Asylum seekers win legal right to apply for SA permits

Asylum seekers win legal right to apply for SA permits
10 Oct 2018 – The Star Early Edition
ASYLUM seekers in South Africa yesterday secured a major legal victory after the Constitutional Court ruled that they were eligible to apply for visas or a temporary residence permit, even if their application for asylum was rejected.
The apex court was handing down a judgment which was brought as an appeal against the decision of the Supreme Court of Appeal (SCA), relating to applicants who had been refused visas or permits under the Immigration Act.
After her application for asylum was denied, Arifa Musaddik Fahme tried to apply for a visitor’s visa under the Immigration Act, as her husband and children were already legally living in the country, but the Department of Home Affairs refused to accept the application.
Kuzikesa Swinda and Jabbar Ahmed also used the act to apply for critical skills visas, but their applications were also denied, all because of the department’s 2016 immigration directive barring refugees and asylum seekers from applying for visas under the act.
In 2016, the Western Cape High Court declared the directive as irrational as it was arbitrary, adding that Fahme’s rights had been violated.
The court also held that there was no reason Swinda and Ahmed were barred from applying for temporary work permits if they met the requirements.
The department successfully appealed against the ruling at the SCA.
The applicants approached the Concourt, where the department argued that its officials had no discretion to accept and consider applications for visas and permits made within the borders of the country.
Yesterday, Justice Leona Theron said asylum seekers must be allowed to apply for visas or permits under the act, and that they had to be granted if they met the requirements, adding that the directive was invalid as it was against a circular that was created by the department to cater for the circumstances of refugees and asylum seekers.
The circular was withdrawn in 2016 when the directive was introduced.
“Asylum seekers are often not in possession of valid passports or identity documents and not in the position to readily obtain their documents. Within this, the department circulated the circular to its employees and instructed them to accept and consider applications for visas or permits made by asylum seekers not in position of valid passports. The purpose of the circular was to ameliorate the precarious position of asylum seekers and to afford them the opportunity to apply for visas or permits in terms of Immigration Act without a valid passport.
“It must be stressed that no administrative hurdles, relating to the possession of passports and the like, may be introduced by the department in order to disallow or discourage these kinds of applications,” Justice Theron said.

Plans to outsource visa processing are scary, former immigration official says

Sat 6 Oct 2018 – The Guardian
Fears about ‘frightening’ potential for private provider to create ‘fast and slow lanes’
Visa applicants who cannot afford the higher processing charges could end up coming to Australia on visitor visas to apply for other options onshore. Photograph: Julian Smith/AAP
A Department of Home Affairs plan to outsource visa processing will lead to increased automation and “premium” services that could undermine the integrity of the system, a former senior immigration official has warned.
Abul Rizvi, a former departmental deputy secretary, told Guardian Australia the potential for a private provider to create a fast and slow lane for processing had “frightening” long-term implications and the proposed use of applicants’ data for marketing purposes was “appalling”.
Rizvi joins the Community and Public Sector Union (CPSU) and the Federation of Ethnic Communities Councils of Australia in expressing concern about the outsourcing plan, which has not received a final sign-off from the cabinet after months of testing the market for expressions of interest.
In February Guardian Australia reported that departmental briefings to industry had revealed that a successful private bidder could offset the $1bn cost of a new visa processing system by raising revenue through “premium services for high-value applicants”, different access for those able to pay more, and “commercial value-added services”, such as offers from banks, telcos and tourist operators.
Rizvi said he was “very concerned” about the prospect of premium services because “there would inevitably be an incentive for the company to be more facilitative with regard to subjective criteria for applicants who have paid for the fast lane”.
“Any monopoly provider would want to maximise charges for the fast lane and try to drive as many applicants as possible into that lane.”
He said applicants whocould not afford the higher charges were likely to come to Australia on visitor visas and apply for other visas after arrival, exacerbating “integrity problems” caused by the existing backlog of people in Australia because of the department’s “extraordinarily poor administration”.
In July, the home affairs minister, Peter Dutton, boasted about a decline in permanent migration, despite ndustry warning that the government was “throttling back the rate of migration by stealth” through longer wait times.
Rizvi predicted that outsourced visa processing would lead to tension between the Department of Home Affairs’ increased use of “subjective criteria” for certain visas and the private operator’s desire for increased automation.
“The company or companies that win these tenders will want to automate decision-making as much as possible to minimise costs.”
Rizvi said it was appalling that “extraordinarily personal information” such as an applicant’s relationship status, job, income and health could be used by a commercial firm for marketing purposes.
The chairwoman of the Federation of Ethnic Community Councils of Australia, Mary Patetsos, said it would be “very concerned” about commercialisation of applicant information. She also opposed measures that could lead to an increased cost of visas, particularly for family and partner visas.
“Australia has a long-standing reputation for its impartial, fair and transparent immigration system,” she said. “It should not be put at risk.”
Patetsos warned that premium services “could undermine fairness”. “The opportunity to bring family to Australia to live or visit for extended periods should be available to all Australians – not just the wealthy.”
She said it would be unacceptable for Australian families of limited means to be denied family reunion, which was “integral to successful settlement, social cohesion and wellbeing”.
The deputy national president of the CPSU, Lisa Newman, said a two-tiered visa processing system “will lead to dangerous outcomes”, with the operating company incentivised to to put its profits ahead of the need to assess “gold-plated” visa applicants to the same standards applied to those who could not afford to pay a premium.

