Archive from September, 2016
Sep 23, 2016 - Business Permit    No Comments

Court strikes down Home Affairs directive on asylum seekers and refugees

Court strikes down Home Affairs directive on asylum seekers and refugees
“High time questions are asked why the department continues to waste taxpayer’s money” with fruitless litigation, says lawyer
Groundup – 23 September 2016
A Department of Home Affairs rule that asylum seekers and refugees may only apply for temporary or permanent residence if they give up their asylum or refugee status has been declared inconsistent with the Constitution and invalid by the Western Cape High Court.
The case was taken to court earlier this year by the Forum for Immigration Practitioners (FIPSA) along with other interested parties who believed that Home Affairs was in contempt of a 2003 High Court order.
In 2003, the court issued an order in the matter of Dabone and others vs the Minister of Home Affairs, compelling Home Affairs to allow asylum seekers and refugees to apply for temporary and permanent residence without having to cancel their asylum seeker status or give up their refugee status. The order also stated that asylum seekers and refugees do not need to be in possession of a valid passport to apply for a temporary residence permit.
Home Affairs initially complied with this order, issuing a directive in 2008 citing the 2003 judgement. Then, in a directive signed by the Director-General of Home Affairs Mkuseli Apleni in February this year, Home Affairs issued a new instruction withdrawing their circular of 2008, stating that “no change of condition or status should be premised on the provisions of the Immigration Act for a holder of an asylum seeker permit whose claim to asylum has not been formally recognized”.
FIPSA noted that without a work visa, many jobs were out of reach to asylum seekers, as asylum documents are often not recognised.
In court, Home Affairs argued that the Dabone order was “clearly incorrect” and unconstitutional.
In the judgment, Acting Judge Sher said that “it would not be proper to express any view in regard to the Dabone order” but that in the directive issued by Home Affairs that withdrew the 2008 directive, Home Affairs “acted arbitrarily and irrationally” and the directive signed this year must be set aside.
Calling the case a “David and Goliath battle”, Tashriq Ahmed, who represented the applicants in court, stated that during the court process Home Affairs “once again resorted to their normal delaying tactics by not filing documents timeously and requesting postponements”. (See GroundUp’s report here
“They are currently in a phase of litigating and appealing against sound judgements because they know they are dealing with a marginalised and poor segment of our community who don’t have the funding to contest expensive litigation. Perhaps it is high time questions are asked in Parliament and other forums as to why the Department of Home Affairs continues to waste taxpayer’s money,” said Ahmed.

Sep 23, 2016 - Business Permit    No Comments

Refugee decisions unlawful

Refugee decisions unlawful
Cape Times – 23 Sep 2016
SEVERAL decisions taken by the Department of Home Affairs related to refugees seeking permanent residence have been ruled unconstitutional in the Western Cape High Court.
Earlier this year the department’s director-general, Mkuseli Apleni, signed a directive that withdrew instructions allowing asylum seekers and refugees to apply for permanent residence without giving up their asylum or refugee status.
It also meant that asylum seekers and refugees without a valid passport could not apply for temporary residence.
Three unsuccessful asylum seekers – Arifa Fahme from India, Kuzikesa Swinda from the DRC and Jabbar Ahmed from Pakistan – took Home Affairs Minister Malusi Gigaba and Apleni to court over the directive.
They argued the directive is unconstitutional.
Apleni and Gigaba’s team argued that asylum seekers and refugees are regulated by provisions of the Refugees Act and asylum seekers are not at liberty to apply for any form of visa in terms of the Immigration Act.
Judge AJ Sher said the case happened at the time when many countries were having to deal with waves of foreigners seeking asylum, and ruled in favour of Fahme, Swinda and Ahmed, and to consider giving them their documents within 15 days.
“Over the course of the last year, thousands of displaced people have fled countries in turmoil or in a state of war, such as Syria and Libya, and travelling by boat or on foot have sought refuge in member states of the EU.
“It is common knowledge that South Africa too has faced an increase in asylum seekers as well as illegal migrants from a number of countries north of our border,” Judge Sher said.
Home Affairs spokesperson Mayihlome Tshwete said they are studying the judgment before deciding on a way forward.

