A/HRC/17/33/Add.4 C. Arrest and detention of foreign nationals 52. The constitutional order includes administrative and judicial safeguards on detention. The Special Rapporteur was pleased to see that a new legal framework regarding the arrest and detention of immigrants was introduced after 1994. The new framework includes the Immigration Act of 2002, the Refugee Act of 1998 and, in the areas of border control, detention and arrest, the Defence Act of 2002. The Special Rapporteur noted that, although this legal framework exists de jure, it has yet to be fully implemented by the Department of Home Affairs, which oversees key issues relating to immigration. The Special Rapporteur found that both undocumented and documented foreigners fell outside the existing legal framework.11 As a result, detention remains the primary tool of immigration enforcement. 53. The Special Rapporteur regrets that shortcomings in the manner in which migrants are treated by the Department of Home Affairs remain. First of all, the Special Rapporteur believes that there are flaws in the Immigration Act with regard to what constitutes an “illegal foreigner”. As mentioned above, any immigration officer who has “reasonable grounds” to think that a migrant is in the country in contravention with the Act can detain a migrant. However, the “reasonable grounds” standard is not clearly defined, either in the actual framework or by jurisprudence. As the decision to detain is often left to the immigration officer’s own judgement based on what he deems “reasonable grounds”, many migrants who are picked up as “illegal foreigners” actually do possess papers entitling them to be in the country legally. A weak legal framework is unfavourable, because it can easily lead to differences in practice, as well as arbitrary and unlawful detentions. The Special Rapporteur would welcome a rewording of the Immigration Act so that it provides clearer standards and policies with regard to what qualifies as an “illegal foreigner” and on which grounds he or she can be detained. 54. The Special Rapporteur also noted certain practices of concern in the enforcement of the Immigration Act, as he was informed of cases where police officers and even members of the military assist with immigration enforcement. Any illegal immigrant arrested by military or police forces must be handed over to an immigration officer; those seeking asylum are transported to a designated refugee reception centre. Immigrants may be detained overnight until the offices of the Department of Home Affairs open (such as in the case of the Musina detention centre situated on the Zimbabwean border). Border control, arrest and detention are also governed by section 18 (1)(d) of the Defence Act, as South African law enables other law enforcement agencies, such as the police or the military, to be involved in immigration enforcement. The Immigration Act is clear, however, on the fact that only immigration officers are empowered to declare someone an “illegal foreigner” and to effect their deportation. 55. The Immigration Act allows “illegal foreigners” to be detained for a period up to a maximum period of 120 days. The Department of Home Affairs has, on numerous occasions, defended both the legality and the necessity of detention beyond this 120-day period. The Act, however, makes no provision for situations in which the detainee cannot be deported within 120 days. The Special Rapporteur was informed that these individuals fall into a legal limbo without governing framework or legal recourse, despite the fact that the Supreme Court of Appeal, in the case Arse v Minister of Home Affairs and Others, clearly stated that individuals being detained as illegal foreigners may not be held for more than 120 days (although this case did not apply to requests for asylum received after the individual concerned had already been detained in view of deportation). 11 Lawyers for Human Rights, “Monitoring Immigration Detention in South Africa” (see footnote 4) . 13