Archive from April, 2018

Light on ‘undesirable’ immigration law

Light on ‘undesirable’ immigration law
9 April 2018
The Immigration Amendment Act No 13 of 2011 and the new regulations under the act provide for what is termed the “undesirable person”.
Essentially, a foreign national who falls within a category listed in section 30 (1) of the act can be declared an undesirable person by the Department of Home Affairs.
The following are eight instances under which a foreign national can be declared undesirable:
Any foreign national who:
l Is likely to become a public charge.
l Is declared as such by the minister of home affairs.
l Is found to be judicially incompetent.
l Is an unrehabilitated insolvent.
l Is ordered to depart from South Africa.
l Is a fugitive from justice.
l Has previous criminal convictions without the option of a fine for conduct that would be an offence within the republic.
l Has overstayed on a permit issued by the department (section 30(1)(h).
This article focuses on section 30(1)(h), since it is a new category that has effectively removed the imposition of fines upon foreign nationals who remain in South Africa on expired permits.
The period of the declaration is determined by examining the period overstayed. Foreign nationals who overstay in South Africa for a period not exceeding 30 days will be declared as undesirable for a year. Foreign nationals who overstay by more than 30 days will be declared undesirable for five years.
The department has also introduced Directive 9 of 2014, which confirms regulation 27 (3) and stipulates that people who overstay on their permits will be declared as undesirable.
In Johnson and Others versus minister of Home Affairs and Others, Re: Delorie and Others versus Minister of Home Affairs and Another (10310/2014, 10452/2014) [2014] ZAWCHC 101 (30 June 2014) (Johnson case), the Western Cape High Court considered the impact of section 30 (1) (h), regulation 27 (3) and the directive on two families separated due to declarations of undesirability.
The court elected to consolidate the Johnson and Delorie applications since they both sought to urgently remove the “undesirable” status of two foreign nationals who had left SA on expired permits.
The Johnson case concerned Louise Henrikson Egedal-Johnson a Danish national who, since 2009, has been married to Brent Johnson, a South African. The couple had one child. Since her marriage to Johnson, Egedal-Johnson remained in South Africa on a relative’s permit, which was issued by Home Affairs on February 28, 2012. The permit expired on February 27 this year. On February 10, Egedal-Johnson applied for extension.
By May 28, her application had not been adjudicated. On May 28, Egedal-Johnson and her family left South Africa. When departing, the immigration officials at Cape Town International Airport issued Egedal-Johnson with a form declaring her as an undesirable person since she had overstayed in South Africa for about 90 days.
When Egedal-Johnson attempted to re-enter the country, she was refused entry by immigration officials and was subsequently deported to Denmark with her child.
The Delorie application concerned David Ross Henderson, a Zimbabwean national who was married to Cherene Theresa Delorie, a South African permanent resident. The couple had two children. Henderson remained in South Africa on a valid work permit, which expired on April 21 this year. When he left on a business trip to Nigeria, immigration officials at Cape Town International Airport declared him an undesirable person. Henderson was unable to return.
It is within the context of these facts that Egedal-Johnson and Delorie, on behalf of their families, applied for urgent relief from the Western Cape High Court.
Judge James Yekiso made the following key findings: Shortly before Egedal-Johnson and Henderson had departed the country on May 28, the immigration laws relating to undesirable people had fundamentally changed and the introduction of section 30 (1) (h) meant that foreigners who overstayed on expired permits could be declared as undesirable.
Their statuses meant that Egedal-Johnson, Henderson and their respective families were suffering prejudice. It was held that their statuses be suspended, thus they were permitted to enter and remain in the country.
Subsequent to the enactment of the law and regulations, Home Affairs introduced an appeal process for people who were declared as undesirable due to expired permits.
The formal appeal must include:
l Written representations stipulating reasons why the declaration should be removed.
l A copy of the declaration of undesirability.
l Copies of the foreigner’s passport.
l A copy of the acknowledgement of receipt if the foreigner has applied for an extension of a visa.
Home Affairs indicated that appeals will be adjudicated within about 48 hours, but there is no guarantee. Employers are urged to inform their foreign staff of the act.
Foreign nationals who seek the extension of existing visas must ensure that such applications are made at least 60 days before their existing visas expire. A failure to do so may result in such foreign nationals being declared undesirable.