Sep 23, 2016 - Business Permit    No Comments

Deadline looms for Lesotho nationals living in SA

Deadline looms for Lesotho nationals living in SA
21 September 2016 – SABC
Home Affairs Minister Malusi Gigaba is calling for Basotho nationals living in SA to regularise their stay by 30 September.(SABC)
Undocumented Lesotho citizens living in South Africa have been urged to take advantage of the remaining days to regularise their stay in South Africa before the deadline.

Home Affairs Minister Malusi Gigaba says residents have until the end of September to submit applications.

The Lesotho permit initiative is a special dispensation for Lesotho nationals who work‚ study or do business in South Africa and arrived in the country before 30 September 2015.

The permit initiative was launched in February 2016 and will expire in December 2019. Gigaba says they have simplified the application process.

“ We have even taken a step further of allowing the Lesotho government to establish their mobile solutions here in South Africa in the office of the visa facilitations so that the Basotho nationals who do not have smart ID cards from Lesotho and passports can submit their applications whilst in South Africa without having to return to Lesotho, those Basotho who do not yet have passports can submit their applications if they meet all the other requirements , if they have their Lesotho ID cards , have police clearances, proof of employment or study or conductive business.”

Sep 22, 2016 - Business Permit    No Comments

Home Affairs gets a kick in the Trump

Home Affairs gets a kick in the Trump
Noseweek – 22 September 2016
Xenophobia is alive and well, living in the Department of Home Affairs in Pretoria and secretly engaged to Donald Trump.
On 6 September 2016 the Supreme Court of Appeal (SCA) was set to hear the case of an eight-year-old stateless child born in South Africa who has steadfastly been denied her right to South African citizenship by Home Affairs officials.
The child, referred to only by her initials, DGLR, in court proceedings, has, since birth, clearly been entitled to South African citizenship in terms of Section 2(2) of the Citizenship Act.
But Home Affairs officials brazenly informed Lawyers for Human Rights (LHR), who took up her case in 2013, that they did not intend ever applying that section of the law as “too many children” would qualify.
In May 2014, after five years spent hitting the wall at Home Affairs, the child’s mother applied to the North Gauteng High Court in Pretoria for assistance. The court ordered the department to immediately register the child as a citizen and issue her with an ID number and birth certificate.
The court also ordered Minister Malusi Gigaba to promulgate regulations to Section 2(2) to facilitate its implementation. He has 18 months to comply with the order.
But Home Affairs was still having none of it: they took the high court judgment on appeal – and managed to drag out the appeal process for a further two years.
The department could have been in no doubt that they did not have a legal leg to stand on. Their position could only have been based on the supposition that, if faced with enough bureaucratic hostility, foreigners will succumb and decide to “go back to where they came from”.
In this case the strategy had failed. The child and her mother were supported by Lawyers for Human Rights in opposing the appeal. So on the morning of 6 September, on the steps of the Appeal Court, Home Affairs agreed that the Appeal Court should confirm the high court’s rulings.
DGLR was born in Cape Town in 2008 to Cuban parents. Cuban law does not allow children to obtain Cuban citizenship if they were born outside Cuba to parents who are considered “permanent emigrants” if they have lived outside Cuba for more than 11 months. They had.
South African law as a general rule awards citizenship based on the South African citizenship of the parents. Because DGLR’s parents are Cuban, she was not assumed to be South African. Qualifying for neither citizenship, she was stateless – which brought Section 2(2) of the Citizenship Act into play.
Mercifully, it provides for South African citizenship to be granted to stateless children born in the country.
Regarding themselves as above the law, the department refused to implement the section, leaving DGLR stateless for eight years. Stateless children can never leave South Africa, nor obtain legal status in the country without implementation of Section 2(2).

Sep 22, 2016 - Business Permit    No Comments

Court slams Home Affairs abuse of asylum seekers rights

Press Release

Court slams Home Affairs abuse of asylum seekers rights

In a far reaching judgement dated 21 September 2016, the Cape Town High Court of South Africa handed down a very comprehensive judgement in the matter of Tashriq Ahmed & others vs The Department of Home Affairs .

