A/HRC/17/33/Add.4 56. Furthermore, the Special Rapporteur noted inconsistencies in the application of frameworks regarding the right of migrants to apply for an asylum visa. Reportedly, many immigration officers tend to favour the procedures of the Immigration Act that only require a written warrant to extend detention, rather than the more protective procedures of the Refugee Act that only allows detention if the detainee’s permit has been revoked (under the Immigration Act). The Department of Home Affairs has defended the necessity to detain asylum-seekers, on various grounds: (a) asylum-seekers who allow their permits to expire become illegal foreigners; (b) when someone ceases to be an asylum-seeker following the initial rejection of his or her claim, regardless of any ongoing appeals; (c) an asylum-seeker permit merely allows an individual to “sojourn” in the country; nothing prevent this sojourn from taking place in detention; and (d) an asylum-seeker permit issued or renewed from detention does not entitle an individual to be released from detention. In the case of Arse v Minister of Home Affairs and Others, the Supreme Court of Appeal rejected all of these views and stated that an individual remained an asylum-seeker throughout the appeal and review process, and that the granting of a permit to an “illegal foreigner” rendered that person an asylum-seeker. The Department of Home Affairs therefore cannot detain an asylum-seeker regardless of where that person is in the application or appeal process. This view was later applied by the High Court to the case of Amadi v Minister of Home Affairs of 12 January 2010. The Special Rapporteur believes that the Department of Home Affairs should clarify this legal framework, in particular its enforcement and use, and clearly separate between the two different groups of migrants. 57. Apart from the weaknesses in the legal framework, the Special Rapporteur found that the biggest challenge was the absence of monitoring and oversight in existing procedures with regard to immigration, including detention. While the detention of other categories of detainees is supervised by the Judicial Inspectorate for Correctional Services under the control of the Inspecting Judge, persons detained under the Immigration Act do not benefit from such oversight. 58. The Special Rapporteur found the practice of outsourcing the management of the Lindela Immigration Detention Centre to a private corporation unusual. Although at the time of his visit the Centre seemed properly run and managed, concerns could be raised about the accessibility of persons detained and awaiting repatriation to be able to claim asylum or protection under the Refugee Act, especially if contact with Home Affairs officials is limited, given that interactions take place with the private company managing the facility.12 The Special Rapporteur also heard complaints about the lack of access to health care and to a culturally appropriate diet to detainees, and reminds the Government that, as mentioned in previous reports, detention of irregular migrants should only be used as a last resort, and that migrants should not be treated like criminals. 59. With regard to the Lindela Immigration Detention Centre, the Special Rapporteur recalls that that the Working Group on Arbitrary Detention, in its report on its visit to South Africa in 2005, expressed concern at the situation of foreigners detained under immigration laws, as the procedure did not make it possible to effectively challenge the lawfulness of detention and places the burden on the person concerned to prove the right to remain in the country. Legal aid was not available for immigration matters, and the conditions of detention in the Centre did not meet international standards.13 Six years later, those concerns remain. The Special Rapporteur would therefore welcome more cooperation with civil society so as to allow monitoring visits to detention centres. Also, he calls upon the 12 13 14 Lawyers for Human Rights, “Monitoring Immigration Detention in South Africa” (see footnote 4). E/CN.4/2006/7/Add.3, para. 85.