By reaching consensus on various contentious provisions of the Immigration Amendment Bill, the Portfolio Committee on Home Affairs has moved a step closer to passing the Bill into law. During a scheduled meeting, the committee agreed on the interest-of-justice criterion, which spells out a procedure that immigration officers must follow when making a detention decision on a suspected undocumented immigrant.
The Bill was necessitated by a Constitutional Court judgement that ordered Parliament to pass a new law protecting the rights of detained undocumented immigrants after sections of the Act relating to the detention of undocumented immigrants were found to be unconstitutional.
“There were varying views on where to codify the interest-of-justice criterion, but today we have resolved the matter and agreed as the committee that the Bill’s regulations represent the ideal location to codify the criterion. This takes us a step further in considering the Bill and ensures that it is in line with the Constitutional Court judgement,” said Mr Mosa Chabane, the Chairperson of the committee.
The decision on the regulations was premised on two important considerations, firstly, because the department’s standard operating procedures are inaccessible to the public, they can be amended without extensive consultation. Secondly, the committee highlighted that by ensuring that the criterion is in the regulations, Parliament will be able to do oversight over the implementation of the criterion.
Meanwhile, the committee noted and welcomed submissions made by stakeholders on the need for the Bill to include protection of the rights of undocumented, unaccompanied migrant children. Also, there were concerns that the bill’s one-size-fits-all approach may not adequately address the specific needs of vulnerable groups, including women, children, and those with limited legal access. Concerns have been raised that the bill may disproportionately disadvantage these groups.
But the committee was of the view that a broader overhaul of the immigration legislation would be catered for in the process to review the White Paper on Citizenship, Immigration and Refugee Protection.
““The committee reiterates its view that the White Paper is even more urgent now to ensure policy certainty on immigration issues, hence its call for the department to expedite its processing. To avoid a piecemeal approach to legislation development, the White Paper should provide a clear framework of the migration system in the country.
Due to the decision on the interest-of-justice criterion requiring an amendment of Section 7 of the principal Act, which is not in the Bill, the committee will write to the National Assembly in line with NA Rules 286 (4)(c) to seek permission to amend a section of the principal Act that is not in the Bill.
The committee has mandated the Parliament’s Legal Unit, in consultation with the Office of the State Law Adviser, to draft the A List Bill for consultation by the committee.
Malatswa Molepo
5 June 2025
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