Xenophobia: S’Africa intensifies crackdown on illegal immigration

South Africa has significantly escalated its immigration enforcement, resulting in over 40,000 arrests of undocumented foreign nationals this year, with more than 7,400 arrests occurring in the last month alone. This intensified crackdown, driven by the Inter-Ministerial Committee on Migration, aims to bolster border security, enforce the rule of law, combat corruption, and refine legislative frameworks. While authorities assert these actions are crucial for national security and economic stability, the campaign operates against a backdrop of persistent xenophobic sentiment and raises critical legal questions regarding due process, human rights, and the distinction between economic migrants and asylum seekers under South African and international law.

South Africa is currently experiencing a dramatic surge in immigration enforcement, with authorities reporting the arrest of over 40,000 undocumented foreign nationals since the beginning of 2026, including more than 7,400 in the past month. This nationwide crackdown, spearheaded by the Inter-Ministerial Committee (IMC) on Migration, signals a concerted effort by the government to tighten border controls and accelerate repatriations. The stated objectives include strengthening border security, enforcing the rule of law, combating corruption within the immigration system, and refining legislative frameworks to manage irregular migration more effectively.

This intensified enforcement, however, is unfolding amidst a complex socio-political landscape marked by recurring xenophobic sentiment and violence against foreign nationals. While the government emphasizes its commitment to lawful migration management and has condemned vigilantism, the sheer scale of arrests and repatriations necessitates a close examination of the legal framework governing immigration in South Africa. This article will delve into the statutory provisions, relevant case law, and constitutional safeguards that apply to undocumented migrants and asylum seekers, highlighting the implications for legal practitioners navigating this evolving enforcement environment.

South Africa's immigration landscape is primarily governed by the Immigration Act 13 of 2002, as amended, which regulates the admission, residence, and departure of persons from the Republic. This Act grants extensive powers to immigration officers to detect, detain, and deport individuals deemed to be "illegal foreigners" – persons in the country without proper authorisation. Complementing this is the Refugees Act 130 of 1998, which gives domestic effect to international legal instruments, principles, and standards relating to refugees, providing for the reception of asylum seekers and regulating the recognition of refugee status.

The historical context of migration in South Africa, particularly post-apartheid, has seen a significant influx of individuals from across the African continent, drawn by economic prospects and stability. However, this has also been accompanied by a rise in anti-foreigner sentiment and xenophobic violence, often fueled by socio-economic pressures such as unemployment and competition for resources. The government's current "Comprehensive Approach for Migration Management" seeks to address these challenges through a five-point strategy, including strengthening border security and cracking down on immigration and labour law violations. President Cyril Ramaphosa has explicitly stated that only authorised state officials may enforce immigration laws, condemning unlawful attempts by private individuals or groups to do so.

The intensified crackdown on undocumented migrants in South Africa, while framed as an enforcement of the rule of law, must be scrutinised against the backdrop of constitutional rights and international obligations. The Immigration Act 13 of 2002 empowers immigration officers to request identification (Section 41) and to detain and deport "illegal foreigners" (Section 34). However, this power is not unfettered. The South African Constitution guarantees fundamental rights to "everyone," including non-citizens, such as the right to freedom and security of the person, and the right not to be detained without trial.

Crucially, South African courts have affirmed the necessity of judicial oversight in immigration detention. In *Lawyers for Human Rights v Minister of Home Affairs and Others*, parts of Section 34(1)(b) and (d) of the Immigration Act were declared unconstitutional for permitting detention for 30 days without automatic judicial intervention and for extending detention without the detainee appearing in person before a court. This ruling underscores that all detentions for deportation must be subject to judicial review within 48 hours of arrest. Furthermore, detention for deportation purposes should generally not exceed 120 days.

A significant legal distinction exists between economic migrants and asylum seekers. The Refugees Act 130 of 1998 provides protection for individuals fleeing persecution. South African jurisprudence, notably in cases like *Ashebo v Minister of Home Affairs and Others 2023 (5) SA 382 (CC)* and *Lembore and Others v Minister of Home Affairs and Others [2024] 2 All SA 113 (GJ)*, has clarified that detention or deportation under the Immigration Act cannot proceed until the asylum process under the Refugees Act is completed. While expressing an intent to apply for asylum does not automatically guarantee release from detention, applicants must demonstrate "good cause" for illegal entry or delayed application to be released and proceed with their asylum claim. This harmonisation of the two Acts is vital to prevent refoulement and uphold international refugee law principles.

The broader context of xenophobia also presents legal challenges. While the government has condemned xenophobic acts and affirmed that only state officials can enforce immigration laws, as highlighted by President Ramaphosa and the High Court ruling in *Kopanang Against Xenophobia & Others v Operation Dudula & Others*, the intensified crackdown risks exacerbating anti-foreigner sentiment if not managed carefully with strict adherence to human rights. Legal practitioners must be vigilant in ensuring that individuals, regardless of their immigration status, are afforded their constitutional rights, including access to legal representation, humane detention conditions, and the right to challenge the lawfulness of their detention or deportation.

South Africa's intensified crackdown on illegal immigration, marked by tens of thousands of arrests, signals a robust commitment to enforcing its immigration laws and securing its borders. For legal practitioners, this environment necessitates a heightened awareness of the nuanced interplay between the Immigration Act 13 of 2002 and the Refugees Act 130 of 1998, alongside the overarching constitutional protections afforded to all persons within the Republic. The emphasis on judicial oversight for detention and the procedural safeguards for asylum seekers remain critical avenues for challenging potentially unlawful state action.

Practitioners representing foreign nationals must ensure strict adherence to due process, including challenging detentions exceeding 48 hours without judicial review, advocating for the right to legal representation, and asserting the non-refoulement principle for asylum seekers. The ongoing efforts to combat corruption within the immigration system and the government's condemnation of xenophobic vigilantism, while positive, require continuous monitoring to ensure that enforcement actions do not inadvertently infringe upon fundamental human rights. As the government continues to refine its migration management strategy, legal professionals will play an indispensable role in upholding the rule of law and safeguarding the rights of vulnerable populations.