Couple’s nightmare battle with Home Affairs

Couple’s nightmare battle with Home Affairs
6 April 2018 – Groundup

Despite living together for nine years, a life partner visa has been refused three times
A Democratic Republic of Congo immigrant and his partner say “diabolical” administration by the Department of Home Affairs is preventing him from legalising his status.
For 15 months, Rodriquez Baguma and Sarah Hubbard have been trying to obtain a life partner visa. Hubbard says their application has been rejected three times, despite the couple having met all the conditions.
A life partner visa allows foreign nationals to live in South Africa with a resident with whom they are in a permanent relationship.
Baguma said that he is in need of the visa in order to obtain permanent residency. He had applied for it before his work permit had expired in January 2017, but he was denied it. The spousal visa will entitle him to work and have business rights.
“We have been accused of falsifying documents, essentially fraud,” said Hubbard. “We have been denied a visa on the grounds that we have not met the two-year period [living] together. She said they had been living together for nine years with her two children.
GroundUp has viewed some of the Home Affairs rejection letters, which are very short and provide little information. The Department appears to be rejecting the couple’s application on the basis that they have not proven the length of their relationship. But documentation sent to Home Affairs by the couple, also seen by GroundUp, appears to show that they have indeed lived together for sufficient time to make a successful application.
Hubbard, who is British, has permanent residency in South Africa. Baguma has been in South Africa for 18 years.
“It simply does not make sense! We have appealed and appealed,” she said. “Long waits, no help, no responses to calls, no feedback, no clarity of process. Just left hanging.”
The couple appointed a lawyer, who produced a 65-page appeal “to provide paragraph for paragraph, in idiot form, to prove that we have met all requirements”.
The 15 months of frustration over the life partner visa has not been the only battle with Home Affairs bureaucracy. According to Hubbard, Baguma had never been granted refugee status because he was caught up in an appeal process that dragged on for years.
“It was scandalous. He was subjected to a horrendous process. He would wait in the most disgusting place and not be seen. People who gave a backhander would get ushered to the front. We believe in doing things the right way,” said Hubbard.
Baguma is now awaiting the outcome of a fourth appeal for a life partner visa. Each time the application costs R1,500.
Hubbard said she was confident that this fourth application would be successful. “I cannot think of a reason they would deny our application. We have met every single criterion.”
But, she said, if the Department of Home Affairs did deny their application again the family would consider leaving the country.
Home Affairs spokesperson Thabo Mokgola said the department reserved the right to approve or reject an application “upon thorough scrutiny”.
“In this regard, the applicants would have been provided with the reasons explaining the rejection of the application,” he said.

Unabridged birth certificates: a hassle‚ ineffective and a deterrent to tourism

Unabridged birth certificates: a hassle‚ ineffective and a deterrent to tourism
30 March 2018 – Timeslive

The need for families to obtain unabridged birth certificates before travelling is a deterrent to tourism‚ which should be a growth industry‚ according to survey.
Research by Travelstart from February 12 to March 12‚ 2018 tapped into the views of 559 travellers‚ specifically‚ those who have travelled outside South Africa in the past two years with minors under the age of 18.
• 67% of respondents said they needed to apply for an unabridged birth certificate to travel.
• 41% of the sixty seven percent said their application took more than 6 weeks to process through Home Affairs‚ adding hassle‚ stress and cost implications to travel outside South Africa.
• 27% said they encountered administrative problems related to the unabridged birth certificate.
Most respondents also said they encountered problems when departing South Africa. Survey participants cited immigration (55%) and check-in (42%) as the points in their journey where they experienced problems.
Everywhere in the trade‚ consultants have unabridged-related horror stories to share and 50% agree customers are confused by the regulation.
Most airline representatives were reluctant to comment about unabridged birth certificates saying: “it is a sensitive matter and they are only applying the rule set by government”. However‚ Travelstart said‚ two well-known airlines that fly to South Africa daily from hubs overseas confirmed their passengers experienced problems regularly and pointed to a lack of training for immigration officials and confusion at certain stations being the primary cause of unabridged issues.
From the airlines’ perspective‚ most problems occur at immigration and check-in – aligning with passengers’ experience.
Twenty nine percent of travellers said they have been denied boarding in the past two years because of unabridged birth certificate regulation.
Travelstart also engaged members of the SA travel trade including independent travel consultants and those working for retail travel agencies. Travelstart found that foreign families travelling to South Africa are most negatively affected by unabridged birth certificates.
“Everywhere in the trade‚ consultants have unabridged-related horror stories to share and 50% agree customers are confused by the regulation.”
Almost two thirds (67%) of surveyed agents said their clients have been affected by unabridged birth certificate regulation with foreign families travelling to South Africa (67%) and single mothers (33%) being the most negatively affected.
According to Aviation Barometer‚ published every quarter by Airports Company South Africa‚ growth in passenger numbers at nine airports held steady at just over 3% in the fourth quarter of 2017.
Despite this growth‚ Travelstart said: “Unabridged birth certificates continue to prevent families from travelling. In many cases‚ travellers and airline staff at overseas origin airports are left to fend for themselves with the onus being on the traveller to carry the correct documentation…”
Tourism currently sustains 700‚000 direct jobs‚ but its growth is being stymied. The unabridged birth certificate policy should be reviewed‚ said Travelstart.
“. . .The regulation is negatively impacting the tourism experience and more than likely deterring willing participants from a sector thirsty for growth. . .
“As the potential for growth in the sector is more than apparent and needed to boost jobs and the economy‚ those working in South Africa’s travel trade remain hopeful that revising the need for superfluous unabridged birth certificate regulation forms part of South Africa’s new dawn (as espoused by President Cyril Ramaphosa).”
Travelstart added the policy was not even effective in addressing the reason it was implemented – to combat child trafficking – as real human traffickers don’t follow legitimate and documented methods of travel but cross the border in illegitimate and clandestine circumstances.

