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Pretoria says it spent millions transporting and accommodating tens of thousands of African migrants returning home. But a request for reimbursement is not automatically the same as a legally enforceable debt.
JOHANNESBURG, South Africa — South Africa has asked Nigeria, Malawi and Ethiopia to reimburse costs incurred in returning thousands of their nationals home, raising a significant legal and diplomatic question over who should pay when migrants are deported or voluntarily repatriated.
South Africa’s Department of Home Affairs told lawmakers that the country had spent nearly $18 million on accommodation, transportation, temporary repatriation centres, staff overtime and related expenses during a recent surge in migrant departures.
The Department of International Relations and Cooperation subsequently sent written requests to Nigeria, Malawi and Ethiopia seeking reimbursement, according to officials cited by The Associated Press.
But describing the development simply as South Africa “imposing an $18.5 million bill” on the three countries risks overstating the legal position.
South Africa unquestionably has powers under its domestic immigration law to arrest and deport people who are unlawfully in the country, subject to legal safeguards.
What is less straightforward is whether South Africa can compel another sovereign African government to reimburse those expenses merely because the people concerned are citizens of that country.
More Than 80,000 People Returned or Were Deported
South African authorities say 82,875 people have either been voluntarily repatriated or deported during the recent migration enforcement period.
Figures supplied separately by migrants’ home governments put the number of people who have returned at more than 178,000, illustrating differences in how the movements are being counted.
Most of the departures were reportedly voluntary repatriations rather than forced deportations.
Zimbabwe alone reported more than 115,000 returns, while Malawi reported more than 56,000. Nigeria, Ghana, Mozambique and Lesotho have also recorded returning nationals.
South Africa says the scale of the movement created substantial unplanned expenditure.
Home Affairs Director-General Tommy Makhode described the costs as unforeseen and unavoidable, according to the AP report.
The dispute over South Africa migrant repatriation costs has raised an important question: can Nigeria, Malawi and Ethiopia legally be compelled to reimburse South Africa?
First Legal Question: Can South Africa Deport Undocumented Migrants?
Yes — subject to the law.
South Africa’s Immigration Act 13 of 2002 provides the statutory framework governing illegal foreigners, detention and deportation.
Section 34 specifically deals with the deportation and detention of illegal foreigners and provides immigration officers with legal powers in circumstances prescribed by the Act.
That means South Africa does not need permission from Nigeria simply to enforce its own immigration laws against a Nigerian who has no lawful right to remain in South Africa.
The same principle applies to nationals of other countries.
However, immigration enforcement remains subject to South African constitutional law, judicial oversight and applicable human-rights obligations.
A state’s right to control immigration does not give authorities unlimited power over migrants.
Deportation and Voluntary Repatriation Are Different
This distinction is crucial to understanding the dispute.
Deportation normally involves the state compelling a person who has no lawful right to remain to leave its territory.
Voluntary repatriation, by contrast, involves a person agreeing or choosing to return to his or her country of nationality, sometimes with government or humanitarian assistance.
The current South African situation includes both categories, but reports indicate that voluntary returns account for the majority of departures.
That distinction could matter when determining who should ultimately bear transportation and associated costs.
The legal controversy surrounding South Africa migrant repatriation costs therefore depends on the applicable agreements, domestic laws and international obligations.
Does Nigeria Have a Duty to Accept Its Citizens Back?
As a general principle of international relations, a country is expected to receive its own nationals when their nationality has been properly established and they are lawfully returned.
Nigeria therefore cannot ordinarily insist that a confirmed Nigerian citizen has a permanent right to remain in South Africa merely because Nigeria would prefer not to receive that person.
But the obligation to receive one’s citizen is a different legal question from an obligation to pay another government every expense associated with returning that citizen.
Those two issues should not be confused.
Can South Africa Simply Send Nigeria a Bill?
South Africa can certainly request reimbursement.
That is what it has reportedly done.
But a diplomatic request for payment does not, by itself, demonstrate that Nigeria owes an automatically enforceable international debt.
Whether Nigeria is legally required to pay would depend on the legal basis relied upon by South Africa.
That could include a bilateral agreement, treaty, memorandum of understanding, prior undertaking, cost-sharing arrangement or another binding commitment between the governments.
South Africa maintains bilateral relationships with African countries through formal diplomatic mechanisms and agreements.
If a relevant agreement says the country of nationality must pay repatriation expenses, South Africa would have a considerably stronger legal claim.
Without such an agreement, the demand may operate primarily as a diplomatic reimbursement request that must be negotiated between sovereign states.
Citizenship Alone Does Not Automatically Create an Invoice
Consider a Nigerian citizen who overstays a South African visa.
South Africa may have legal authority to arrest, process and deport that person under its immigration laws.
