BORDERS ARE OPEN: IT’S PEAK HOLIDAY SEASON IN EUROPE BUT ARE EUROPEANS REALLY TRAVELING?

Europe opened its internal borders six weeks ago. Bookings are up, but there’s a big difference between booking a trip and actually taking one.

 

It was just under six weeks ago that Europe opened its internal borders in the hopes of salvaging a summer season of travel. So it’s worth asking now how that season is looking.

The prospect of traveling in Europe versus the U.S. at this time is quite different. Europe has largely, if not wholly, beat the virus down. While no form of travel is risk-free during a pandemic, the lower level of virus circulation in Europe makes summer travel a different beast than in the U.S.

However, Europe’s progress remains tenuous.

It’s also worth noting that, in Europe, the July and August vacation season is seen as something of a human right. As journalist Yasmeen Serhan wrote in The Atlantic earlier this summer, unlike the U.S. “Europe savors the summer: a sacred time in July and August when vacations are planned, shops are closed, and the continent agrees to go on a collective pause.”

Given the complexities and uncertainties associated with travel at the moment, however, it’s been anyone’s guess whether or not Europeans would in fact take to planes, trains, and automobiles in order to claim this right of theirs. While no one is expecting 2020s summer to reach 2019 levels, there are some indicators that Europeans are hitting the road.

The opening in June certainly resulted in an increase in bookings to holiday hotspots, said Olivier Ponti, vice president of insights at ForwardKeys. “When Spain, Portugal and Greece announced they would reopen for travel, there was an immediate pick up in Intra-European flight bookings to those destinations,” Ponti told Skift. “In the five weeks following the announcements, the combined booking levels for the three countries rose to 65 percent of last year’s bookings during the equivalent period. By comparison, all intra-European bookings have recovered to 45 percent of last year’s levels over that period.”

ForwardKeys data also showed that during the week of July 13, there were more new bookings than cancellations to the European Union from Europe for the first time since the pandemic began.

In a survey conducted by Eurail, roughly a third of respondents said they intended to stick to their holiday plans for this year. Dutch citizens were the most steadfast, with 41 percent keeping their plans, followed by German (31 percent) and British citizens (30 percent). The survey also noted that 37 percent of respondents said that flexible cancellations and refund policies are most important to their decision making on taking trips, above low cost or promotional fares.

In some ways, Europe is in the best position to see some form of recovery. As the European Travel Commission noted in its second quarter report, the “likelihood of a stable and quick recovery of travel demand is likely to be greater for destinations that rely more heavily on domestic and short-haul travelers.” In that regard, Europe is well-placed. In 2019, the average share of international arrivals that were from short-haul markets in Europe was 77 percent. Meanwhile, the share of domestic travelers was 44.5 percent across Europe, based on data from hotel stays.

However while bookings are up overall compared to the depths of the lockdown, that doesn’t necessarily mean trips taken — especially in the era of hyper-flexible cancellations. Tim Fairhurst, secretary general of the European Tourism Association, told Skift that situations like Barcelona going back into some form of lockdown may remain a huge thorn in the summer season’s side.

“The appetite is there, and bookings are picking up, but fear of finding yourself on the wrong side of a newly closed border is proving to be a factor,” Fairhurst said. “As are situations such as Barcelona’s, where the regional government has reintroduced recommended (not mandated) restrictions, which don’t obviously affect visitors. So we’ve got the novel prospect of risk of resentment for tourism returning at precisely the time when destinations want to welcome its return.”

www.samigration.com

Refugee Status & Asylum

GENERAL PROCEDURE:  APPLICATION FOR ASYLUM

An Asylum Seeker

He is a person who has fled his or her country of origin and is seeking recognition and protection as a refugee in the Republic of South Africa, and whose application is still under consideration.

In case of a negative decision on his application, he has to leave the country voluntarily or will be deported.

A Refugee

He is a person who has been granted asylum status and protection in terms of thesection 24 of Refugee Act No 130 of 1998.

