

The Department of Home Affairs works with officials from the foreigner’s country of origin to guarantee they will be received once they return as part of the process of deportation. Deportation is the function of the state and should be done by following the law [26].

4.2 The legal framework for migration in South Africa

During the Apartheid regime, South Africa had a set of legislation to control the movement of the non-White population that was linked to employment opportunities that only allowed low to semi-skilled work known as the pass laws. The Act only permitted the White population into urban areas while all non-White adult men had to always carry passes to justify their presence in those areas. Anyone found without the correct documentation were to be arrested and sent to rural areas. This law was created to restrict the control of movements of the non-White population within the country. This included constant coercion and the presence of a submissive workforce only when and where it was needed [27].

Moreover, from 1960, this system of controlling the movements of the non-White population was extended to the foreign migrants known as the ‘two gates’ policy. The Aliens Control Act almost did not allow any non-White migrant workers to enter the country. There were also a set of mutual agreements with countries across the border of South Africa. These agreements allowed foreign migrants into the country as they were needed by economic sectors such as mining or commercial farming [28].

The Aliens Control Act has evolved since 1937 with updates occurring in the 1960s and 1970s. The original focus involved restricting Jewish immigration to South Africa by enforcing police controls at various entry points and arresting those migrants who did not have the relevant documentation [29]. During this period, this Act was only available to White inhabitants employing migrants. Since South Africa’s democratic government came into power in 1994, a new Immigration Act was adopted in 2002 that replaced the Refugees Act of 1998 [30]. However, scholars have reported that public officials, such as migration and police officers, may retain historical attitudes on South African migration policies [31].

After the demise of the Apartheid era, new regulations replaced the previous legal framework concerning migration. At present, these regulations are outlined in the 2002 Immigration Act, the 1998 Refugees Act and the Constitution of 1996. The former, which was amended in 2004, defines the enforcement and monitoring principles as well as the general objectives of the migration policies regarding temporary and permanent residence.

It is reported that during Apartheid the Alien Control Act opened a path for foreigners to become South African residents. The Act did not solely focus on opposing illegal migration and it particularly outlined the protection of migrants’ rights [32].

There were numerous ways to receive temporary residence in South Africa. For example, employment, education, visiting or meeting family, applying for asylum, and cross-border travels as outlined in the Immigration Act of 2002 [33]. The Act also establishes special work permits, which are easier to obtain for people with exceptional skills or qualifications as it benefits South Africa to increase their professional and skilled workers. Moreover, the Immigration Act also maintains the category of ‘corporate work permit’.

Corporate companies may employ migrants by applying directly to the Department of Home Affairs while placing financial guarantees. However, due respect regarding the migration regulations needs to be granted by the provision of numbers employed and their job descriptions [34]. In some cases, such as in the mining and agricultural sectors, the Act enables the government to waiver, reduce, or even end certain requirements with foreign countries regarding permits for work migrants.

The Immigration Act provides a robust mechanism to maintain a balance between the needs of the South African economy and the high level of unemployment in the country [35].

4.3 Illegal migrant/illegal foreigner

According to the Immigration Act (2002), an illegal or legal immigrant will temporarily or permanently settle in the Republic of South Africa. Regularisation of an illegal immigrant in South Africa occurs as soon as he/she receives the proper documentation, which is in accordance with the Immigration Act. Following the successful completion of this process, the applicant’s immigration status changes to permanent residence.

Any foreign national or immigrant who is not properly documented according to the Immigration Act is liable to an offence of contravening the Immigration Act and will be either forcefully or voluntarily deported. This is to ensure the efficiency of planning and budgeting by the state. To create a history of sustainability for humans, good national governance is an important component [36].

An issue of immigration is to ascertain the extent of illegal immigration and its main features, which is fundamental for efficient management of the phenomenon. However, the official figures are inadequate, leading many experts to estimate the data through direct measures [37].

Illegal immigrants face numerous hindrances by being compelled to work in the informal economy as comparatively having a legal status opens up a wide variety of employment opportunities with resulting higher wages and lower immigration costs. Illegal immigrants feel that they need to pay for false documents to avoid employment in poor working conditions.

Moreover, on average, their wages are lower than those paid to legal immigrants.

Even though illegal immigrants have different status results and characteristics from legal immigrants, their motivations to migrate are the same; they look for ways to improve their economic and social situations.

Other studies have debated issues such as national security and civil rights but in this chapter, the emphasis is on the economic consequences of illegal immigrants and their effect on goods and services, social benefits and welfare, and income distribution [38].

Employers benefit from illegal labour that is abundant, inexpensive and flexible, with illegal immigration responding faster to economic incentives compared to legal immigration. Ebbs and flows in the markets of the expanding and contracting economic periods in both the host and the sending economies are more visible in illegal immigration [39].

