Archive from September, 2017

Rejection and Appeals: What to do when your application has been rejected.

Rejection and Appeals: What to do when your application has been rejected.
25 September 2017 – SAMI |
As with any change there comes with it a lot of miscommunication and an increase in the number of failed applications. It appears that there has been a sharp increase in the number of visa and permit application being rejected and many prospective immigrants are left to wonder how on earth they can navigate this now even more complex immigration system. In this article we will unpack the reasons why some applications get rejected and when and how to do an appeal to have the decision reviewed.
The primary basis of appeals and review in the context of immigration is contained in the Act itself. Section 8 of the immigration act provides the basis on which applicants can appeal to either the Director General or the Minister to review any adverse decision made by the Department. Section 8(1) and 8(2) deal primarily with decisions to refuse entry to a foreigner at a port of entry. These sections are often very contentious and will be dealt with in another piece dealing on what to do when you find yourself refused entry. In this article we a will focus primarily on sections 8(3)-8(7).
Legal Basis of appeals and reviews
Section 8(3) provides that: any decision in terms of this Act, other than a decision contemplated in subsection (1) that materially and adversely affects the rights of any person shall be communicated in the prescribed manner and shall be accompanied by the reasons for that decision
The above section provides that any adverse decision by the Department must be communicated in writing with reasons. For this reasons applicants whose applications have been rejected have a right to be informed and be given written reasons. This section is given expression in the form of a Rejection letter issued by the Department. Upon receiving the rejection letter the applicant has 10 working days (2 weeks) to appeal the decision. The applicant will appeal to either the Director General in terms of S8 (4) or to The Minster in terms of S8 (6) and both the Director General and / or minister have an obligation to consider such appeal and make a decision either to modify or confirm the decision. Sections 8(5) and 8(7) provide that the Director General and Minister respectively shall consider the application and shall either confirm , reverse or modify that decision, meaning that in either case a decision must be forthcoming from the two offices.
The above sections embody the fundamental constitutional right to Fair and Just administrative action contained in s 33of the Constitution. This right places an obligation on State officials, i.e., Home Affair, in performing their functions to conduct themselves in an objective and unbiased manner and to ensure that fair decisions are reached timeously. A decision that does not comply with these principles is one that an applicant can approach either the Director General or Minister to review.
When can a Decision be appealed?
In appeal is not a second chance to submit documents not submitted in the first application. It is not enough to simply supplement the documents submitted but there must be a ground to review the decision of the adjudicator based on the documents already present. In appealing the decision the applicant is saying to the Director General or Minister that “based on the documents I submitted in my original application this decision is wrong and must be reversed”
A decision that is biased, arbitrary, and capricious in nature can be appealed.
Bias: A decision is considered biased when it is influenced by a predisposition of the adjudicator. In this case the adjudicated forms an opinion based on factors outside the facts presented before him/her in the application. A common occurrence is found in the adjudication of work visa and spouse visa application where reference to high unemployment levels and prevalence of marriages of convenience are made. Such comments indicate that the adjudicator did no approach the application objectively as such the applicant has a right to appeal the decision.
Arbitrary: A decision is considered arbitrary when it has no legal basis and random. For instance where an application for a Spouse Visa with a work endorsement is rejected on the basis that the applicant did not provide a Labour Certificate. In this instant the Labour certificate is not a requirement for a Spouse Visa- Work Endorsement and therefore the decision is arbitrary because it has no legal basis. Many rejections are arbitrary and can be successfully appealed.
Capricious: quite similar to an arbitrary decision and often an arbitrary decision is also capricious but no always. A decision is capricious when it does not follow the law or logic and often whimsical in nature. For example, applicant A applies for a visa without providing proper authentication, a trend has developed and not application is ever denied on that basis. Applicant B applies without proper authentication and is rejected on that basis, while the decision may be correct it may be considered capricious due the sudden unexplained change.
How to appeal an adverse decision successfully?
Once it has been established that an adverse decision can be appealed an applicant can then prepare an appeal to that effect. It is important to put your case with as much detail as possible and attach all relevant documentation.
It is also important to know what the law says about the requirements of that particular visa or permit.
The appeal must highlight any or all of the points that make the decision either arbitrary, biased and or capricious.
Appeals can be quite technical and where possible it is wise to seek the aid of a professional to assist you.
Final remarks.
. If you are certain that the decision is wrong then a well thought out and prepared appeal will have an adverse decision reversed. It is unclear how long should the Director General or Minister Take to consider an appeal but generally and in our opinion it should not take more than the time it take to consider an application. Reviewing a decision already made does not require the consideration of the entire application afresh but the points that are being challenged in the appeal. Legislation and the courts are yet to make pronouncements on how long is a reasonable period to wait for an appeal before the delay is considered unreasonable. Where such a delay occurs applicants will have recourse to the High Court as excessive delays are reviewable by the court.