Under the 1951 United Nations Convention, a refugee can be a “convention refugee” who has left his home country and has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or a membership in a particular social group.

Under the same convention, a refugee can also be a person “in need of protection”whose removal to his home country would subject him personally to a danger of torture or to a risk to his life or a risk of cruel and unusual treatment or punishment.

Role of the Government of the Republic of South Africa

The Government of the Republic of South Africa has an obligation to grant protection to refugees and other persons in need of protection under a number of UN Conventions such as the 1951 Convention Relating to the Status of Refugees.

However, Convention refugees and persons in need of protection based on a risk to life, or a cruel and unusual treatment must have faced personally the risk all the way throughin the country in question

Eligibility Procedure: Asylum Seeker  

  • A person enters the Republic of South Africa through a port of entry (a land border post, airport or harbor), claims to be an asylum seeker and is, therefore, issued with a section 23 Permits which is a non – renewable “asylum transit permit” of the Immigration Act.
  • The permit is valid for a period of 14 days only and authorizes the person to report to the nearest Refugee Reception Office in order to apply for asylum in terms of section 21 of the Refugee Act.
  • The asylum seeker is required to furnish:

ü

A section 23 permit

ü

Any proof of identification from the country of origin

ü

A travel document if in possession of one

  • The asylum seeker lodges in person his application at a designated Refugee Reception Office where an admissibility hearing takes place.The following are done:

ü

Applicant’s fingerprints taken in the prescribed manner

ü

Interpreter if secured (if necessary )

ü

First interview conducted by a Refugee Reception Officer (RRO) and BI-1590 form duly completed

ü

Applicant’s data and image captured in the refugee system

ü

An Asylum Seeker’s permit (a section 22 permit) is printed, signed, stamped and issued to the Asylum Seeker

  • The section 22 permit which is valid for a period of six monthslegalizes the asylum seeker stay in the Republic of South Africa temporarily pending a final decision on his application. The permit can be extended by an RRO for a further six months while the process of status determination is in progress.
  • The holder of section 22 permit has the right to work and study in South Africa and is protected against deportation to his country of origin.

 

 

Refugee Status Determination

Before the permit expires, the asylum seeker reports to the Refugee Reception Office for:

  • A second interview is conducted by a Refugee Status Determination Officer (RSDO)
  • The RSDO proceed with a fair adjudication of the application, makes a decision on claims for asylum application and provides reasons for the decisions. The RSDO must on conclusion of the status determination hearing grant asylum; or reject the applicationas manifestly unfounded, abusive or fraudulent; or refer any question of law to the Standing Committee for Refugee Affairs (SCRA).
  • When granted asylum (written recognition of refugee status), a refugee is generally issued with a section 24 permit, which allows such person to remain for a specified period of 2 years in South Africa, and it is renewable upon expiration of its validity after the review process by an RSDO. In this case, the refugee must write a letter requesting the extension of his or her refugee status
  • He is also allowed to work and study in South Africa whilst the permit is valid.

​Refugee Enabling Documents

  • A refugee must apply for a refugee ID  at any Refugee Reception Office within 15 days in the prescribed manner.
  • After being issued with an ID, a refugee can apply for a UNCTD (United Nations Convention Travel Document) at any Refugee Reception Office in the prescribed manner.
  • An ID is free

Appeal and Review Process

  • In case of rejection, an asylum seeker or refugee who believes that he has a well-founded fear of persecution but whose claim has been rejected, may decide to appeal against the rejection decision of the RSDO to the Refugee Appeal Board (RAB) in the prescribed manner within 30 days after the decision has been handed over to them.
  • The Appeal Board conducts an appeal hearing during which the appellant who is entitled to a fair hearing have the rights to be heard and to present his case fully. The Refugee Appeal Board is responsible for considering and deciding appeals on decisions made by RSDOs.
  • The RAB may after hearing an appeal confirm or set aside or substitute the decision of the RSDO.
  • In respect of manifestly unfounded applications, the Standing Committee for Refugee Affairs (SCRA) reviews or confirms or sets aside decisions taken by the RSDO and refer cases back to RSDO for determination within 14 days as well as monitors in general the decisions of the RSDO.

