Rahim v The Minister of Home Affairs

Fifteen foreign nationals (14 from Bangladesh, 1 from Ghana) were asylum seekers who had been granted asylum seeker permits under section 22(1) of the Refugees Act 130 of 1998. They attended regularly at the Port Elizabeth Department of Home Affairs office to renew their permits pending finalization of their asylum applications and appeals. After their appeals were rejected, they were arrested as illegal foreigners under section 34(1) of the Immigration Act 13 of 2002 and detained at various police stations and prisons (including Kwazakhele police station, St Albans prison, New Brighton Police, and some at Lindela deportation facility) for periods ranging from 4 to 35 days during 2010. They were released pursuant to litigation and agreements with the Department. They sued for damages arising from their allegedly unlawful detention, claiming violations including: (i) absence of a determination by the Director-General as required by section 34(1); (ii) failure to inform them of their rights; (iii) detention in facilities not designated for illegal foreigners; and (iv) breach of constitutional and international law standards.

• Whether the detention of illegal foreigners pending deportation under section 34(1) of the Immigration Act 13 of 2002 requires a specific determination by the Director-General regarding the manner and place of detention
• Whether detention in ordinary police cells and prisons, without a determination by the Director-General designating such facilities for the detention of illegal foreigners, is lawful
• Whether the principle of legality requires strict compliance with the requirement in section 34(1) that detention be 'in a manner and at a place determined by the Director-General'
• What quantum of damages is appropriate for unlawful detention of foreign nationals

The appeal was upheld. The High Court's dismissal of the claims was set aside. The Court declared the detention of each appellant unlawful and awarded damages ranging from R3,000 to R25,000 (depending on duration of detention, which ranged from 4 to 35 days) with interest at 15.5% per annum. The Minister of Home Affairs was ordered to pay the appellants' costs in both the High Court and Supreme Court of Appeal, including costs of two counsel.

The ratio decidendi is that section 34(1) of the Immigration Act 13 of 2002, which authorizes detention of illegal foreigners pending deportation, requires strict compliance with its express terms that detention must occur "in a manner and at a place determined by the Director-General." These words are deliberate and not superfluous. In accordance with the principle of legality, which constrains the exercise of public power and is foundational to the rule of law, detention can only take place as prescribed by the statute. The State bears the onus to prove compliance with this requirement and to justify any deprivation of liberty. The mere existence of state-controlled detention facilities such as prisons or police cells does not satisfy the statutory requirement for a determination by the Director-General. The determination contemplated by section 34(1) must be a specific, identifiable decision designating particular facilities or parts of facilities as places where illegal foreigners may be detained pending deportation, in accordance with international standards requiring separation from the general prison population. Detention without such a determination is unlawful.

The Court made several significant obiter observations: (1) It noted with approval international human rights standards and UN Special Rapporteur reports emphasizing that irregular migrants are not criminals per se and should not be treated as such, and that they should be detained separately from persons imprisoned for criminal offenses. (2) The Court observed that international instruments and best practice dictate that illegal foreign nationals are particularly vulnerable and should be kept apart from the general prison population. (3) The Court suggested that a determination by the Director-General under section 34(1) should be publicly proclaimed as this is vital for certainty and effective administration according to constitutional and international standards. (4) The Court expressed reservations about the trial court's ready acceptance of evidence from officials that they explained rights (including consular access) to each appellant, describing evidence about telephonic interpretation as "ludicrous." (5) The Court noted that detention has not been shown to reduce migration anywhere in the world. (6) The Court emphasized the constitutional context, noting public concerns about illegal immigration and xenophobic attacks, while stressing the imperative to uphold constitutional norms and do justice according to constitutional standards despite logistical difficulties faced by the Department.

This case is significant in South African immigration law because it establishes strict compliance requirements with section 34(1) of the Immigration Act 13 of 2002, affirming that the principle of legality requires a formal determination by the Director-General of Home Affairs regarding the manner and place of detention of illegal foreigners pending deportation. The judgment emphasizes that illegal foreign nationals are vulnerable persons entitled to constitutional protection and must be treated in accordance with international human rights standards. It aligns South African law with international best practice that migrants in irregular situations should not be detained in ordinary criminal facilities but in designated facilities that meet prescribed standards protecting their dignity and human rights. The decision makes clear that the State cannot simply detain illegal foreigners in any available facility but must comply with the statutory requirement for a Director-General's determination, which should be publicly proclaimed for certainty and effective administration. This imposes important practical obligations on the Department of Home Affairs in managing immigration detention.