Why Cape Town appeals to local and intl tourists

Cape Town – The launch of the V&A Waterfront’s Silo District will create further opportunities for Cape Town’s tourism sector, according to Andrew McLachlan, Carlson Rezidor Hotel Group’s senior vice president, business development for Africa and the Indian Ocean.
He told Fin24 on Wednesday that in 2016 there was a 17% increase in tourists visiting Cape Town and the forecast is for further 20% growth in numbers in 2017.
As a city, Cape Town had the highest revenue per available room (RevPAR) in the world in 2016 – up 20% on 2015.
“Cape Town benefited from the weakening rand, which made it an attractive destination for foreign visitors. At the same time the weaker rand made it more expensive for SA holiday makers to travel internationally. Cape Town, therefore, was then also the first choice for domestic tourism,” McLachlan told Fin24.
Over the last number of years Cape Town has won a number of accolades from international publications, so it is now pretty much know all over the world as one of the top destinations to visit. That has significantly benefitted Cape Town’s hotel industry.”
He pointed out that Cape Town recovered quickly after the Fifa World Cup Soccer Tournament in 2010 – which left SA with an oversupply of hotel rooms. By 2012 Cape Town once again had an under-supply situation in the hotel industry, in his view.
“As a group we see a lot of potential for Cape Town. Today we have six hotels open in Cape Town and we think there is space for more. Early in 2018 an additional brand for the city will be announced. That is how confident we are in the Cape Town market,” said McLachlan.
Successful lobbying
He said a lot of the success of the industry is due to the successful lobbying of Western Cape Minister of Economic Development Alan Winde and Wesgro to get extra direct long haul flights to the Mother City. This has a positive impact for the hospitality sector.
“Cape Town offers the full package: a typical beach holiday, culture, food and drink, Table Mountain – even the new Zeitz Museum of Contemporary African Art. On the list of the top 10 things visitors ‘must do’ in SA, seven are in Cape Town. A safari is the only thing really missing, but even in this area one can see some wild life within a drive of one of two hours,” said McLachlan.
“Cape Town has become a truly global city with lots of nationalities and lots of languages. It is an easy place to come to as a foreigner and get around and feel safe while on holiday.”
McLachlan also pointed out that Cape Town is very successful in the sector for meetings, incentives, conferences and exhibitions (MICE) tourism. In this regard he also praised the local authorities for running a successful convention centre, which often brings delegates to the city during the more quiet tourism season.
Another trend on which McLachlan has picked up is that Cape Town is increasingly popular among Muslim tourists. He said this is because the Mother City already has a large Muslim population which makes international Muslim visitors feel accepted and at home.
• READ: Despite gloom, SA hotel sector is poised to grow – report
Radisson Red
McLachlan is excited about Africa’s first Radisson Red hotel which opened in the V&A Waterfront’s Silo District. It is the first new-build Radisson Red in the world to be signed. It took 15 months to build and is the biggest Radisson Red in the world.
“We used a lot of domestic product and a lot of local art in the hotel. We kept the development cost down and created a local feeling. From the bookings we see quite a big demand for this type of product. It aims at ‘Millennial thinkers’,” explained McLachlan.
“The entire hotel is all about music, art and fashion and how to incorporate it with a local touch. It is very ‘designer and edgy’ – a very Cape Town hipster experience. We expect a lot of Capetonians themselves will come and enjoy the hotel as well as offering a new experience for seasoned domestic business travellers.”
The other Radisson hotels in Cape Town are three upscale Radisson Blu’s (in Sea Point, Granger Bay and the city centre) and two Park Inns (one in Newlands and one in Adderley Street).
Lastly, McLachlan said from an overall SA point of view, the country is still the most important for the hotel group on the African continent.
“We are very committed to grow our portfolio in SA. We expect to add another eight hotels in SA over the next five years. Apart from cities like Durban, Johannesburg and Pretoria, we also see potential in provincial capitals like Bloemfontein, as well as cities like Nelspruit and Umtata where we think the Park Inn will work well,” said McLachlan.