 

 

Certification

  • The applicant must have 5 full years continuous residence in the Republic of South Africa as a formally recognized refugee  not as an asylum seeker
  • Write an application letter explaining the reasons for applying for the certification
  • Go to the initial refugee reception office where application for asylum was first lodged and complete the form. The Refugee  Reception Office will ensure that the applicant complies with all the requirements
  • The application will be referred to the Standing Committee for Refugee Affairs which is the body established to certify or not if the applicant will remain a refugee indefinitely
  • If successful, the applicant will then be issued with a “Certification” or Section 27© which will enable the applicant to apply at any Home Affairs office for an “Immigration Permit” or “Permanent Residence”

Legal Instruments

  • Refugee Act, 1998 (No 130 of 19998)
  • 1951 UN Convention relating to the Status of Refugees
  • 1969 OAU Convention Governing The Specific Aspects of Refugee Problems in Africa and 1967 Protocol relating to the Status of Refugees
  • 1993 Basic Agreement between the Government of South Africa and the UNHCR
  • The Immigration Act

Service Standard

Applications may take up to six months

www.samigration.com

Preparing to get married

The solemnisation and registration of civil marriages, customary marriages and civil unions are managed by the Department of Home Affairs. Civil marriages are governed by the Marriage Act and regulations issued in terms of the Act. South Africa also recognizes customary marriages through the Recognition of Customary Marriages Act, which became effective in November 2000. Civil unions are recognised in terms of the Civil Union Act (2006).

 

If you are planning on getting married, you must:

  • ensure that you are legally allowed to marry
  • understand the legal consequences of a marriage, particularly that marriages in South Africa are automatically in community of property, unless a valid ante-nuptial contract has been entered into before the marriage, and
  • make sure that your marriage will comply with all the legal requirements for a valid marriage

Should you be unsure of any of these, legal counsel should be sought before the marriage is entered into.

 

Verifying your marital status

Due to the large number of fraudulent marriages reported to the Department of Home Affairs every year, a facility has been created for you to check your marital status at any time. You will need your South African ID number in order to use this facility.

You can also sms the letter M followed by your ID number (example: M 5001010050080) to 32551 A reply sms will be sent back to your cellphone to confirm your marital status and the date of your marriage. (R1 per sms and will be charged by your network service provider).

 

Documents required to enter into a marriage

On the day of the marriage a couple must present the following documents to the person officiating at the wedding:

  • Identity documents(for each person getting married)
  • If a foreign national is marrying a South African citizen, they should both present their valid passports as well as well as a completed BI-31 Form (Declaration for the Purpose of Marriage, Letter of no impediment)
  • If the wedding is for a minor (a person under the age of 18 years), the written consent of both parents/ legal guardian or the Commissioner of Child Welfare or a judge should be submitted on Form DHA-32 as well. If the minors getting married are under the ages of 18 for boys or 15 for girls, the written consent from the Minister of Home Affairs will also be required
  • If any of the persons getting married are divorced, then the final decree of divorce should be furnished
  • If any of the persons getting married are widowed, the deceased spouse’s death certificate must be submitted.

 

Conducting a marriage

Only marriage officers authorised in terms of Act No. 25 of 1961 to perform marriages may do so. Presently civil marriages are solemnised at offices of the Department of Home Affairs and at churches (by authorised marriage officers).

A marriage must be conducted in the presence of at least two witnesses in:

  • a church or another building used for religious services
  • in a public office or private house, with open doors
  • in the case of serious illness or injuries, the marriage may take place in a hospital or any concerned facility.

 

Marriage certificates

Two witnesses and the marriage officer must sign the marriage register after the solemnisation of a marriage. Then the marriage officer must issue the parties with a handwritten marriage certificate (BI-27) free of charge.

The marriage officer must then submit the marriage register to the nearest office of the Department of Home Affairs, where the marriage details will be recorded in the National Population Register (NPR).

