The South African government has made it clear that private individuals are not permitted to conduct identity checks on foreign nationals. That position inevitably raises an important migration governance question.
Are all undocumented immigrants illegal in South Africa?
No.
Being undocumented does not automatically determine the legal outcome of every immigration case. The South African law requires the state to distinguish between people who are unlawfully present and those who may still have lawful claims requiring determination.
The Inter-Ministerial Committee (IMC) on Migration, the government body coordinating South Africa’s response to migration, made this point clear during its media briefing today. The Minister of Justice explained that more than 100 undocumented immigrants who presented themselves at a repatriation centre in Durban were not immediately deported or voluntarily repatriated because the government first had to determine whether they had a lawful basis to remain in South Africa.
The practical implication is important.
This confirms that there is no blanket deportation currently underway. South Africa’s constitutional and international obligations require the government to determine whether a person has a legitimate claim to asylum or refugee protection before enforcing removal.
That is not amnesty. It is due process and the legal protection afforded to people whose claims must first be determined in accordance with the law.
The IMC also strongly condemned illegal actions by isolated groups conducting identity checks on foreign nationals in South Africa, reaffirming that the enforcement of immigration law remains the responsibility of the state.
South Africa is not unique in facing migration governance challenges. Pakistan, for example, is currently implementing the return of Afghan nationals under its own immigration framework. While every country’s legal obligations and circumstances differ, the underlying principle remains consistent: governments have both the right and the responsibility to regulate migration while complying with their domestic and international legal obligations.
Migration governance therefore requires balance. Governments must protect the integrity of their immigration systems while ensuring that constitutional safeguards, international obligations, and due process are respected.
“Do not take the law into your own hands.” — Inter-Ministerial Committee (IMC) on Migration (SAnews.gov.za).
What should be intensified is ensuring that immigration laws are enforced by the state—not by private individuals.
GI Advisory is a MoU partner of the Civilian Secretariat for Police Service and an official policy implementation partner of the Department of Justice and Constitutional Development on migration governance and violence prevention.
Image source: South African Government News Agency
