No. 14: Policing Migration: Immigration Enforcement and Human Rights in South Africa

This paper examines reported incidents of human rights abuses and violence directed towards foreigners where government employees have been the perpetrators. We discuss both direct human rights abuses and incidents of violence (with examples drawn from policing exercises such as “Operation Crackdown” and from the detention of undocumented migrants) and institutional violence (such as migration policy development and other executive actions promoting or at least failing to prevent victimisation of foreigners). In many of the reported incidents, law enforcement officials have been the direct perpetrators of the human rights violations. The South African government is legally responsible for ensuring adherence to national and international human rights standards and the Constitution. We argue that the South African government needs to ensure that laws are adhered to but also to create a clear framework to guide and legally underpin police and immigration conduct to prevent human rights abuses. We also scrutinise the involvement of non-Governmental organisations and the South African Human Rights Commission in their attempts to prevent unlawful arrests and to improve the conditions of detention. In exploring the treatment of foreigners in South Africa, it is important to define some of the concepts to be used. This is particularly important because our definition of these terms differs from that in common usage. In much of South Africa, the term “foreigner” is regularly used to portray a coherent and uniform group of people without South African citizenship. However, this definition not only disregards the internal diversity and complexity among foreign citizens in South Africa, but also risks ignoring the significant difference between documented and undocumented migrants. There are various categories of documented non-nationals in South Africa, including refugees, asylum seekers and people with temporary and permanent residence who are legally in the country. These persons have applied for and been granted permission to reside in South Africa for a specific period. A significant group of non-South African citizens also present in the country are undocumented migrants or “illegal foreigners.” Undocumented migrants have not been granted permission to reside in South Africa. By law, they are therefore under some degree of command to leave the country, either by force or voluntarily. Although the difference between documented and undocumented migrants is relatively clearly defined in terms of legality, the two categories are persistently tangled and often ignored in practice by law enforcers. Documented migrants, especially black foreigners, are often incorrectly perceived a priori as being illegally in the country and treated as such. Direct human rights abuses and violations directed towards foreigners are often the combined result of xenophobia and other overlapping attitudes of hostility towards foreigners (Crush 2000). We argue that such actions towards foreigners stem from a social status of being black and foreign, a status that does not necessarily equate to a status of being illegally in the country. The forms of human rights abuse and violence are not exclusively about physical harm but also incorporate instances of psychological and emotional harm inflicted upon victims. Bringing in the concept of victim integrity broadens this category further. For example, extreme force used by police that clearly exceeds the amount of necessary force violates that integrity of the victim and is therefore unjustifiable. When the state, or any agent of the state, initiates this action, state-supported violence is at issue. When violence is persistent and patterned it may be termed institutionalised. To term such negative aspects of South African policy “institutionalised” requires a sensitive understanding of South Africa’s migration policy development and the policy context in which it operates. It has become international practice for governments—and South Africa is no exception—to control migration through restrictive immigration policies. Some of these policies include excessive visa requirements and other deterrent measures such as punitive and arbitrary detention, carrier sanctions, rejection at borders and large repatriation programmes. Some of these measures may be lawful; others are not. In any event, the enforcement of such policies generates a range of institutional points at which violence might occur. The potential for human rights abuse and violation directed towards foreigners spans the entire criminal justice and immigration regime, ranging from the first contact with the arresting police officer to the final physical departure from the country in the deportation process. While the police serve various functions regarding the enforcement of immigration law, such as arrest and initial detention, the Department of Home Affairs retains ultimate responsibility for the granting of legal status to foreigners, the renewing of permits and the deportation of undocumented migrants. This paper examines the roles that the police and the Department of Home Affairs have played in the treatment of foreigners since 1994 (between 1994 and 2002)