“It would also give the company an incentive to further delay processing times for regular customers to try to force them into upgrading.”
She called on the Coalition to abandon the proposal.
The CPSU intends to campaign on the visa outsourcing issue at the next federal election, targeting the immigration minister David Coleman’s seat of Banks, and other electorates with a high number of Australians born overseas, including in western Sydney.
Tender requests went to the market in July and there have been industry briefings in Sydney, Canberra, San Francisco, Singapore and Bengaluru, as well as consultation by the Department of Home Affairs with its workforce.
Groups reportedly keen to bid include a joint venture between Accenture and Australia Post, and a consortium involving Pacific Blue Capital, Qantas Ventures, PwC and Ellerston Capital.
Pacific Blue Capital is run by Malcolm Turnbull’s former employee and friend Scott Briggs. In September, Labor signalled it would pursue the government’s planned outsourcing of the $1bn visa processing system in Senate estimates and called on ministers linked to Briggs to recuse themselves from consideration of the outsourcing proposal.

Department of Home Affairs loses Marriage Register

Randridge – 12 October 2018

SECUNDA – Although a local couple got married in 2016, according to the Department of Home Affairs, they are not married and must get married again. According to officer, couple’s only option is to get re-married.
This comes after the department claims the register where their wedding is supposed to be registered, is lost.
“They lost a whole register with other couples’ details in as well,” said the groom.
According to him, there are three copies of the marriage certificate, one goes to the conductor of the wedding ceremony, one to the couple and one to the department, but allegedly the copy, the department received is not legal because it was filled in with a blue pen and not a black pen.
The couple went to the Department of Home Affairs numerous times to resolve this matter, but to no avail.
“They told us they will investigate it and that our copy is invalid because it is in blue ink.”
The department advised the couple to get married again, but they do not want to because then the date of their wedding will be in 2018 and not 2016.
“We do not know what to do next, we are considering to get married in court and see if they can back date the certificate to 2016 so that we can have our correct date on our wedding certificate.”
It will cost the couple R1 500 if the same reverend re-marry them so they are considering to get married in court rather.
“We are already married,” said the man.