In terms of said judgement, the Court ordered The Department of Home Affairs to forthwith, allow Asylum Seekers (including failed Asylum Seekers ) and Refugees the right to apply for appropriate visas, in terms of the South African Immigration Act .

In this classic David and Goliath battle , this segment of the community has been vindicated by the judgement, whereby the judge emphatically dealt with the matter of the treatment of Asylum Seekers and Refugees by the host nation, i.e. : South Africa and its international and constitutional obligations vs the frustration experienced by authorities as they deal with the international phenomena of burgeoning Asylum Seekers and Refugees numbers . It is thanks to the likes of attorney Tashriq Ahmed and FIPSA ( Forum for Immigration Practitioners South Africa) who took it upon themselves, this Herculean task and have succeeded in bringing justice to the voiceless community of Asylum Seekers and Refugees .

In terms of said judgement, the court ordered Immigration Directive 21 of 2015 (which Directive bars Asylum Seekers and Refugees from applying for change of status to any Visa or Permit in terms of the South Africa Immigration Act) to be inconsistent with the Constitution of the Republic of South Africa and invalid and that it be set aside (http://www.vfsglobal.com/dha/southafrica/pdf/Immigration_Directive_No_21_2015_120216.pdf). In terms of said Directive, signed by Mr Mkuseli Apleni on 3 February 2016, it explains that The Department of Home Affairs believes that Asylum Seekers (and those who had their asylum status rejected ) should not be allowed to apply for change of status (for example : granted permanent residence until they are certified as Refugees). Following this logic, The Department of Home Affairs, withdrew, Circular 10 of 2008, which had allowed Asylum Seekers and Refugees the right to apply for temporary and permanent residence under the SA Immigration Act.

It must be said that during this court process, The Department of Home Affairs has once again resorted to their normal delaying tactics by not filing documents timeously and requesting postponements and not filing documents timeously during the trial and court proceedings .
Recently, there has been a slew of judgements against The Department of Home Affairs and one must ask the question as to whether they have the best legal counsel. They are currently in a phase of litigating and appealing against sound judgements because they know they are dealing with a marginalised and poor segment of our community who don’t have the funding to contest expensive litigation . Perhaps it is high time questions are asked in Parliament and other forums as to why The Department of Home Affairs continues to waste taxpayers money .

Immigration lawyers have accused The Department of Home Affairs of being in contempt of a High Court order after The Department of Home Affairs unilaterally withdrew an instruction allowing Asylum Seekers and Refugees the right to apply for permanent residence without giving up their asylum or refugee status and to apply for temporary and permanent residence without a valid passport.

Mr Aplenis’ Directive 21 of 2015, was issued in spite of a 2003 Western Cape High Court order. In the matter of Dabone and others vs the Minister of Home Affairs, the court instructed that Asylum Seekers and Refugees should be permitted to apply for temporary residence visas and permanent residence status, without having to cancel or give us their asylum seeker or refugee status.

Another important provision of that court order, was that Asylum Seekers and Refugees do not need to be in possession of a valid passport for their temporary residence visas to be processed or issued.

FIPSA also said that VFS, which is the company that processes visa documents, had stopped accepting applications for temporary and permanent residence from Asylum Seekers and Refugees. It will be interesting to note as to whether The Department of Home Affairs will comply with this current judgement or revert to its normal practice of ignoring court orders .

FIPSA and other interested parties took The Department of Home Affairs to court on 21 April 2016, with Tashriq Ahmed representing them. This action was in response to an existing Court Order which was in effect since 2003 .

