Deportation was unlawful

Human rights activists have accused the Home Affairs Department of violating legislation governing the treatment of illegal foreigners after this week’s court ruling that Pakistani national Khalid Rashid was illegally detained and deported in 2005.

They also called for an immediate review of the department’s immigration policies.

The Supreme Court of Appeal (SCA) this week upheld an application, brought on Rashid’s behalf, to have his detention at the Cullinan police station on November 1 2005 and his subsequent deportation to Pakistan on November 6 declared unlawful.

“This judgment proves that the department’s immigration policies are very irregular.
We have had several judgments of this nature—the Rashid case is a drop in the ocean,” said Dosso Ndessomin, coordinator of the Body for Refugee Communities.

But Ndessomin doubted that a court judgment was sufficient to change government’s approach.

Lawyers for Human Rights’s Jacob van Garderen said that in future the department would have to consider deportation and detention cases carefully. The civil proceedings against the department over the Rashid case could be damaging.

“We expect the department to study the judgment carefully and communicate with the immigration offices [especially at border posts] to avoid similar cases,” he said.

Van Garderen said that in the past three months Lawyers for Human Rights had obtained eight court orders forcing the department to release asylum seekers who had been detained unlawfully at the Lindela Repatriation Centre.

After his arrest Rashid was handed to Pakistani officials at the Waterkloof military air base in Pretoria. He was flown to Pakistan and held in custody amid speculation that he was suspected of links with international terrorist organisations.

The SCA found that his removal from South Africa was apparently effected secretly without his relatives or friends being informed.

The court said that as an illegal foreigner Rashid was liable to arrest, but the Immigration Act required that a warrant be issued by an immigration officer for detention and removal from a place of detention.

In Rashid’s case no warrant was obtained.

The court ordered Minister of Home Affairs Nosiviwe Maphisa-Nqakula to pay the costs incurred by Ismail Ebrahim Jeebhai, a Lenasia-based businessman who started court proceedings on Rashid’s behalf, and his attorneys.

This week one of the attorneys, Zehir Omar, said he was trying to contact Rashid in Pakistan to prepare to sue the department.

“I’d be very pleased if we came to the bottom of Rashid’s removal from this country and to embark on civil proceedings against the department,” said Omar.

The SCA judgment, he said, had not elaborated on the reasons for Rahid’s deportation.

“He was surreptitiously removed from the country because he was suspected of being a terrorist. Yet today he is a free man in Pakistan. That is a disguised extradition,” he said.

In February 2007 the high court ruled that Rashid’s detention and deportation were lawfully carried out.

At the time of going to press the Mail & Guardian had not yet received a response from Home Affairs.

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