‘Undocumented foreigners an issue’ – Tshwane mayor

Pretoria News – 12 October 2018
“The City is open to people from across the continent and the world but the national government is duty-bound to ensure that all people enter, live and leave the country legally.”
The plight of undocumented immigrants, exacerbated by crisis and upheaval is cause for great concern.
This is according to Tshwane mayor Solly Msimanga who said the recent fires that engulfed parts of Plastic View informal settlement had once again brought to the fore the unresolved issues of illegal immigration and national government’s inaction in this regard.
He said what was abundantly clear from this tragic incident was that the Home Affairs Department was failing dismally to address this longstanding challenge that had seen xenophobic attacks, loss of life, exploitation and fight for limited resources such as employment and housing.
In a letter to Malusi Gigaba, the Minster of Home Affairs Msimanga stated that the department had a responsibility to facilitate and simplify the issuance of permanent and temporary residences to those who were entitled to them and to detect and deal lawfully and decisively with undocumented foreign nationals.
“The continued violation of immigration laws is an affront to the rule of law of this country, a precedence that the Home Affairs Department is allowing to perpetuate.
“While we sympathise with the undocumented foreign nationals, we have an obligation to first provide services to South African citizens.
He revealed that the majority of Plastic View residents were undocumented immigrants and thus fell outside the prescripts of the housing code.
“This has serious knock-on implications for the Tshwane metro and Gauteng Provinces’ programme of action to provide housing opportunities to our people.
“The fact is that the metro has a housing backlog that stretches back 20 years that needs to be diligently engaged.”
“The process is further exacerbated by prohibitive legislation making it difficult to discharge evictions throughout the city.
“The department’s failure to address the issue of unlawful immigration further compounds a set of circumstances that is already not ideal for the democratic project and the realisation of the Bill of Rights.”
Msimanga pleaded for assistance to deal with the problem of undocumented foreign nationals.
“It is no secret that the poor management of illegal immigration affects all countries and places great strain on diplomatic relations.”
He further added that the housing and human settlements space wasn’t the only realm in which illegal immigration posed a problem.
“This is true of the overstretched resources across all sectors of local government and its direct ability to discharge its constitutional mandate to provide services.”
“The City is open to people from across the continent and the world but the national government is duty-bound to ensure that all people enter, live and leave the country legally.”
He said those who qualified to be within our borders must be processed and provided with papers timeously.
“Until such time that the Department of Home Affairs gets its head out of the sand and addresses this serious issue, Tshwane, and indeed the rest of South Africa will continue to deal with the crisis of undocumented foreign nationals,” said Msimanga.

Overstay / Declared Undesirable / VLIST Ban Issued for 5 Years . There is hope !!

10-10-2018 SA migration
Overstaying one’s visa is a common occurrence among people who applied to extend their visa in South Africa and said visa not issued in time for travel .
In recent months overstaying one visa has moved from being a minor inconvenience to a possible criminal offence with potentially serious ramifications. The changes brought about by the new immigration laws have made overstaying ones visa a very serious affair which needs a careful and smart approach to remedy.
Let us now explore the effect of overstaying ones visa and what steps to take to correct this now serious matter.
Effect of an overstay
An individual who remains the republic after his or her visa has expired is in violations of the Act. The immigration Act describe such individual as illegal Foreigners. Illegal foreigner are dealt with in terms of section 32 which provides:
32(1) any illegal foreigner shall depart, unless authorised to do so by the director general as well as any illegal foreigner shall be deported.
The seriousness of an overstay is clear from the section, anyone who is considered an illegal foreigner must be deported and there are no exceptions. In addition section 49(1(a) makes it a criminal offence to remain in the republic in contravention of the Act and on conviction the penalty is imprisonment for a period of not more than 2 years or a fine. In addition section 30(1) (h) renders one departing the republic on an expired status an undesirable.
Legalization of an Overstay
Section 32(10 read with regulation 30 provides for a mechanism to cure an overstay a potentially avoid any sanction for the overstay. This process is commonly referred to as legalisation and is given expression in the following section:
(a)Demonstrate, in writing ,to the satisfaction of the Director General that he or she was unable to apply for such status for reasons beyond his or her control and;
(b)Submit proof to the Director General that he or she is in a position to immediately submit his or her application for status.Reg 30(2) The Authorization to remain in the Republic as contemplated by section 32(1) of the Act shall be granted on Form 20….
In order to legalise an overstay 3 points must be complied with.
1.You must neither be arrested for purposes of deportation nor be ordered to leave. Both instances occur when you have been detected by Home affairs officials. Therefore you can only avail yourself to legalisation if you have not been detected by immigration enforcement officials.
2.Demonstrate in writing, commonly referred to a good cause. The applicant must demonstrate that the overstay was not intentional but a consequence of factors beyond the control of the applicant? It is not enough to simply overstay for no justifiable reason and approach the Director General where no good cause exists.
3.The applicant must show that he or she is in a position to submit his or her application for a status immediately upon being granted the authorisation.
Once the authorisation is given it will be issued to the applicant on a form 20. The applicant then uses the form 20 to apply for the visa.
If you require assistance with Uplifting the Overstay ban and or Legalization and have any questions on the topic please feel free to contact our offices for specialist advice.

