Parliament Calls On Departments to Implement Initiatives to Tackle Illegal Migration

The South African Parliament's Portfolio Committee on Home Affairs has urged government departments to urgently implement President Cyril Ramaphosa's initiatives to combat illegal migration. This call comes amidst heightened anti-foreigner sentiment and aims to strengthen border management, enhance law enforcement, and address corruption within the immigration system. The directives underscore the state's commitment to upholding the rule of law while balancing national security with human rights obligations, necessitating a coordinated, government-wide response to the complex challenges posed by irregular migration.

The Chairperson of the Portfolio Committee on Home Affairs, Mosa Chabane, has recently issued a strong call for all government departments to urgently implement the plans outlined by President Cyril Ramaphosa to address illegal migration in South Africa. This directive is not merely a procedural formality; it underscores a critical national imperative, particularly as many of these initiatives have already been incorporated into the annual performance plans of various departments. The Committee emphasised that a failure to implement these measures would undermine the authority of the Head of State and exacerbate existing challenges.

President Ramaphosa has consistently articulated the government's commitment to dealing decisively with illegal immigration, acknowledging the strain it places on public services, the distortion it causes in the labour market, and the risks it poses to social stability and national security. However, he has also cautioned against xenophobia and vigilantism, stressing the importance of upholding the Constitution and the human dignity of all individuals within the country's borders. This article will delve into the existing legal framework governing migration in South Africa, analyse the persistent challenges in its implementation, and explore the implications of these renewed calls for action for legal practitioners navigating this intricate and often contentious area of law.

South Africa's approach to migration is primarily governed by a dual legislative framework: the Immigration Act 13 of 2002 and the Refugees Act 130 of 1998. The Immigration Act provides the overarching regulatory structure for the admission, residence, and departure of all persons from the Republic. Its stated objectives include ensuring the expeditious issuance of temporary and permanent residence permits based on clear criteria, satisfying national security considerations, strengthening border monitoring, and effectively deterring illegal immigration. Furthermore, the Act aims to facilitate economic growth by ensuring the economy has access to needed contributions from foreigners, particularly skilled labour and investment.

Complementing this, the Refugees Act gives domestic effect to international legal instruments, principles, and standards relating to refugees, including the 1951 Convention Relating to the Status of Refugees, its 1967 Protocol, and the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa. This Act outlines the process for the reception of asylum seekers, the regulation of their applications, and the recognition of refugee status, thereby establishing a comprehensive protection framework. More recently, the Border Management Authority Act 2 of 2020 established the Border Management Authority (BMA), which commenced operations in phases from 2021 to 2022. The BMA's mandate is to achieve integrated and coordinated border management, prevent illegal cross-border movement, and combat smuggling and human trafficking, thereby consolidating functions previously dispersed across multiple state organs. These statutory instruments operate within the constitutional imperative to uphold human rights, including the rights to dignity and administrative justice, which extend to all persons within South Africa, irrespective of their nationality or immigration status.

The legal landscape concerning migration in South Africa necessitates a clear distinction between an 'illegal foreigner' and an 'asylum seeker.' An 'illegal foreigner' is defined as a person in the country without authorisation under the Immigration Act, such as those who have overstayed their visa or entered without permission. In contrast, a 'refugee' is an individual granted asylum or awaiting confirmation of refugee status under the Refugees Act due to a well-founded fear of persecution. The Immigration Act provides robust enforcement mechanisms, with Section 32 mandating that any illegal foreigner must depart the country unless specifically authorised by the Director-General to remain. Section 34 empowers immigration officers to detain and deport illegal foreigners without a warrant, with initial detention periods of up to 30 days, extendable to 90 days, though such detentions are subject to judicial oversight. Furthermore, Section 41 authorises officers to request identification to verify residency status, and Section 49 outlines various offences, including unauthorised entry and overstaying, which carry penalties ranging from fines to imprisonment. Employers also bear significant obligations under Section 98, prohibiting the employment of illegal foreigners or those whose visas do not authorise their specific work.

The interplay between the Immigration Act and the Refugees Act has been a frequent subject of judicial interpretation. Crucially, the Refugees Act generally supersedes the Immigration Act when an individual expresses an intention to seek asylum. The Constitutional Court in *Ruta v Minister of Home Affairs* (2019) established that detention or deportation under the Immigration Act cannot proceed until the asylum process under the Refugees Act is completed. However, subsequent judgments have refined this position. In *Ashebo v Minister of Home Affairs and Others* (2023), the Constitutional Court clarified that merely expressing an intent to apply for asylum does not automatically entitle an illegal foreigner to release from detention; an opportunity for an interview to ascertain valid reasons for not possessing an asylum transit visa is required. Similarly, *Lembore and Others v Minister of Home Affairs and Others* (2024) affirmed that detention under the Immigration Act remains lawful until an applicant demonstrates good cause for their illegal entry or delayed asylum claim. A recent significant victory for the Department of Home Affairs came in *Director-General, Department of Home Affairs and Others v Irankunda and Another* (2026), where the Constitutional Court prohibited repeat asylum applications once an original application has been finally determined, aiming to curb abuse of the asylum system. The principle of judicial oversight over detention, as affirmed in *Lawyers for Human Rights v Minister of Home Affairs and Others*, remains paramount, ensuring that sections 12(1) and 35(2)(d) of the Constitution, guaranteeing freedom and security of the person and the right to challenge the lawfulness of detention, apply to all persons.

Despite a robust legal framework, implementation faces significant hurdles. Corruption is consistently identified as a major factor undermining the effective enforcement of immigration laws. Porous borders, insufficient immigration controls, and administrative capacity issues within the Department of Home Affairs contribute to the challenge of managing the influx of undocumented migrants. This situation places considerable strain on public services and distorts the labour market, as some employers exploit undocumented, cheaper foreign labour. In response, President Ramaphosa's plans, which the Portfolio Committee now urges departments to implement, include strengthening border security, increasing the number of labour and immigration inspectors, intensifying the fight against corruption, and fostering greater cooperation with other African countries on migration-related matters. The Border Management Authority is central to these efforts, aiming to enhance integrated border management capabilities.

The parliamentary call for urgent and coordinated implementation of President Ramaphosa's directives on illegal migration signals a renewed governmental focus on enforcing South Africa's immigration and refugee laws. For legal practitioners, this heightened emphasis on enforcement carries significant implications. Attorneys must be acutely aware of the nuanced interplay between the Immigration Act and the Refugees Act, particularly concerning the detention and deportation of foreign nationals and the procedural requirements for asylum applications. Advising employers on their obligations under Section 98 of the Immigration Act to avoid employing undocumented foreigners will become even more critical, given the stated intent to increase inspections and prosecutions.

Practitioners should anticipate an increase in cases involving detention, deportation, and challenges to administrative decisions. The recent Constitutional Court judgments, such as those prohibiting repeat asylum applications and clarifying the conditions for release from detention, will be vital precedents. Lawyers will need to remain vigilant in ensuring judicial oversight in all detention matters, upholding the constitutional rights of all individuals. Looking ahead, practitioners should monitor developments related to the Border Management Authority's operationalisation, ongoing anti-corruption initiatives within the Department of Home Affairs, and any further legislative or policy amendments, including the Revised White Paper on Citizenship, Immigration and Refugee Protection. The emphasis on regional cooperation also suggests a potential shift towards more harmonised approaches to migration across the continent, which could influence future domestic policy and practice.