 

Any additional abridged copies or unabridged copies of the marriage certificate can be requested by:

  • Completing Form BI-130 in black ink and submitting it to the nearest office of the Department of Home Affairs or to the nearest South African embassy, mission or consulate abroad
  • Paying the prescribed fee

The first issue of an abridged marriage certificate is free, and a re-issue is R75.00

 

In addition to abridged or unabridged copies of a marriage certificate, you may also request the following documents after completing Form BI-130 and paying the prescribed fees:

  • A vault copy of the register
  • An abridged marriage certificate that is either computer printed or handwritten

 

Prohibited Marriages

The law states that certain categories of people may not marry. These include:

  • Minors, unless the prescribed consent to the marriage has been given
  • People who are already married. bigamy is a punishable offence in South Africa. Such marriages are also null and void under South African law
  • In the columns below, a man may not marry any person mentioned in column 1; and a woman may not marry any person mentioned in column 2:
1 2
Mother
Daughter
Father’s mother
Mother’s mother
Son’s daughter
Daughter’s daughter
Sister
Wife’s mother
Wife’s daughter
Father’s wife
Son’s wife
Father’s father’s wife
Mother’s father’s wife
Wife’s father’s mother
Wife’s mother’s mother
Wife’s son’s daughter
Wife’s daughter’s daughter
Son’s son’s wife
Daughter’s son’s wife
Father’s sister
Mother’s sister
Brother’s daughter
Brother’s daughter’s daughter
Sister’s daughter
Sister’s daughter’s daughter
Sister’s son’s daughter
Father
Son
Father’s father
Mother’s father
Son’s son
Daughter’s son
Brother
Husband’s father
Husband’s son
Mother’s husband
Daughter’s husband
Father’s mother’s husband
Mother’s mother’s husband
Husband’s father’s father
Husband’s mother’s father
Husband’s son’s son
Husband’s daughter’s son
Son’s daughter’s husband
Daughter’s daughter’s husband
Father’s brother
Mother’s brother
Brother’s son
Brother’s son’s son
Sister’s son
Sister’s son’s son
Sister’s daughter’s son

 

Consent to the marriage of a minor

If you are or your partner is a minor (younger than 18 years) in the care of either your respective parents or a legal guardian, only the parents’/guardian’s written consent (Form DHA-32) is necessary for you to obtain a marriage certificate.

If a parent whose consent is legally required but either cannot be found to grant consent, or is legally incompetent to do so, then an application may be made to a Commissioner of Child Welfare for consent to the marriage.

If your parents and/or a Commissioner of Child Welfare refuse to grant consent for your marriage, you may then apply to a judge of the High Court for consent. The judge will not grant consent unless there is sufficient evidence that the marriage is in the interest of the minor and that prior consent has been unreasonably refused.

In addition to getting consent from the parents or guardian, boys under the age of 18 and girls under the age of 16 may also be required to seek the consent of the Minister of Home Affairs. The Minister may, on application, condone a marriage which required his/her consent but was contracted without such consent.

 

Voiding the marriage of a minor

A marriage contracted without the legally required consent of the parents or guardian can be made void, in other words, declared null and void by the High Court at the request of the parents or guardian:

  • before the minor turns 21 and
  • within six weeks of the date on which the marriage first came to their knowledge

 

If you are a minor, you may apply for the dissolution of the marriage:

  • before you turn 21, or
  • within three months after turning 21.

 

Customary Marriages

In South Africa, the definition of a customary marriage is one that is “negotiated, celebrated or concluded according to any of the systems of indigenous African customary law which exist in South Africa”. This does not include marriages concluded in accordance with Hindu, Muslim or other religious rites.

 

Requirements for a customary marriages

For a customary marriage to be recognised as a valid marriage, it has to have been entered into before 15 November 2000.