NSW government continues to back wealthy foreigner visa progra

NSW government continues to back wealthy foreigner visa program
7 October 2018 — The Sydney Morning Herald
A lesser known visa scheme that provides wealthy foreigners with a pathway to permanent residency continues to be embraced by the NSW government, despite a federal review finding the scheme had few economic benefits and should be axed.
The NSW government nominated 112 people during the first full year of the permanent visa scheme in 2017-18, according to the latest figures supplied to the NSW Legislative Council.
Under the scheme, known as the Significant Investor Visa (SIV) stream, “high net worth individuals” are granted permanent residency in exchange for investing $5 million in Australian “complying investments”, such as venture capital projects, shares, and corporate and government bonds.
In order to be eligible, investors need to be nominated by state governments and must show a “genuine and realistic commitment” to residing in that state.
While the scheme accounts for a tiny proportion of Australia’s total migrant intake, the Productivity Commission, in a 2016 review, flagged concerns it generated the perception “that visas are being ‘sold’ to wealthy foreigners”.
NSW Premier Gladys Berejiklian, via a spokesman, justified the government’s participation in the scheme on economic grounds, and said only 78 of investors it nominated in the past financial year had been approved for SIVs by the federal Department of Home Affairs.
“Each of these individuals invested at least $5 million into the NSW economy, creating opportunities and jobs for the broader population,” the spokesman said.
The NSW Department of Industry also endorsed the program, with a spokesman saying NSW was “well positioned to leverage additional investment from business and investor migrants to the benefit of NSW.”
“NSW is headquarters for many of the financial companies that offer SIV complying investments and these companies facilitate SIV investment heavily into NSW businesses through the program,” the spokesman said.
However, the Productivity Commission rubbished the scheme’s purported broader economic benefits in its 2016 report, finding they were “negligible” and “any benefits accrue to mainly those visa holders and to fund managers”.
It also identified the potential for SIV holders to have poorer social integration than other visa subclasses because of the lack of language requirements or age thresholds, and the risk the scheme could be “used as a pathway for investing “dirty money” in Australia.
It recommended the SIV scheme be abolished.
One company which has capitalised on the scheme is Moelis Australia, an investment bank with headquarters in Sydney and run by Sydney Swans chairman Andrew Pridham.
In a 2017 pitch to the Queensland government, the company billed itself as the “pioneers of SIV in Australia, and a “one stop-shop of SIV complying investment options”. It also claimed to have $1.5 billion of assets through the SIV scheme.
Labor’s Industry spokesman Adam Searle said the Berejiklian government’s continued participation in the scheme demonstrated “the wrong priorities” around migration. But he stopped short of committing Labor to abandoning the program if elected in March.
“Given the criticism of the program we would take a lot of convincing to keep the program but as a first step we would undertake a strenuous review,” Mr Searle said.
The scheme was created under the Gillard government in 2012, and has two sub-streams – an initial four-year SIV temporary visa (s188C), which is the precursor to applying for the permanent SIV visa (s888C).
To date, the NSW government has nominated 1329 people for the temporary visa, but the four-year condition means it has only been able to nominate applicants for the permanent stream from November 2016.
A spokesman for the Department of Home Affairs said that as of June 2018 “more than $10 billion has been invested in complying investments as a result of the SIV program.”
Chinese nationals have been the main beneficiaries of the scheme, accounting for 87 per cent of all 2022 SIVs granted since 2012.