A growing need for specialised immigration practitioners

With the changes in law and variance in practice, there is a growing need for the assistance of specialised Immigration Practitioners. An immigration practitioner understands the Act and the processes to be followed to achieve, amongst other things, lawful outcomes. While any person is able to put together a visa or permit application, this person may not have the knowledge and/or expertise in understanding and complying with a legal process.
These Immigration Practitioners may over the years have cultivated relationships with the Department of Home Affairs and its officials but the principle role of the Immigration Practitioners are to ensure lawfully compliant applications are filed, that applications are lawfully processed and the rights of applicants are promoted and protected.
Immigration is a “status issue” which affects one’s daily life and it is therefore inherently important and urgent. It should, therefore, be dealt with properly by both the applicant and the Home Affairs officials.

Refugee children miss school to renew asylum permits

Refugee children miss school to renew asylum permits
12 September 2017 – Groundup
“My mom says I should be strong, but my feet always hurt from standing in the long queues” – grade 4 child
Chido, Esther and Irvin, aged 12, ten and six respectively, are missing school. Instead of going to class they are queuing at the Desmond Tutu Refugee Centre in Pretoria to renew their asylum-seeking papers.
“I grew up in these long queues, coming to get our asylum papers,” says Chido. Her family is originally from Zimbabwe but Chido was born in South Africa. To date her family has not yet been granted refugee status.
She says they usually arrive at the centre as early as 4am. Sometimes they have to come back to get their papers processed. This might mean missing school for days.
Esther, who is in grade 4 at a school in Pretoria North, says she has missed exams before because she had to be at the center to renew her papers.
Irvin, who is in grade 2, says, “My mom says I should be strong, but my feet always hurt from standing in the long queues. I’m always sad when we have to come back here.”
“There is nothing we can do because we need the permits for school. My mom is afraid that we might get arrested if we do not renew our permits,” says a young Ghanaian national in the queue.
“At school they need these papers or else they will chase me away,” says a grade 6 learner who attends school in Orlando.
“Home affairs laws should make life easier for our children,” says Ditto, a Somali national who only gave her first name. She has to bring her two toddlers, aged two and three.
“I hope my refugee status will be approved before my children start school,” she says. “I don’t want them to miss classes coming to the center.”
Spokesperson for the Department of Home Affairs David Hlabane said refugee children are accorded their parents’ status. This, he said, is valid for four years and they are expected to return with their parents 90 days before their permit expires.
But while Hlabane’s claim is true for people granted refugee status, it is not the case for people renewing their asylum status. People not awarded refugee status have to renew their asylum-seeking permits every one to three months.
In the long queue are small children, restless and bored, some crying and screaming. Some asylum seekers journey long distances and traveling with small children adds to the hardship.

“Maybe a small playground should be set up to keep our children entertained,” suggests Ditto.
Some asylum seekers in the queue suggest that Home Affairs should only require small children to present themselves on the first application and not have to return for renewals. Others suggest school children be allowed to renew their asylum papers during school holidays.
Hlabane said, “Home Affairs is not aware of refugee children waiting in queues to renew refugee permits. Please assist in establishing at which Refugee Reception Office this happens in order to allow us to look into the matter.”

Home Affairs wants one authority for SA ports of entry

Home Affairs wants one authority for SA ports of entry
Ewn – 21 September 2017
JOHANNESBURG – The Home Affairs Department says it wants to introduce one authority to manage South Africa’s ports of entry in order to create better efficiency.
South Africa’s ports of entry are currently managed by over 18 entities including the police, the South African Revenue Services and Home Affairs.
It says that this is just one of the new policies contained in its white paper on migration management.
South Africa’s ports of entry are currently managed by over 18 entities including the police, the South African Revenue Services and Home Affairs.
The department’s Jackie McKay says it wants to introduce strict requirements at the ports through one authority.
“We believe that by having a single border management authority we would be able to have processes at our ports of entry that are seamless.”
The department has admitted that corruption exists at the ports, but Minister Hlengiwe Mkhize says that they will be strengthening the anti-corruption unit.
“There are people who have been arrested through the anti-corruption unit, and we will be strengthening that.”
The department says it also aims to relax visa requirements for foreign students who graduate with critical skills.