4.4 Reasons for illegal migration into South Africa

The process for acquiring documentation poses logistical and financial issues, and what is required for people is not necessarily clear. For some people, the fee of R430 for a visa application may be high and may discourage migrants from applying for this at all which makes illegal entry into the country more appealing [40].

Furthermore, there may be cross-border ethnic similarities and the absence of solid barriers, which may lead to an extension of internal migration that is still considered to be irregular immigration. People who live along borders may cross these borders often without the proper documentation to carry out their daily business of trading, visiting family, attending school, or doing shopping. A potential solution is to create a cross-border system that facilitates movement within a prescribed area across a border. The Immigration Act makes an exception regarding a cross-border permit for South Africa’s immediate neighbours. However, the regulations neither provide a clear indication on how to make an application, nor do they contain an example of the permit itself [41].

In addition, it may be difficult or impossible for some migrants to meet the requirements to attain a permit. For example, many of the migrants who want to enter South Africa in search of employment may not qualify for a work permit. This may lead to documents being forged or tampered with. Fraudulent entry has been accomplished either by going undetected or with the complicity of corrupt officials in South Africa.

The record of arrests of department officials on charges of corruption generally indicates where the corrupting influence comes from and has significantly implicated Chinese, Pakistani, and Nigerian migrants. The intention of securing services or rights to which they are not entitled within South Africa encourages fraud. A specific issue is that where the department must handle is fraudulent citizenship obtained through the delayed registration of births [42].

Moreover, the issue is the registering of fraudulent marriages between foreigners and South Africans. In both these situations, corruption within the department makes it possible for irregular migrants to establish their presence through fraudulent means. Moreover, a lack of resources and inefficiency of the department, causing delayed, incorrect or invalid delivery of citizenship or residential services result in migrants not having the proper documentation which may lead to their irregular or illegal migrant status [43].

4.5 Deportation

Deportation is the action or procedure aimed at illegal foreigners to leave the country in terms of the Immigration Act (Immigration Act, 2002). Some authors define deportation as the removal of an alien out of the country. This is simply because his or her presence is deemed inappropriate with the public welfare. Also, this happens without any punishment being imposed or contemplated under the laws of the country. In the USA, most of the people who are deported are normally those who have also committed crimes within the country [44].

4.6 Re-migration after deportation

The data from the Department of Home Affairs have shown that there is a pattern of illegal migrants who re-enter South Africa after being deported once within six months [45]. Most of these returnees are from the SADC countries who simply jump the borders such as Zimbabweans. This phenomenon has been termed the ‘revolving door syndrome’. The porous borders greatly contribute to this phenomenon. In November 2003 media briefing, the Director-General began to draw attention to this concept as it was an increasing challenge for the country. The revolving door syndrome is a difficult concept to measure. The recent introduction of the fingerprinting system should be an attempt to address this problem [46].

Furthermore, this phenomenon implies that the deportation process does not have much preventative effect. If irregular migrants are not stopped by their experience of deportation, the process becomes redundant. It has also been noted that some illegal immigrants present themselves to immigration officers for arrest and deportation around the Christmas season as a way of receiving a free ride home. This has led the department to pause deportations over this period [47].

The effectiveness of the deportation process is questioned by the human rights community, as while touring the Lindela Holding Facility, the South African Human Rights Commissioner opined that the system of detention and resulting deportation was unsuccessful and this was concurred by the Lawyers for Human Rights. The detention and repatriation process was believed to promote illegal migration into South Africa according to the Deputy Chairperson of the Commission. This process has been termed as the ‘revolving door syndrome’ [48].

Pull and push factors influence the success of the migrants to return to their countries of origin. For instance, having a family in the receiving country would motivate them to return to South Africa. Also, should there be a lack of support, financial and otherwise, from family members, migrants would be motivated to return to the receiving country again, in this case, South Africa. Similarly, if the repatriated family member had committed a major criminal offence, the relatives would be loath to support them [49].

4.7 The management of the deportation process in South Africa

The Linda Holding Facility is the largest detention centre for undocumented migrants in South Africa. Literature shows that the current management of deportation is unfair and ineffective [50]. There are various issues experienced by detainees during their arrests such as the arrest and detention of foreigners with valid documents, failure to take various steps to verify immigration status, failure to inform suspected illegal foreigners of the reason for their arrest, physical harm during the arrest process, lack of access to cell phones and refusal to allow detained suspects to call relatives or friends, systemic problems with the DHA’s record-keeping and lack of communication between the DHA and the police, and lastly detention of suspected illegal foreigners for more than two days which is a violation of their human rights law as well as the immigration law. These issues illustrate that problems in the detention and deportation process are not limited to the actions of the DHA alone [26].

