Denial of entry

24 August 2022 19:00 by Merilyn Kader

In Breukel and Another v Department of Home Affairs and Another [2022] 2 All SA 787 (WCC), holding facility detention and legal justification preventing a foreigner from entering South Africa pending review finalisation.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Immigration - Denial of entry of foreigner into country: In Breukel and Another v Department of Home Affairs and Another [2022] 2 All SA 787 (WCC), the second applicant (Ms Serrano) was a citizen of Venezuela who was in a permanent life partnership with a SA citizen (Ms Breukel).

Ms Serrano travelled to South Africa (SA) in December 2021. She was denied entry by immigration officials because her passport contained an extension document used by the Venezuelan government to extend the validity of the passport. The applicants adduced evidence showing that the Venezuelan government has for several years not issued new passports to replace expired passports. Instead, it renews passports by inserting an extension document into the expiring passport.

On being denied entry, Ms Serrano was detained in a holding facility. After consulting with a lawyer, she lodged an application in terms of s 8 of the Immigration Act 13 of 2002 to review the decision denying her entry into the country. The applicants applied to have Ms Serrano released from custody, and for her to be allowed into SA pending the Minister’s decision on her application. The court granted an interim order allowing Ms Serrano to reside with Ms Breukel, while she waited for the decision. That led to the respondents launching a reconsideration application. In that application, they also raised various technical points including that the applicants did not comply with the provisions of s 35 of the General Law Amendment Act 62 of 1955 by not providing the respondents with at least 72 hours’ notice of the proceedings to be instituted; and that Ethiopian Airlines was not joined as an interested party.

It was held that while s 35 of the General Law Amendment Act is peremptory, a court is given the discretion to allow a lesser period of notice depending on the circumstances. Given the urgency found to have existed, the period of notice given to the respondents was reasonable in casu. The non-joinder point was also dismissed as at the stage when the main application was launched, Ms Serrano was in the custody of the Department of Home Affairs.

On the merits, the court discussed s 35(10) of the Immigration Act 13 of 2002, which states that the person in charge of the conveyance is responsible for the detention and removal of any person who was on the conveyance but is refused admission into the Republic. However, Ethiopian Airlines ceased being responsible for Ms Serrano when immigration officials removed her to consult with her attorney and then detained her in a holding facility. From then on, the Department was the entity responsible for her.

The main issue for determination was whether there was legal justification for permitting Ms Serrano to enter the country while she persisted with her review application. The court found that a case had been made out for Ms Serrano’s release from the holding facility and her entry into SA pending the finalisation of the review.

Merilyn Rowena Kader
Legal Editor at LexisNexis