Why Treasury wants to keep the 183 day rule for expat taxpayers

Why Treasury wants to keep the 183 day rule for expat taxpayers
Sep 20 2017 – Fin24
Cape Town – National Treasury believes that the 183 day threshold for South Africans working outside the country should remain in the proposed amendments to the tax laws.
National Treasury is in the process of repealing tax exemption laws on income earned by South Africans working overseas through two bills, the 2017 Taxation Laws Amendment Bill and the 2017 Draft Tax Administration Laws Amendment Bill.
If planned new legislation goes through Parliament, South Africans who work overseas could be taxed locally for foreign earnings from March 1 2020.
Following a public comment process, Treasury said the proposal will be changed to allow the first R1m of foreign remuneration to be exempt from tax in South Africa if the individual is outside of the country for more than 183 days as well as for a continuous period of longer than 60 days during a 12 month period. It revealed these changes at parliament’s standing committee on finance last week.
In response to these changes, PwC’s tax policy leader Kyle Mandy said he believed the minimum days should be increased to 325 to prevent individuals from abusing the law.
Days being manipulated
Speaking to Fin24 on Wednesday, Mandy said that one of the concerns Treasury had when PwC engaged with them was that the number of days spent outside the country were being manipulated by some individuals in order to take advantage of the exemption.
“The exemption does not require the employee to actually be providing services for the full 183 or 60 day periods,” he said.
“All that is required is that the person is outside the country for the required number of days in which case any foreign services remuneration will qualify for the exemption. “Staying out of the country for 183 days is relatively easy to manipulate where an individual is out of the country for an extended period of time,” he said.
One high-profile story involving a person benefiting from this was former Proteas captain Graeme Smith. Following his team’s early exit from the Cricket World Cup in 2011 in India, Smith got permission to visit his then girlfriend in Ireland, and then to return to India to play in the IPL.
Smith’s agent at the time, Craig Livingstone, told City Press: “Like any person who spends time outside the country, (Smith) becomes eligible for those tax benefits. Businessmen and other sportsmen are entitled to them, so why shouldn’t Graeme be?”
Mandy believes the manipulation of the law should be stopped. “If the requirements are a lot stricter – like making the minimum 325 days or even 250 days – it would make it hard for people to manipulate the exemption and would limit it to those it is intended to benefit, namely persons in long-term foreign employment.”
Why Treasury is sticking to 183 day limit
However, National Treasury said it was sticking with the 183 limit for now. Chris Axelson, director of personal income taxes and saving at National Treasury, told Fin24 on Wednesday that increasing the days to 325 would impact expats that earned lower incomes.
Axelson explained that the proposal in the draft response document and the draft presentation kept the 183 day rule, where those out of the country for less than 183 days would be taxed in full on their employment income (as per the current law), while the first R1m in employment income for those outside of the country for more than 183 days would be exempt.
“Given the concerns of the MPs in the previous public hearing on 29 August relating to the impact on lower income earning South Africans overseas, it was felt that the 183 day rule should remain, but alongside a R1m threshold.
“Under the 325 day proposal, if there were teachers, nurses, security guards or others on lower incomes who worked on contracts overseas for less than 325 days, they would be significantly impacted as the R1m threshold would not apply to them.
“With a 325 day rule, those in high income tax countries would also need to most likely pay top up taxes to SARS if they did not exceed the 325 day threshold. For those reasons we proposed keeping the rule at 183 days, but with the new threshold,” he said.
Parliament can request changes
However, Axelson said that the standing committee on finance could still suggest an amendment either before or after the bill is tabled in Parliament.
During this time, Mandy believes the days could be still increased. “I think it is possible that they will go back and acknowledge that the days should be increased,” he told Fin24.
“Treasury’s concern is that if they raise it, it will affect the lower income people who the R1m threshold is primarily aimed at,” he said. “They believe nurses and teachers will be negatively impacted by the increase in the number of days.
“I don’t agree with that as such professionals should have little difficulty in meeting a higher number of days requirements as they should be on contracts of at least a year in the vast majority of cases.”
Mandy said he wouldn’t be surprised if they do increase the days to about 250 days. “That would be appropriate,” he said.

You have overstayed your Visa, now What

You have overstayed your Visa, now What

Overstaying ones visa is a common occurrence among expats in South Africa and 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. In this article we will 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 in the prescribed manner to remain in the republic pending his or her application for a status
32(2) 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. So what recourse does one have when they find themselves in this situation? The answer lies in the same section 32(1), the authorisation issued by the Director General.
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:
Reg30(1) reads – upon requesting authorisation as contemplated in section 32(1) of the Act, an illegal foreigner who has neither been arrested for the purpose of deportation nor been ordered to depart and who wishes to apply for a status after the expiry of his or her visa, shall-
(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. In practice however giving effect to this last part of the legalization process is quite a challenge.
If you require assistance with Legalization and have any questions on the topic please feel free to contact our offices for specialist advices.