 

However, if entered into after 15 November 2000 it must comply with the following requirements:

  • The marriage must be negotiated, entered into or celebrated in accordance with customary law
  • The prospective spouses must be above the age of 18 years
  • Both prospective spouses must consent to the marriage

The parents of a prospective spouse who is a minor must consent to the marriage. If he/she has no parents, then his or her legal guardian must consent. If the parents or legal guardian cannot consent, a Commissioner of Child Welfare can be approached for consent. Where consent is refused by either of the parents, the legal guardian or the Commissioner of Child Welfare, only a judge of the High Court may consider granting consentIf either of the prospective spouses is already a spouse in a civil marriage, a customary marriage cannot be entered into during the subsistence of the civil marriage. A similar provision is also applied to customary marriages entered into from 1 December 1988.

Although there is no restriction on the number of customary marriages that a man may enter into, no further customary marriage may be entered into unless an order of court regulating the future matrimonial property system of his marriages has been obtained.

 

Registering customary marriages

Customary marriages must be registered within three months of taking place. This can be done at any office of the Department of Home Affairs or through a designated traditional leader in areas where there are no Home Affairs offices.

The following people should present themselves at either a Home Affairs office or a traditional leader in order to register a customary marriage:

  • the two spouses (with copies of their valid identity books and a lobola agreement, if available)
  • at least one witness from the bride’s family
  • at least one witness from the groom’s family
  • and/or the representative of each of the families

In the event that the spouses were minors (or one was a minor) at the time of the customary marriage, the parents should also be present when the request to register the marriage is made.

Customary marriages are registered by completing BI-1699 and paying the required fees. An acknowledgement of receipt BI-1700 will then be issued by the Department.

 

Registering more than one customary marriage

If a male person is already in a customary marriage and wishes to enter into another customary marriage he has to, at his own cost, get a court order from a competent court which will regulate his future matrimonial property system.

It is also possible for a male person who is already in a customary marriage to enter into a civil marriage. They should follow the normal procedure for civil marriages.

 

Civil Unions

The Civil Union Act (effective from December 2006) allows anyone – regardless of their sexual orientation – to marry either through a civil union, a civil marriage or a customary marriage.
Civil unions may be conducted by:

  • designated marriage officers for specific religious denominations or organisations
  • designated officers employed by the Department of Home Affairs and the Magistrates’ Courts

At least two competent witnesses must be present at the ceremony.
Requirements for registering a Civil Union

  • Both persons must be 18 years or older to enter into a Civil Union
  •   Both persons may not be already married in terms of any other Act.

 

Documents required to conclude a Civil Union

  • Valid South African identity books for both persons entering into the Civil Union
  • A valid passport if one of the partners is a foreign national
  • A completed Form DHA-1763 (Declaration for the Purpose of Marriage)
  • Form DHA-1766 (Civil Union register), which must be completed by the marriage officer
  • A completed Form DHA-1764 (Registration of a Civil Union) in which the couple must indicate whether or not they are entering into a Civil Union marriage or a Civil Union partnership
  • A copy of the Divorce Order if one of the partners was previously married but subsequently divorced.

www.samigration.com

Americans Can Travel — But Should They?

Americans must make tough sacrifices to get our vacations back. It’s not fun, but it’s the right thing to do — and the fastest way to start traveling again.

 

For our Viewpoint series, Skift invites thought leaders, some from the less obvious corners of travel, to join in the conversation. We know that these independent voices are important to the dialogue within the industry. Our guest columnists will identify and shape what global trends and through lines will define the future of travel.

The Houston Chronicle recently ran a story about swank local road trips. That same week the paper ran a story about how Houston’s emergency rooms were at capacity thanks to Covid. The whole thing made my head spin. While Americans go about summer vacation as usual, our infection rates continue to rise, even though we know staying home lowers transmission of the disease and decreases the load on health services.

We can travel. we can book a plane ticket and a hotel room and in some places, we can eat in restaurants. In some places, we can go to the movies or the mall or Disney World.

I’m not interested in what we can do. I’m concerned about what we should do. That means we all have an ethical choice to make when it comes to travel.