Released by:

Tashriq Ahmed / FIPSA – Forum of Immigration Practitioners

Release date: 28 March 2016

Sep 22, 2016 - Business Permit    No Comments

‘No protection’ for refugee kids

‘No protection’ for refugee kids
The Citizen 22.9.2016
Legal minds question ability of the constitution to cater for stateless minors.
The constitution and the Children’s Act do not guarantee that the needs of undocumented children are taken care of, and thus do not afford such children protection from abuse, the Legal Resources Centre (LRC) has said in a submission to the United Nation’s committee reviewing South Africa’s child’s rights this week.
“In some cases, social workers are unable or unwilling to help [and are] threatened with arrest by the department of home affairs for assisting these children,” the LRC said in its submission.
“In some instances, the social workers themselves believe that their services are only for South African and documented children.
“Parents who give birth to children in their country of asylum are unable to register such births with their country of origin because doing so would inform their government, which was unable or unwilling to protect them.
“Perhaps the most concerning violation of the rights of undocumented persons is the constant risk and fear of arrest. It was recently reported that an undocumented man has never left the only South African town he knows because of fear of arrest.
“As an undocumented person, his freedom of movement is completely nonexistent, as are any of his rights as explained above – he lives in a world where these guarantees mean nothing in reality.”
The fact is that stateless persons do not exist in any country on paper, are not counted in national populations where they reside, cannot own anything or travel, and no country can claim them as their own.
This means that they “do not exist”, said the LRC.
But in a twist of events earlier this month, home affairs complied with a high court order that it grant citizenship to a previously stateless child born in South Africa. This after it intended appealing the decision.
In South Africa, like many countries, most services require picture identification. These services include banks, university applications and driver’s licences, among many other services.
“This initial failure to curb statelessness means that statelessness becomes something that parents pass on to their children, consequently multiplying the number of children and persons who are stateless.”
Some unaccompanied or abandoned children face a number of challenges in getting refugee documentation to enable them to permanently integrate, it said.

Sep 22, 2016 - Business Permit    No Comments

Detention of nine Zim nationals lawful, says home affairs

Detention of nine Zim nationals lawful, says home affairs
The Citizen – 16 September 2016
The Zimbabwean nationals had to be detained for the department of home affairs to obtain documents to deport them.
The detention of nine Zimbabweans who were returning to their home country in a minibus taxi last month was lawful, as they were undocumented, the department of home affairs has said.
The nine “illegal foreigners”, arrested on August 21, are being held in De Aar, in the Northern Cape. They were told they would be kept for up to three months and then transferred to Lindela Repatriation Centre in Gauteng.
Home affairs director-general Mkuseli Apleni said yesterday the Zimbabweans had to be arrested in order to obtain documents to deport them.
“We must first go to the embassy of the country they claim to come from and the Zimbabwean government has to give us a certificate confirming they are nationals of the country.
“Their country of origin needs to issue a one-way document for them to cross the border.
“One cannot leave the country without those documents,” he told The Citizen on the sidelines of Home Affairs Minister Malusi Gigaba’s tour of the Marabastad refugee reception office in Pretoria.
The nine Zimbabweans have been held at Hanover Police Station in the Northern Cape for the past three weeks. Apleni said the length of their stay there depended on how long it took to process the documents.
“Unfortunately, there is no Zimbabwean embassy or consulate in the Northern Cape, they are only in Gauteng and Cape Town.
“Embassy [staff] will need to go to De Aar to identify all nine of their citizens to confirm that they are indeed from Zimbabwe.
“We can’t allow them to go to Zimbabwe without being assured that they are indeed from there.” Apleni said.
He said the nine could be taken to Lindela Repatriation Centre in the interim to “protect” them.
“Lindela is operating well and the Human Rights Commission has an office space to work from there.
“As the department, we inspect the centre often. It can accommodate a maximum of 3 500 foreigners at a time.” he said.
Meanwhile, Gigaba’s visit to the Marabastad Refugee reception office was to assess progress on renovations and the implementation of a new paperless system.
The new system operates from an automated asylum-seeker kiosk that captures refugees’ fingerprints and books an appointment for them with the department of home affairs.
The system will be fully operational by November and will stop corruption, Gigaba said.
“Anyone who enters the centre will enter on the basis of the online booking, meaning their fingerprints have been captured.
“The applicant will be provided with a date and time of interview and capturing of data. If they do not have their fingerprints captured, they will not be able to access the centre.
“This will avoid corruption and bribery, as they won’t have access to officials,” said Gigaba.
The paperless system would be rolled out throughout the country and at border posts over the next five years.

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