More Africans countries to benefit from SA VISA relaxation

Southern Times — Oct08,2018 —
Pretoria – South Africa’s department of home affairs has said more African countries are set to benefit from its visa waiving programme.
The development was announced by the Minister of Home Affairs Malusi Gigaba in Pretoria last week.
Gigaba told the media that there will be some changes in the visa architecture aimed at boosting tourism and easing business travel.
He said the reforms will include amendments to regulations applying to foreign minors travelling to South Africa, visa waivers and relaxation of visa requirements for certain countries.
Minister Gigaba said his department will be reviewing the visa regime for most African countries in line with the African free movement agenda.
“South Africa already waives visas to a number of countries. In line with our Africa-centred foreign and immigration policies, ordinary passport holders of 15 of the 16 SADC countries do not require visas to visit South Africa, with the exception of the Democratic Republic of Congo.
“As called for by the 2017 White Paper on International Migration, we are reviewing our visa regime for other African countries in line with the African free movement agenda. Where we are unable to waive visas for objective risks, we will implement other measures to ease travel,” said Gigaba.
The home affairs department also announced that more countries will be included in the Visa waiving programme for the benefit of the tourism industry.
The department is finalising Visa Waiver Agreements for ordinary passport holders with several countries, including Algeria, Egypt, Morocco, Sao Tome & Principe, Tunisia, Saharawi-Arab Democratic Republic and Ghana.
In the Middle East are Saudi Arabia, United Arab Emirates, Qatar, State of Palestine, Iran, Lebanon, Bahrain, Oman and Kuwait. In Eastern Europe are Belarus and Georgia as well as Cuba in the Caribbean.
The department is also simplifying visa requirements for countries such as China and India saying it will make provision for taking biometrics on arrival in South Africa, allowing visa applications via courier and issuing five-year multiple entry visas.
“We will consider easing, similarly, travel restrictions for certain categories of visitors for other countries, including Nigeria, Kenya and Uganda,” Minister Gigaba added.
Long-term multiple entry visas have also been implanted in order to further ease the movement of travellers, for purposes of tourism, business meetings and academic exchange, we have implemented long-term multiple entry visas for frequent travellers.
These, include a three-year multiple entry visa for frequent trusted travellers to South Africa, and a ten-year long-term multiple entry visa for business people and academics from Africa.
According to the amendments, business people from BRICS countries who require visas, China and India will be issued a 10-year multiple entry visa within five days of application.
The minister also said the requirements for travelling with minors would be reviewed for the convenience of travellers.
“Home Affairs requires that minors travelling in or out of the Republic do so with the consent of both parents as required by Section 18 (3) (c) of the Children’s Act.
As indicated by the President, we are simplifying the rules on travelling minors who are foreign nationals to minimise disruption to legitimate travellers without compromising the safety of minors and the rights of their parents.
To this end, we will issue an international travel advisory before the end of October 2018, after consultation with the Immigration Advisory Board.
The key changes will be that rather than requiring all foreign national travelling minors to carry documentation proving parental consent for the travelling minor to travel, we will rather strongly recommend that travellers carry this documentation,” said minister Gigaba.
The minister added that his department will put in place other options to assist travellers who might fail to present the required documentation instead of denying them entry.
“Rather than denying entry where documentation is absent, travellers will be given an opportunity to prove parental consent. South African minors will still be required to prove parental consent when leaving our borders,” he added.
He said the changes will be implemented in good time before the festive season for the convenience of travellers with children.
Consultations are also being finalised with other government departments, academics, business and organised labour, to implement a reviewed critical skills list by April 2019.
The minister said this will help in attracting and retaining critical skilled labour best to enhance economic development and advance our country’s new path of growth, employment and transformation.
“In order to retain critical skills, foreign students who graduate at South African institutions of higher learning within critical skills categories, are offered an opportunity to apply for permanent residence upon graduation. Those who do not opt for permanent residence are issued with critical skills visas,” he added.
The changes are expected to contribute to the stimulus and recovery plan that was announced by President Cyril Ramaphosa on the 21 September 2018.

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