THE IMPACT OF ILLEGAL IMMIGRANTS IN SOUTH AFRICA: AS LEGALISSUE CRITICAL ANALYISIS

INTRODUCTION

Illegal immigrants take place when there are undocumented citizens residing in country without legal authorization under immigration law. This happens when non-citizens enter the country illegally or overstay their visit regarding the terms of a valid visa or permit. In South Africa illegal immigration remains one of the most controversial issues in contemporary legal and public discourse, because it sits at the intersection of immigration control, constitutional rights, state sovereignty, and human dignity. In recent years, the has been growing of immigration in South Africa from other African states which has intensified debates about the presence and impact of undocumented immigrants. South Africa has been a recipient of not just African immigrants but also other parts of the world.

According to Forced Migration Studies Programme (FMSP)(2010:3), immigrants account for 3-4% of the total population which is approximately 2 million Zimbabweans which is the largest group account for1-1.5 million of the total immigrants, The number of international migrants worldwide, including refugees, asylum seekers, and clandestine migrants, is estimated at 120 million. In addition, it is believed that a further two million join this figure each year[1] This has increased the population increase in population affects economic status especially in relation to employment, crime, housing, healthcare, and access to public services, this is due to the fact of how rapidly the population tend to rise. From a legal perspective the issue is not just about whether undocumented immigration has effects. It’s about how they violate the rules of jurisdiction. This article will analyze how the South African government responds to it within the rules of the Constitution. Although the Immigration Act of 2002 although is not contained in constitution but there is legal framework that focuses on immigration laws and international human rights.

This article is divided into three parts. Part I deals with how the economy is affected by  illegal immigration. Part II deals with the legal question of how illegal immigration is a legal issue. Part III looks at how the South African government is using both jurisdiction and the constitution to address the issue or find remedies. This article argues that no country should allow illegal immigrants for any reason because it is against the law and violates jurisdiction

PART: I

THE ECONOMIC IMPACT DUE TO ILLEGAL IMMIGRATION

South African is listed as one of the most countries with higher unemployment rate. This follows as it always has increasing percentage in population. The increment is caused by groups of illegal immigrants. As the immigrants reside in this country without any legal documents that means they are not aligning with the rules of other residents. That is caused by not being captured in the system. Most of the illegal immigrants have businesses unregistered as they are illegal meaning they are not paying tax for those making a profit and legible to pay tax to the government. The regulations Avoidance of paying tax led to infrastructure improvements as the government use the deduction of tax to pay social grant, providing adequate health services for those who can’t afford private health care. The tax money is also used for improvement of infrastructure

As revealed in recent research, most of the illegal immigrants in South Africa lack more than three years of schooling as well as any skills beyond those of subsistence farming. It is common for these immigrants to be in competition with unskilled South Africans in the labor market. This is evidenced in the findings of a survey carried out by NALEDI (National Labor and Economic Development Institute), a think-tank for COSATU (Congress of South African Trade Unions), on the existence of illegal foreign workers in the sectors of agriculture, hospitality (hotels and restaurants), construction, domestic and informal trading. For this reason, the nation’s graduates are seeing higher rates of unemployment. This is a result of labor marketers using illegal immigrants for their own self-serving purposes rather than conducting business ethically.

Due to the shortage of health service if there is an increase in the demand for public health care services, the government tends to give priority to its own citizens over foreigners. The case in South Africa, where overpopulation has caused an increase in demand for health care services among the citizens has been accompanied by the protest of certain groups against foreigners accessing these services . This was confirmed during the pandemic period in 2019 which shows the government can’t afford to provide all the citizen including illegal immigrants. At urban places the children of the citizens are facing difficulties in enrolling their children due to shortage of spaces. As the illegal immigrant reside illegally, as they also have families the shortage of spaces affect the children from getting a right to education under Bill Of Rights,2013 Section 27 & 29.

PART :II

IMPLICATION OF THE ILLEGAL IMMIGRATION AS LEGAL ISSE

South Africa has a system to deal with people who’re in the country without the right papers as stated in the Immigration Act 13 of 2002. This system is trying to balance two things: the countries’ right to control who comes in and out and the rights of people to be treated fairly and with respect. The law is clear about what makes someone an “illegal foreigner” like coming into the country at the place staying too long or not following the rules. When it comes to what happens to these people like being put in detention or sent back home, the courts have had to step in many times to make sure the government is treating them especially when it comes to detention and deportation, under section 34 of the Immigration Act(2002). The courts have had to remind the government to follow the constitution and respect the dignity and liberty of these people.