But it does not necessarily follow that every rand South Africa spends on police operations, detention, accommodation, administration or transportation automatically becomes a debt owed by the Nigerian government.
Those expenses arise partly from South Africa’s exercise of its own immigration-enforcement responsibilities.
The more difficult issue is whether particular repatriation costs were incurred because Nigeria or another government requested assistance, agreed to reimburse South Africa or could not arrange transportation for its own citizens.
That is likely to become important if the governments dispute the amounts requested.
What Do South Africa Migrant Repatriation Costs Cover?
According to South African officials, the expenditure included:
- buses used to transport migrants;
- temporary repatriation centres;
- accommodation;
- staff overtime; and
- other administrative and logistical costs.
Some South African municipalities and government departments are themselves reportedly seeking compensation from the Department of Home Affairs because the expenses were not originally included in their budgets.
Related: Step Rights has previously examined concerns surrounding the protection and treatment of Nigerian citizens in South Africa.
That introduces another question:
Should foreign governments pay every expense South Africa incurred, or only the direct cost of transporting their nationals home?
That would likely depend on whatever legal or diplomatic arrangement governs reimbursement.
Nigeria Could Ask for a Detailed Breakdown
If Nigeria receives a reimbursement demand, it would be reasonable for the government to determine:
How many Nigerian citizens were involved?
How was their nationality verified?
How many were forcibly deported and how many voluntarily requested repatriation?
What transportation arrangements were made?
Which expenses relate specifically to Nigerians?
Was Nigeria consulted before the expenses were incurred?
Was there an agreement that Nigeria would reimburse those expenses?
And how was Nigeria’s share of the overall cost calculated?
These are important questions because South Africa’s reported expenditure covers migrants from several countries.
Nigeria should not automatically be responsible for expenses generated by nationals of other states.
Human Rights Still Apply During Immigration Enforcement
The financial dispute is occurring against a more troubling background.
South Africa has experienced heightened tensions over immigration, including protests and attacks directed at foreign nationals.
Anti-migration organisations have blamed migrants for unemployment, crime and pressure on public services, while migrant communities and several African governments have expressed concerns over safety.
South African authorities have also intensified immigration enforcement.
Nearly 60,000 people described by authorities as being in the country illegally have reportedly been arrested, including more than 16,000 in July alone.
South Africa has a legitimate right to enforce immigration law.
But undocumented migration does not remove a person’s basic human dignity.
Migrants remain entitled to protection against unlawful violence, arbitrary treatment and other abuses.
Deportation Must Not Become Collective Punishment
Another important principle should remain clear.
A government may enforce immigration law against individuals who lack permission to remain in the country.
That is different from treating an entire nationality or migrant community as responsible for unemployment, crime or other social problems.
Criminal responsibility is individual.
If a Nigerian commits a crime in South Africa, that individual can be investigated and prosecuted according to law.
Other Nigerians do not become criminals merely because they share the same nationality.
Similarly, undocumented status is an immigration issue and should not automatically be equated with violent criminality.
Why This Matters for Nigeria
For Nigeria, the issue extends beyond the money being requested.
Thousands of Nigerians live, work and conduct businesses in South Africa.
Relations between the two countries have periodically been strained by attacks on foreign nationals and disputes surrounding migration.
The latest reimbursement request therefore requires both legal and diplomatic management.
Nigeria has a responsibility toward its citizens abroad, including facilitating documentation and lawful return where appropriate.
South Africa also has the sovereign authority to regulate who may enter and remain within its territory.
Neither principle gives either government unlimited authority.
Step Rights Legal Insight
The most important legal distinction in this controversy is simple:
South Africa’s right to deport a Nigerian is not necessarily the same thing as South Africa’s right to make the Nigerian government pay for that deportation.
The first question is governed principally by South African immigration law.
The second depends on international agreements, diplomatic arrangements and the particular circumstances surrounding the expenditure.
South Africa has reportedly requested reimbursement from Nigeria, Malawi and Ethiopia.
That should not automatically be reported as though a court or international tribunal has already determined that the three countries owe South Africa nearly $18 million.
Until the precise legal basis for compulsory reimbursement is established, the more accurate description is that South Africa is seeking payment.
Nigeria should therefore examine the request, determine the number of Nigerians involved, demand a detailed breakdown of expenses and establish whether any binding agreement requires reimbursement.
At the same time, all countries have an interest in cooperating on the orderly return of their nationals where those individuals no longer have a lawful right to remain abroad.
Migration enforcement and human dignity do not have to be opposing principles.
Countries can protect their borders while respecting migrants’ rights — and financial disputes between governments should be settled through law and diplomacy, not inflammatory rhetoric directed at African migrants.
Step Rights Magazine — Human Rights | Legal Education | Justice | Accountability
This article provides general legal and public-policy analysis and should not be interpreted as legal advice concerning an individual immigration case.
