COVID-19 IMPACTS ON IMMIGRATION DETENTION: GLOBAL RESPONSES COVID-19 AND IMMIGRATION DETENTION: A SOUTH AFRICAN PERSPECTIVE The COVID-19 pandemic brought about an onset of challenges on a global scale for many states and citizens alike, particularly for the refugee, undocumented migrant, and stateless communities residing in the Republic of South Africa. This paper examines how the COVID-19 pandemic has affected South Africa’s approach to dealing with immigration detention. INTRODUCTION Immigration detention in South Africa has long been riddled with both substantive and procedural irregularities, which have been exacerbated by the COVID-19 pandemic. On 15 March 2020, President Ramaphosa declared a state of disaster under the Disaster Management Act, and announced that the government would be taking urgent and drastic measures to manage the disease. A few days later, on 21 March 2020 a nationwide lockdown was instituted under the Disaster Management Regulations. The Regulations limited certain rights and freedoms and led to the halting of service provision at a number of state departments, including Department of Home Affairs (DHA) and Refugee Reception Offices (RRO’s) responsible for migrant permit renewals1 and birth registration. In January 2020, the Refugee Act from 1998 was amended through the Refugee Amendment Acts of 2008, 2011 and 2017, which came into force with the publication of the accompanying lockdown regulations. Under the new laws, refugees and asylum seekers are given five days to process a claim once they have entered the country and register at a RRO with their transit visa. Asylum seekers are then given a limited Section 22 permit, which is to be renewed every six months while awaiting the adjudication process. The holder of a section 22 permit has the right to work and study and is protected against deportation to their country of origin. The asylum process can be long and onerous in South Africa with RRO’s often lacking the capacity to process asylum claims swiftly. The commencement of South Africa’s nationwide lockdown was accompanied by the suspension of services at RROs. Furthermore, the DHA has failed to comply with the statutory limits of detention. However, this compliance has since improved. Moreover, matters pertaining to immigration violations lack consistent and effective judicial oversight. Immigration policies have become increasingly restricted physically as well as administratively under the guise of health concerns. For example, during the pandemic, South Africa constructed over 40 kilometers of emergency barriers along its border with Zimbabwe to ensure that no undocumented or infected person crosses into the country. This imposed greater challenges for refugees and migrants along different stages of the immigration process for access to basic needs and risk of detention. COVID-19 RESPONSE: STATE ACTIONS AND POLICIES From the South African State’s response to the COVID-19 pandemic, three key policies can be highlighted as essential to the operation of immigration detention during these unprecedented times: (i) regulations governing the lockdown and border closure, (ii) regulations governing law enforcement responsibilities and (iii) closure of RRO’s and nonrenewal of permits. With RRO’s remaining closed and not renewing permits, births are not being registered and access to places of detention by lawyers is limited. On 25 March 2020, the government announced that asylum seekers whose visas expire after 16 March 2020 would not be penalized or arrested. Yet, security forces continued to arrest and deport undocumented migrants, justifying this as a measure to contain the spread of the virus. Xenophobic prejudices held by security officials have also led to the targeted harassment and arrest of foreign nationals and asylum seekers for petty offences, placing them in overcrowded detention centers where social distancing remains near impossible. The purpose of the lockdown is to curb the spread of the virus; further congesting already densely populated areas such as detention centers, police holding and correctional facilities circumvents that very purpose. As a result of some of the lockdown restrictions, courts are not able to serve the effective oversight role as they usually do and remand prisoners are often stuck indefinitely without judicial oversight. However, on 31 March 2020, Directions were issued in terms of Regulation 10 of the Regulations under the Disaster Management Act, 20022 which provided that “an accused person arrested for a petty offence must be released and warned to appear in court on a future date”. Lastly, a subsequent policy emerged in the Immigration Act 13 of 20023, “Determination of Correctional Facilities as Places of Detention of Illegal Foreigners Pending Deportation”, which designated various correctional facilities/centers as places of detention of “illegal foreigners pending deportation” for purposes of COVID-19. This policy is particularly problematic as South Africa’s borders are closed thereby preventing deportations from occurring and once again, contradicted the cause of decongesting places of detention. DISPROPORTIONATE IMPACT OF COVID-19 POLICIES ON UNDOCUMENTED MIGRANTS The implementation of the above-mentioned policies has been applied unevenly among South African citizens and non-nationals. Civil society organizations have since become aware of the disproportionate impact that the lockdown and the Regulations have had on migrant communities; this has been largely due to the criminalization of foreign nationals and asylum seekers who have violated the COVID-19 related Regulations which has resulted in a slew of human rights violations and deprivations. Further, the lack of accountability mechanisms has been highlighted through countless reports written on misconduct by law enforcement. These reports documented arbitrary arrests of validly documented non-nationals and the arrest and remand of undocumented non-nationals. Further concerns have since been raised such as the indefinite detention/remand of non-nationals as well as their continued detention after scheduled release dates. This has been observed in contrast to South African citizens who, upon arrest for violation of the Regulations, have since been released. On the other hand, in line with the prescribed Directions, almost 20,000 low risk inmates have been released from prison in order to curb the spread of the virus in prisons due to overcrowding, yet parallel to this, and as mentioned, there has been an increase in detention for migrants for petty crimes. Furthermore, there have been significant barriers in 1 Pre-COVID-19 and the national lockdown, the Department of Home Affairs was already overwhelmed with a backlog of administering permits which made life for asylum seekers even harder. 2 (GG 43107 GN 318), https://www.justice.gov.za/legislation/notices/2020/20200331-gg43191-GoN440_COGTA.pdf 3 (GG 43292 GN 512), https://edit.laws.africa/works/akn/za/act/gn/2020/512/media/publication/za-act-gn-2020-512-publication-document.pdf idcoalition.org | westernsydney.edu.au/hadri 47