The best alternative to resolving some of the issues mentioned above is through coordination and cooperation with other departments, particularly, the South African Police Services. Moreover, one of the main issues identified was the lack of effective verification of an individual’s immigration status before being sent to Lindela Holding Facility. This is due to various reasons, including corruption and abuse of power, insufficient resources, and the failure to follow legal procedures by providing individuals with an opportunity to confirm their status with supporting documents when it is reasonable and practicable. Due to these issues, individuals with illegal immigration status frequently find themselves at the Lindela Holding Facility. This increases the burden on the DHA, in terms of verification, transport, and administration [51].

The inefficiency and abuse that is evident in the Lindela Holding Facility reflect poorly on the vision of a democratic South Africa as it jeopardises the rule of law and is directly in conflict with the country’s respect for human rights, regardless of an immigrant’s legal status. This aspect is a vital contribution to a functioning democracy [52].

The Lawyers for Human Rights (LHR) frequently visit this facility and have represented many of the individuals illegally detained there. It is in the interest of the government to remedy the causes of these legal violations as most of them have resulted in costs and punitive damages against the DHA. The overall cost of detaining migrants has raised the costs of detention [53].

Detainees at the Lindela Centre have expressed feelings of frustration and legal uncertainty [54]. Despite the numerous South African laws that protect illegal immigrants, abuses of power are still evident. Detainees have prolonged, indefinite periods of detention with a lack of information on their legal status. Some individuals were aware of the appeal process through reviews which would enable them to challenge their circumstances. However, others reported being unable to access these rights due to the barriers in the facility. Immigration officials within the DHA holding facility were unavailable to detainees who reported only having contact with Bosasa staff who were responsible for the daily operations there. Corruption was a common theme that prevented them from exercising their rights of review and appeal [53].

Asylum seekers in Lindela who are at risk of prosecution could be sent back to their countries of origin by the DHA which is a direct violation of the international prohibition against non-refoulement [55]. Those asylum seekers who were released from the facility and told to report to the refugee reception office were rearrested which indicates a lack of communication between officials in Lindela and the reception offices [56].

There are implications from the literature on the migration patterns in South Africa. First and foremost, the Department of Home Affairs must address its ineffective administrative processes and fulfil its mandate cost-effectively and legally that upholds the rights of all individuals. A total of 29% of the respondents were not advised on the reasons for their arrest, and 10% reported being injured during the arrest. Those arrested by the SAPS were more than twice as likely to have suffered an injury during the arrest which indicates that these police personnel frequently abuse their power by causing physical harm to the migrants which is a violation of their human rights. Individuals arrested by immigration officials could make calls more often (57%) than those arrested by the SAPS (41%) [57].

Furthermore, it has been reported that there were problems with the verification process when the individuals were arrested on suspicion of being illegal foreigners. The statistics reported that 53% of the respondents had asylum permits and only 21% of the respondents were undocumented [58].

In some cases, the individuals detained as illegal foreigners did hold valid refugee IDs, asylum seeker permits, or even South African IDs [59]. This highlights the deficiencies in the verification process as it is evident that these individuals have not had their legal status verified. This study illustrates that the management of deportations within Lindela is shown to be ineffective.

4.8 Corruption

Requests for funds were reported by 21% of the detainees to avoid being physically harmed, further detained, or arrested. These requests arose from interactions with DHA officials (35%), Bosasa employees (8%), and police officers (50%). At the facility itself, requests for money was mentioned to secure their release and avoid deportation waiting periods [60].

5. Conclusion

The DHA officials should understand immigration laws while performing official work. The tracing of people in the Republic of South Africa is important but illegal immigrants are not easy to detect because they do not have a permanent place of residence for illegal immigrants in South Africa. The arrest of illegal immigrants must be done according to the law and the constitution. Several pull factors lead to re-entry into South Africa after deportation and these include property in the republic, and family and social networks, among others. These pull factors must be addressed during the deportation process so that they are not tempted to get back to the republic. The DHA official must understand these pull factors whilst executing the deportation processes.

There are several challenges to illegal immigration in South Africa, but the most important ones include poor border control systems. South Africa has more than 100 gazetted entry points and the controls are poor. Moreover, IT systems are not integrated and resources are limited.

This study has provided insights into the management of deportation of an undocumented illegal immigrant in South Africa which was lacking in the literature. In addition, policymakers may use the findings of this study to design robust policies to secure the border and protect citizens from the negative consequence of illegal migration such as drugs, fraud and others which is on the rise in the Republic of South Africa.