YOU DO NOT NEED A VACATION

There’s a case to be made for some travel. Travel to support family isn’t always optional. Business travel is problematic, and we have proven much of it unnecessary, but I’ll concede there’s some essential business travel.

But what about Americans taking vacations?

The questions I have are global, but New Zealand aggressively flattened its curve so the answers there are different. For the sake of not going insane, let’s narrow the scope to Americans who skip out for a domestic beach weekend or summer road trip. Let’s focus on Americans who travel because we want to, not because we “have” to.

I don’t care how much you “need” a vacation. You do not “need” to go to the Outer Banks or the Gulf Coast or Mendocino or Jackson Hole. You can not convince me otherwise, don’t try.

JUST THE FACTS

Science tells us a lot about what’s safe; it helps us mitigate risk. Science tells us to get vaccinated for measles, mosquitoes carry malaria, some cancers can be cured, even. So far, science says if we all wear masks and distance, we drastically reduce our risk of getting Covid-19. Science tells us coronavirus is essentially spread by us breathing on each other over extended periods of time, with the risk being higher when we’re indoors. This stuff, it’s just the facts, ma’am, and it’s without moral judgement. When people wear masks, distance, and/or stay outside, transmission rates are lower than when they don’t. When people isolate themselves from others, transmission rates are lower than when we socialize as usual. Facts.

Ethics considers the implications of our actions when we apply — or don’t apply — the science. Science tells me my mask slows the transmission of Covid-19. My moral compass tells me, a person who defers to science (though science doesn’t care if I believe in it or not), slowing the spread of coronavirus is the right thing to do.

FRAUGHT WITH COMPLICATIONS

When I consider vacations in the time of coronavirus, I think about what I’m asking people to do for me. Using a hotel or holiday rental creates the need for check-in and housekeeping services. When I travel, I want restaurants and food service. If I fly, I must clear security and board a plane with a full crew. I may need a rental car or I can choose public transportation. Any activity has staff: tour guides, ticket takers, the guy driving the shuttle for the river float. The mascot in a Goofy costume at Disney World may be safer from exposure than a janitor cleaning the restrooms, but they’re both putting themselves at some level of risk so I can enjoy the Magic Kingdom.

It’s easy to think vacations are a good thing because they create jobs. It’s easy to rationalize things we think are fun But vacations also create dozens of contact points. And they show a real lack of consideration for workers, for the woman who cleans the Adventureland restroom. It’s unethical to require a worker put herself repeatedly in a high risk situation just because I want to visit the Enchanted Tiki Room.

What if I take my crew to the coast or a remote town instead? We’ll get an Airbnb on the Oregon coast or West Yellowstone or the Blue Ridge Mountains. We’ll support small town businesses and outdoor recreation.

Nope.

We still don’t have reliable rapid testing. I can’t guarantee I’ll arrive at my destination Covid-19 free. If I get sick, I may divert valuable resources away from residents. Flattening the curve isn’t just about keeping case numbers low, it’s about conserving resources. If my mutli-generational reunion requires coronavirus care, we may tap out what’s available locally — and expose a place where there had been few cases.

Self-contained travel away from other people seems the only way to minimize not only my risk but the risk I’m expecting other people to take on. RVs are hot right now (though see above about potential impact on small towns), and once I’m more than a mile away from the trailhead, crowds diminish markedly. If the backcountry is calling you, now’s the time. The key is to minimize all interactions with others outside your household. Backcountry travel is physical distancing to an extreme.

Everything, anything else feels fraught with complications. Everything else feels unethical.

THE FASTEST WAY TO GET OUR VACATIONS BACK

We should stay home.

Travel has long thrived on exploitation; coronavirus adds a new and potentially fatal layer. We reopened our businesses too soon and we’re paying the price with public health. We are being selfish and unethical by acting like it’s just another American summer. We are not doing workers a favor by insisting they pull us a frosty cold one at the bar, we will not save B&Bs by insisting they serve us while we sicken the staff.

Our government refuses to lead with science or ethics, so we must do so ourselves. The science says if we wear masks, practice distancing, and limit our movement, we can get coronavirus under control.

