Immigration nightmare for 11-year-old boy

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It's a story that has upset me more than I’ve been in a while - an 11-year-old child detained for four-and-a-half hours by immigration in Johannesburg because of a simple glitch in his visa that was not his fault to begin with.

Let me paint the picture for you. 

Eleven-year-old *Sam has South African parents who lived overseas at the time of his birth, meaning that he’s effectively foreign and travels on a foreign passport. His mother now still lives overseas but his father is back in South Africa and Sam travels regularly between the two parents.

When he was here last year, he fell ill and overstayed his allotted thirty days in South Africa by two weeks. His father then provided immigration with all Sam’s medical records and doctor’s reports and the reason for him overstaying here, but he was unaware that these documents were never processed by immigration, which would have meant that this blot on his passport record would have been expunged.

Cut to a year later and Sam arrives in South Africa to spend the Christmas holidays with his dad, only to be detained at immigration at OR Tambo International Airport because his passport was flagged with this visa issue. But, of course, our very efficient and friendly immigration officers at OR Tambo didn't tell the child any of this. They take him into a room where he is kept for four-and-a-half hours and given only a packet of crisps in that time. Despite having travel documents that explicitly lists his father’s details, his parent is not called and made aware of what is happening. So the child had to just sit there and endure the trauma of not knowing what was going to happen to him while the immigration officers went about their day. 

His father, in the meantime, waiting just fifty meters from where the child was being held, although not knowing this was going on, started to panic and inquire about the whereabouts of his son. Eventually he got hold of the airline on which the child flew and only then was he made aware of the fact that his minor child was being detained and told why. And so began his futile attempt to get immigration to listen to his explanation and investigate its legitimacy. I spoke to the father on condition of anonymity because his son has to fly back overseas soon and he doesn’t want him to be victimised by this department when he leaves. The father says his treatment by immigration was most unprofessional and the officers were belligerent, one even laughing at him as he tried to plead with her to allow him to be with his child.

Wesley Matthew, a writer on the blog savisas.com, says: “In recent times, the Department of Home Affairs has held an almost omnipotent position in South African society. Frustrated citizens and foreigners alike have encountered the Department’s perceived lack of respect for the rule of law.”

He also says: “The South African Immigration Act No.13 of 2002 provides immigration officials with rather wide-ranging powers when it comes to the arrest, detention and deportation of illegal foreigners. In some instances, these powers have been abused.” And that is exactly what has happened here.

My issue with this story is not with the visa debacle, but the fact that a minor child was held with no information or explanation and without adult representation. I believe immigration failed in their duties because they didn’t actually follow the law. The first thing they should have done was contact the adult responsible for the child and advise him on what was going on. Secondly, the child should have been handled by an officer with extensive training in child care, not by some fool who handed him a packet of crisps and left him in a room with no explanation of what was happening.

The father told me that his child was notably traumatised by this experience and was visibly upset and hungry when they were finally reunited, without even an apology.

I chatted to Marc Hardwick from the Guardian about the issue and he said that: a child, in terms of the Child Justice Act, may not be detained. Their parents need to be contacted as soon as possible, failing which, a social worker needs to be contacted immediately. But Marc says, sadly, this is only the theory. In practice resources can be challenging. But he says this should not be the excuse. Very often these departments default to the resource argument. If they have, for at least the last ten years, been able to identify the problem, why is it not rectified?

Additionally, this failure to rectify it is impacting the child, whose rights are not only protected in this space, by statutory law, but are constitutionally protected in South Africa. It is also defined in the African Charter on the Rights and Welfare of Children and the UNCRC (United Nations Convention of the Rights of a Child). Incidentally, South Africa was a signatory on both these charters, which was signed in 1995.

I also chatted to clinical psychologist Francois De Marigny about this case and he said that any child travelling alone and faced with these circumstances will experience distress and trauma, but the extent of it will depend on the resilience of the child. He said departments like immigration that experience these kinds of issues that involve children should have personnel that are able to handle the situation more sensitively than it appears to have been handled here. He said this child should have been handled by a trained professional – not necessarily a psychologist – but certainly a counsellor. De Marigny also said the department could employ the services of a counsellor on an “on call” basis, where two or three counsellors are available to facilitate the needs of the child in instances like this.

According to savisas.com, if you find yourself in a position where you suspect your rights are being infringed as a foreigner, it is advisable to contact a firm of attorneys in order to gain clarity. It goes without saying that officials are well within their rights to deport illegal foreigners, provided they do so through the correct channels. And if you have been deported and banned from South Africa, but wish to fight the decision, you can do so by way of a visa overstay appeal for South Africa.

I am going to give immigration their right to reply and a chance to tell me their side of the story in a future show. But right now, the child and his parent are terrified that the child could be victimised by this department when he returns home later this month. I will keep my finger on the pulse of this story and bring you an update in due course. 

*Not his real name

Do you wish to engage with Terence Pillay on this story or others? You can contact him at [email protected] or follow him on Twitter: @terencepillay1 and tweet him your thoughts.

Also read: Raging on the road

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