Electronic SA VISA applications to curb fake permits

Electronic SA VISA applications to curb fake permits
CNS News 3.4.2018
Home Affairs minister Malusi Gigaba said the initiative would remove the need for the department to provide frontline services that tend to stretch government’s capacity.
Home Affairs Minister Malusi Gigaba said the department will this year introduce an electronic VISA application system in order to curb fraudulent permits from foreign nationals, Northglen News reports.
“During the course of the year, we are going to introduce a number of initiatives. One of them is the electronic applications for VISAS and for a number of other permits to the country. That will enable the applicant to obtain information electronically and submit their applications and the documentation to support their applications electronically,” Gigaba explained.
The minister said the initiative would remove the need for the department to provide frontline services that tend to stretch government’s capacity.
He said the initiative would also pave the way for a centralised adjudication system to enable the department to make decisions quickly in terms of people’s applications.
“We intend to introduce an amendment to the legislation which is going to enable the department to have an independent citizenship advisory board. But this is only for those who are applying for citizenship once all other processes have been followed in terms of the latter of the law. So all of these initiatives are going to be introduced during the course of the year,” he said.

Happiness is… a welcoming‚ empathetic government department

Happiness is… a welcoming‚ empathetic government department
08 April 2018 – Sunday Times

On Friday‚ the Department of Happiness Affairs is set to open its doors on the Foreshore in Cape Town
Sonke Gender Justice and other civil society groups have put together the department as an “activism event” to target the Department of Home Affairs.
In 2012‚ the department closed the Cape Town Refugee Reception Office‚ making it difficult for asylum seekers to renew their documentation.
“In an effort to bring more attention and colour to the dust and despair that characterise the conditions at Customs House‚ where home affairs is currently housing its limited services‚ civil society will be hosting the Department of Happiness Affairs‚” a statement read.
“It intends to show the Department of Home Affairs what services to migrants could look like — a welcoming‚ empathetic and receptive space‚ open to all asylum seekers and refugees who wish to apply for documentation in South Africa.”
Last year the Supreme Court of Appeal found the department’s decision to close the second busiest refugee reception office in the country “irrational and unlawful”. It ordered the department to open a fully functioning reception office in Cape Town again and it set the deadline for March 31‚ 2018.
This has not happened.
Interested parties met with the department on March 27 to get an update on the reopening of the refugee reception office. “We were informed that [it] would not be fully operational by 31 March‚ as it was now up to the Department of Public Works to secure premises‚ and that further questions pertaining to the reopening should be referred to their legal services‚” Sonke Gender Justice said.
The Scalabrini Centre‚ one of the parties which instituted the legal action against the department‚ voiced its concern about home affairs’ “failure to adhere to the rule of the law”. In a statement‚ it said the unlawful closure of refugee reception offices was leading to the collapse of the asylum system.
“The refugee protection system is now characterised more for its creation of undocumented asylum seekers than by its primary goal: to identify and provide protection to refugees.” it said.
The organisation and the Somali Association of South Africa are consulting with their legal partner‚ the Legal Resources Centre‚ to ensure the court order is complied with.