Embracing science isn’t just smart, it’s ethical, too, and the fastest way to get our vacations back

www.samigration.com

R e c o g n i s ed R e f u g e e ( S e c t i o n 2 4 P e r m i t )

This means that :

A refugee can apply for permanent residence if he or she has been living in South Africa on a refugee status permit for a minimum of five consecutive years.143 For a recognized refugee to receive a permanent residence permit, the standing committee for refugee affairs must have certified that that person will remain a refugee “indefinitely.”

On March 30, 2004, the Standing Committee for Refugee Affairs published a decision intended to circumscribe the conditions under which certification shall be issued, namely: “…Where the appellant is likely to remain a refugee for the foreseeable future and the “foreseeable future” should be one year.”

Once the South African government has awarded you refugee status. The government will issue you with an identity card which shows that you are a refugee. You will be issued with a renewable Refugee Permit which is referred to as a Section 24 Permit.

You will be entitled to apply for a United Nations Travel Document tha tallows you to travel to any country except your country of origin. Should you travel to your country of origin for any reason, the South African government will stop recognising you as a person in need of protection. You will therefore cease to be a refugee. By voluntarily going back to your country of origin, you will be indirectly saying that you are safe there, hence you will no longer deserve protection or refugee status. Refugees have the right to work and enjoy most of the rights in the South African Constitution except the right to vote.

It is possible for refugees to eventually get a South African passport after a long period of time, which will entitle you to travel anywhere in the world including your country of origin should your fear of harm disappear. This will also entitle you to have a South African identity card and to be able to vote.

www.samigration.com

Children born abroad with one South African parent have right to citizenship – ConCourt

  • a seven-year legal battle fought by Lawyers for Human Rights on behalf of four people born to SA parents outside the country.
  • The case centred on the Citizenship Amendment Act of 2010 and how it applied to people born outside of South Africa before January 2013.
  • Justice Sisi Khampepe slammed the Department of Home Affairs, describing its conduct in the matter as “brazenly incompetent”.

Children born in other countries are entitled to South African citizenship as long as one parent is South African, the Constitutional Court has ruled.

A seven-year legal battle is finally over and the court has ruled that the Department of Home Affairs must immediately recognise as citizens Yamika Chisuse, born in 1989 in Malawi; Martin Ambrose, born in 1970 in Zimbabwe; Amanda Tilma, born in 1969 in Zimbabwe; and Emma Dullart, born in 2006 in Accra.

The ruling by the court has cleared up any confusion about the country’s citizenship by descent laws, which were interpreted by Home Affairs to mean that nobody born in other countries after 2013 qualified for citizenship, irrespective of whether their parents were South Africans, GroundUp reported.

Represented by Lawyers for Human Rights, the applicants started negotiations with the department in 2013 and first went to court in 2016.

The department failed to file opposing papers and it was finally set down to be heard in May 2019.

The department asked for a further postponement, but this was refused and the matter was heard unopposed.

The applicants claimed that the Citizenship Amendment Act of 2010 (which came into effect in 2013) was not being applied retrospectively, resulting in “wholesale deprivation of citizenship rights overnight”.

They said the provisions of the Act did not provide for anyone born outside of South Africa to a South African parent before January 2013 to obtain citizenship.

‘Risks of statelessness’

The Gauteng High Court in Pretoria ruled in their favour, declaring sections of the act unconstitutional.

But the Constitutional Court has now declined to ratify this, saying that the act was misinterpreted.

In a unanimous ruling handed down this week, Judge Sisi Khampepe said the issue surrounded the wording in the act which stated “any person who is born”.

This was interpreted to mean only those born after 2013.

The judge said the only reasonable and constitutional compliant construction of the text was that it included all persons, born yesterday, today and tomorrow.

“An interpretation that favours a prospective-only operation in this instance effectively abolishes existing rights.

“Moreover, a finding that the section only applies prospectively would have the effect of excluding not only the vast majority of those who had acquired citizenship by descent, but also those who, like the applicants in this matter, are excluded from the ambit of the section merely by the date of their birth,” said Khampepe.

