A/HRC/17/33/Add.4 17. Following arrest, most illegal foreigners are sent to detention centres, pending deportation. An asylum-seeker whose application is rejected may lodge an appeal within 30 days, but will remain in detention until the appeal is finalized, a process that can take more than a year. Asylum-seekers are only released once they are granted refugee status.4 3. Minors 18. Section 28(2) of the Constitution provides that the child’s best interests are “of paramount importance in every matter concerning the child”. According to section 29(2) of the Refugees Act, “the detention of a child must be used only as a measure of last resort and for the shortest appropriate period of time.” The Immigration Regulations stipulate that detained minors should be kept separately from adults and in accommodation appropriate to their age and that unaccompanied minors should not be detained (article 1(d) of annex B to regulation 28(5)). The Child Care Act requires that children be brought before a children’s court to determine if they are in need of care. 4. Asylum-seekers and refugees 19. The status of asylum-seekers and refugees is distinct from that of persons deemed illegal foreigners, and is governed separately by the Refugees Act, although the Special Rapporteur did note that this distinction is sometimes subject to confusion and misinterpretation. An asylum-seeker who enters South Africa must present him or herself to one of the country’s six refugee reception offices to apply for refugee status. Section 6 of the Act requires that the latter be interpreted and applied with due regard to instruments of international human rights protection. This approach is in conformity with the Constitution, which requires that the Bill of Rights be considered in the light of the State’s international obligations. Section 21(4) of the Refugees Act demarcates the boundary between the Immigration Act and the Refugees Act, stating that no proceedings may be instituted or continued against a person for being an “illegal foreigner” if that person has either made an application for asylum or has been recognized as a refugee. Where the Refugees Act applies, the provisions of the Immigration Act should not be employed. The Refugees Act contains its own measures for enforcement, including detention. According to the Refugees Act, a refugee or an asylum-seeker can only be detained if his or her permit has been removed, and even then, he or she must be brought before a high court judge to determine if further detention is reasonable and justifiable.5 Accordingly, the Immigration Act cannot be applied to individuals whose status falls under the provisions of the Refugees Act. 5. Other arrest procedures 20. The Criminal Procedure Act (Act No. 51 of 1977) allows for the arrest and detention of “prohibited persons”, a category of persons different from those deemed “illegal foreigners”. In the area of border control, arrest and detention is governed by the Defence Act No. 42 of 2002. While domestic law enables other law enforcement agencies to be involved in immigration enforcement, only immigration officers are empowered under the Immigration Act to declare someone an illegal foreigner and to effect their deportation from the country. In the normal course of events, a police officer, an immigration officer or a member of the National Defense Force patrolling the border may, on reasonable grounds, request a person to identify as a citizen, a permanent resident or a temporary resident. The person may be detained for up to 48 hours while their status is verified, provided that there are reasonable grounds for such detention. 4 5 Applications may only be lodged with a designated refugee reception centre. For this reason, applications cannot be lodged at the Lindela facility. Lawyers for Human Rights, “Monitoring Immigration Detention in South Africa”, December 2008. 7