Ramaphosa says ruling on ‘lying’ Gigaba of great concern

04 April 2018 – The Citizen

President Cyril Ramaphosa has expressed concern at a recent court ruling that found Home Affairs Minister Malusi Gigaba violated the Constitution by lying under oath.
The High Court in Pretoria found that Gigaba’s assertion that he had never given approval to the Oppenheimers’ Fireblade Aviation to establish a VIP facility at OR Tambo International Airport during a meeting in January 2016 was false.
Fireblade Aviation had sued Gigaba for allegedly going back on his undertaking to make officials available to Fireblade to staff its customs and immigration facility. Gigaba denied that he had approved the terminal, but the court found against him. The court stated that Gigaba had violated the Constitution and denied him the right to appeal.
“The minister has committed a breach of the Constitution so serious that I could characterise it as a violation,” Judge Neil Tuchten said.
The Supreme Court of Appeal dismissed Gigaba’s application to appeal the high-court ruling.
Opposition parties have called on the president to sack Gigaba following the court ruling. In February, the DA laid a formal complaint with Public Protector Busisiwe Mkhwebane requesting her to further investigate Gigaba following the high court ruling. In a written response on Tuesday to a question from Congress of the People leader Mosiuoa Lekota, Ramaphosa said the court ruling was of “great concern and needs to be given serious attention”.
“The judgment handed down in the Pretoria high court in the matter of Fireblade Aviation [versus] minister of home affairs contains statements about the minister of home affairs that are of great concern and need to be given serious attention. I am therefore giving the matter due and proper consideration,” said Ramaphosa.
In February, Gigaba maintained that there had been no agreement with the Oppenheimers. “At no stage was there an agreement with Fireblade. Legally you cannot have a private terminal for a family,” said Gigaba, who was recently moved back to home affairs from the finance portfolio.
In a recent blog post, constitutional law expert Pierre de Vos said it goes without saying that court findings constitute an extremely serious indictment of Gigaba.
“As things stand, it is a proven fact that Minister Gigaba deliberately attempted to mislead the court, that he is therefore dishonest and — by implication — that one could not trust anything he says.
“If one is prepared to lie to the court in the face of overwhelming evidence refuting your lie, who would you not lie to?”

Home Affairs ignores court order

3 April 2018 – The Groundup
Scores of asylum seekers turned away at Foreshore office
Asylum seekers on Tuesday morning gather outside the Foreshore offices of Home Affairs. Many new applicants were expecting to be processed, but they were turned away despite a court order.
It was chaotic outside the Foreshore offices of Home Affairs on Tuesday morning. Security personnel were patrolling the long queues of foreign nationals, many of whom had come to apply for the first time. But security officers told GroundUp that the Foreshore office would not be serving any new asylum seekers.
The Supreme Court of Appeal (SCA) ruled in September that Home Affairs must “reopen and maintain a fully functional refugee reception office in or around the Cape Town Metropolitan Municipality by Friday 31 March 2018.”
But on Tuesday, 3 April, the Foreshore offices turned away new refugee applicants from the DRC, Tanzania, Zimbabwe, Somalia and elsewhere.
Abdul (surname omitted) was one of a group of 20 Somalis applying for asylum for the first time. They had travelled from Atlantis on Monday morning. Abdul arrived in Cape Town in 2015 and has been surviving on piecemeal work. He can’t start a business, open a bank account or go to an educational facility because he does not have asylum papers. He arrived at 5:45am at the Foreshore office. At 8am, an official announced that no newcomers would be processed.
“He did not take down our names or give us appointments. He only said we should come back,” said Abdul. “I am living in fear that police can arrest me at anytime. I am powerless. I didn’t want to argue with the officials and I can’t force them to help me.”
Baku (surname omitted), who is from the DRC, applied for asylum in Johannesburg. He moved to Cape Town in 2015, but the Foreshore offices refused to renew his permit. He is now staying at a church in Goodwood where refugees are provided with blankets and food.
Baku has struggled to get work because he has no valid document. He is now using a letter from the Legal Resources Centre to show police. It reads: “We are advised that asylum seekers whose applications were not originally registered in Cape Town are being turned away by officials at the Cape Town Refugee Reception Office…. Officials insist that asylum seekers return to the office where they first applied for asylum in order to renew their permits. In the meantime any arrest of asylum seekers in the Western Cape by reason of an expired permit might possibly be unlawful and will be premature pending the finalisation of this matter by court.”
Abdikadir Mohamed, Western Cape Director and National Spokesperson Somali Association of South Africa, said, “We are currently consulting with our legal partners but will make an official statement soon.”
At the time of publishing, Home Affairs had not responded to GroundUp’s emails and text messages. In March the Legal Resource Centre accused Home Affairs of defying the court order by not reporting properly to the SCA on its progress towards meeting the April deadline.
On 30 January, Home Affairs had told GroundUp a new refugee office for Cape Town was on the way. Department of Home Affairs spokesperson David Hlabane said, “The Department of Home Affairs has written to the Department of Public Works to get a suitable building for the refugees’ office to give effect to the court order and to ensure that all the needs of refugees and asylum seekers are properly met.”