Khampepe said:

This interpretation would also expose some individuals to the risks of statelessness and it would be contrary to the spirit and purpose of the legislation, which seeks to widen the pathways to South African citizenship rather than narrow them.

‘Brazenly incompetent’

The judge labelled the department’s conduct “brazenly incompetent”. While it had belatedly, before the Constitutional Court, conceded to an interpretation of the act that would recognise the applicants as citizens, it had continued to oppose the application on a “factual basis”.

“The ordinary rule is that costs follow the results and the applicants have been unsuccessful in confirming the order of invalidity.

“But clearly this case encompassed more than that – it was about vindicating the citizenship rights of the applicants who have been dragged from the proverbial pillar to post by the government’s intransigence, indifference and inefficiency.

“The applicants have been successful in vindicating these rights and are entitled to their costs for the significant and prolonged litigation.

“The documents must be issued as soon as possible. They have already suffered greatly by the dilatory conduct of the government and there is no reason why they should continue to be at their mercy.”

Liesl Muller of Lawyers for Human Rights said the case was about one simple thing – dignity.

“The application was opposed to the bitter end, this despite two of the applicants providing DNA evidence of their link to a South African parent and two others having government-issued proof of their links.

“Our clients expressed overwhelming relief … It may have been a seven-year legal battle; for them it has been a life-long struggle.”

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Mauritius immigration and residence 2020: The key program changes at a glance

Given the deteriorating socio-political and economic situation in SA, the number of South African families securing a Plan B in Mauritius is increasing exponentially in 2020. The following changes announced by the Mauritian Government as part of their Coronavirus budget speech makes it far easier for South Africans to emigrate to the island nation:

1. REDUCED INVESTMENT REQUIREMENT: In order to obtain an Occupation Permit, investors will now only have to invest $50,000 (R869,000 as at 22 June 2020); previously, the requirement for obtaining a long-term residence permit in the island nation was $100,000 (R1.74 million).
2. VISA DURATION: The validity period of the Mauritius Occupation Permit (OP) has been increased from 3 years to 10 years.
3. PATH TO PERMANENT RESIDENCY: Going forward the work and residency permits will be a single consolidated document. Those who have held a Mauritius Residency Permit for 3 years will become eligible to apply for Permanent Residency Status, with the PR permit being issued for 20 years (previously 10 years) in future.
4. NO SPOUSAL WORK PERMIT APPLICATION REQUIRED: Subject to the primary applicant holding a work permit for Mauritius, their spouse will be eligible to work in the country without an additional work permit application being required.
5. PARENTS NOW ELIGIBLE: Subject to migrant investors being able to prove adequate means for economic self-sufficiency, the Mauritian government also allows them to bring their parents to the island as dependents.
6. NEW PROPERTY INVESTMENT OPTIONS AVAILABLE: Whereas investors formerly had to invest in either the Real Estate Schemes (RES), Integrated Resort Schemes (IRS) or the Property Development Schemes, leaving a lot less scope for personal tastes and development requirements, foreign investors now have the option of purchasing a plot of land of up to 2,100m2 in a new “Smart City” and developing it for bespoke residential use. They also now have the option of purchasing a pre-owned apartment in buildings with at least 3 storeys.
7. REDUCED PROPERTY INVESTMENT REQUIREMENT FOR PERMANENT RESIDENCY: Another key regulatory change pertains to the Mauritius Permanent Residency route: Whereas previously investors seeking immediate permanent residency (PR) status in Mauritius had to invest a minimum amount of $500,000 in a government approved property development, the minimum investment amount has now been lowered to only $375,000, placing second permanent residency within reach for a far larger percentage of South African families.
8. MAURITIAN MORTGAGES FOR SOUTH AFRICANS LAUNCHED: As of July 2020, Mauritian banks will also make home loan facilities available to South African investors, subject to a deposit of 60% being made. The prime lending rate in Mauritius is currently only 3.35%.
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