Cases such as Lawyers for Human Rights v Minister of Home Affairs and Ruta v Minister of Home Affairs (2019) SCA 229 reveal certain shortcomings. Among the shortcomings is lack of adequate protection of migrants’ rights excessive use of detention and allowing small-scale immigration cases to outweigh the protection provided by the Refugees Act (1998) . Judges have observed how certain terminology, used in the Act such as “foreigner” and “undesirable” may result in hasty actions which are unfair and inappropriate. That places the responsibility on migrants to prove their rights case by case. Instead, the state should introduce oversight on detention, reliable verification of status, access to review and simple routes to regularization or asylum processing. In this way, the objectives of the law and the constitution would be in harmony. The objective of a constitution is to protect the rights of asylum seekers and refugees. The system shouldn’t be unfair to migrants.

PART:III

STEPS TAKEN BY GOVERNMENT TO SOLVE THE ISSUE

The South African after feeling fear of how the country has become. The residents came together and formed a organization called March and March. It was formed in March the founder of the organization is Jacinta Ngobese Zuma. This is done not because of xenophobia but because of tragical accidents that are involving the illegal immigrants. The activities include selling of drugs, human trafficking and selling fake stuff.

The government s announced that the Department of Home Affairs, the Border Management Authority (BMA), the South African Police Service (SAPS) and other law enforcement agencies will intensify efforts to identify and deport undocumented foreign nationals residing illegally in South Africa. He was addressing the nation on 28 June 2026, Sunday night, amid growing tensions over illegal immigration and demands that undocumented migrants leave the country. He said illegal immigration was not the cause of all the country’s challenges and problems, adding that immigration was a global issue and not one faced by South Africa alone.

The president said every person in the country must be in South Africa legally, whether they are working or operating a business. He also criticized those taking the law into their own hands and attempting to enforce immigration laws themselves There has been a surge in protests targeting foreign nationals in recent months. Anti-immigrant tensions have persisted in several parts of the country, including the Western Cape, KwaZulu-Natal and Gauteng. Some demonstrations have been led by the controversial anti-migrant group March and March, which has called on undocumented migrants to leave South Africa by 30 June, despite government appeals for calm. Some foreign nationals have already left the country amid growing fears of violence linked to the planned nationwide action at the end of June.

CONCLUSION

Controlling immigration is a vital issue regarding our national security. It helps individuals coexist in harmony and have faith in the laws. In case a state tolerates immigrants, who enter or reside illegally within its territory, it promotes a wrong message which states that breaking the law is acceptable. The government must apply its immigration legislation in a strict manner. The authorities need to check the immigration status of individuals both at the border and in the interior, to track repeat violators, as well as fine employers of those illegal workers. Those illegal aliens who are found in the country should be deported only after having a hearing where they would be able to state their viewpoint. When deporting those illegal immigrants, the government should follow the regulations and act in a fair way. Being tough regarding immigration regulations while applying them but being fair and transparent will help to protect the borders of our country in accordance with our values. Applying immigration regulations should be done in a strict manner, yet in a humane one. There should be an easy way for legal immigrants to come to our country.

RERERENCE(S):

Cases

• Lawyers for Human Rights v Minister of Home Affairs 2004 (4) 125 S A.
• Ruta v Minister of Home Affairs 2019 (2) SA 329 CC.
• Minister of Home Affairs v Watchenuka 2004 (4) SA 326 SCA.

Regulations

• Immigration Regulations ,2002, Section 7
• Income Tax Rules,2013, Rule 13

 Legislation          

• Constitution of the Republic of South Africa, 1996 ss 10, 12, 33;
• Promotion of Administrative Justice Act 3 of 2000 (PAJA).
• Immigration Act 13 of 2002 ss 9–11, 23, 41, 49;

Constitution

• Constitution of the Republic of South Africa, 1996.

Bill

• The Right to Education Bill,1996, Bill No.108 of 1996.chp 2
• The Right Adequate Health care services Bill,1996, Bill No.108 of 1996. chp2

Secondary Sources

• International Journal of Economics and Financial Issues, 2024, 14(1), 52-63