Archive from November, 2018

Home affairs committee adopts Civil Union Amendment Bill

The Portfolio Committee on Home Affairs in Parliament adopted the Civil Union Amendment Bill on Wednesday.
The bill, which will be presented to the National Assembly to pass, will afford same-sex couples the same rights as heterosexual couples.
“The committee is of the view that this amendment is a strong affirmation to the right of equality before the law and further prevents any discrimination on the basis of sexual orientation,” parliamentary communication service’s Hlomani Chauke said in a statement on Wednesday.
The purpose behind the amendment was to repeal section 6 of the Civil Union Act, which allowed a marriage officer to inform the minister that “he or she objects on the ground of conscience, religion, and belief to solemnising a civil union between persons of the same sex”.
“This infringed the right to equality before the law and the right not to be discriminated against by the state on grounds of sexual orientation,” Chauke explained.
The bill proposes a transitional period of 24 months for the Department of Home Affairs to enable officers an opportunity to be trained if it is passed.
“The amendment further requires that during the transitional period; the minister of home affairs must ensure that there is a marriage officer, other than a marriage officer who had been granted exemption through the principal act (the Civil Union Act), available to solemnise a civil union at every Department of Home Affairs office,” Chauke said.

SAQA to recognise qualifications of refugees and asylum-seekers

29 November 2018 – MSN

The South African Qualifications Authority (SAQA) has revealed its bold plan to recognise the qualifications held by refugees and asylum seekers.
Currently, migrants holding refugee and asylum permits were more likely to be blocked from continuing with their studies at South African institutions or finding employment, using their qualifications.
As they were often forced to suddenly flee their violent-torn countries, they were in a worse off than migrants who had planned their relocation to South Africa.
SAQA recognises the qualifications of foreigners arriving in the country for specific purposes such as studying or employment, but not those of refugees and asylum-seekers.
The authority now plans to change this and give the refugees and their asylum counterparts a lifeline.
Joe Samuels, SAQA’s chief executive, has invited public comments on the proposed law, detailing plans to recognise qualifications of refugees and asylum-seekers.
“SAQA is conscious that refugees and asylum-seekers do not migrate by choice and face unique challenges to meet all the application criteria for evaluation of their qualifications,” said Samuels.
“SAQA is committed to assisting asylum-seekers and refugees to overcome such challenges.”
The African Diaspora Forum welcomed SAQA’s intentions. The organisation said it would make a submission in support of the proposed law.
Vusumuzi Sibanda, its chairperson, told The Star that many educated asylum-seekers and refugees were forced into informal jobs, because their qualifications were not recognised.
Sibanda said it was amiss that laws did not prohibit refugees and asylum-seekers from being employed, but did not allow for recognition of their qualifications. Refugees and asylum-seekers were effectively blocked from participating in the formal economy and paying income tax.
“Asylum-seekers and refugees are allowed to work, but their qualifications are not recognised. This means they can only do jobs that do not consider their qualifications,” he said.
Sibanda added that the status quo explained why many were car guards in malls and spaza shopkeepers.
“A lot of them are running these spaza shops because their qualifications are not recognised,” said Sibanda.
“Some have qualifications in crucial skills and the country can now increase the pool of qualified artisans.”

Nov 30, 2018 - Uncategorized    No Comments

South Africa adopts new visa rules: Here’s what you need to know

This was revealed by the Department of Home Affairs, which
recently published its regulatory amendments pertaining to the
Immigration Act of 2002. This official government notice,
published on 29 November, has been reported on by Business Tech in
the wake of former Home Affairs Minister, Malusi Gigaba’s,
disgraced exit from the department.
No more unabridged birth certificates
While Gigaba’s dubious tenure came to an abrupt halt following
serious allegations of corruption, mismanagement and
Constitutional violations â€` his time as Home Affairs minister will
forever be stained by the unabridged birth certificate debacle.
This rule, which required minors entering or leaving South Africa
to produce an unabridged birth certificate, has been overturned.
The controversial rule, implemented by Gigaba during the start of
his term, allegedly cost South Africa R7.5 billion due to a
noticeable drop in lucrative the tourism sector.
The reversal of the unabridged birth certificate rule is just one
of the many changes implemented by the Department of Home Affairs,
due to take effect on 1 December. Let’s look at some other revised
regulations which will affect the visa system in South Africa.
Spousal visa for entering South Africa
Visa applications concerning spouses in a “permanent homosexual or
heterosexual relationship” have been revised in the latest
amendment of the Immigration Act. The adjustments to the
regulatory act define new policies relating to the rights of
spouses entering South Africa. The notice makes a few important
points:
• Applications need to prove to the Director-General that
the applicant is a spouse to a citizen or permanent residence
permit holder.
• Applicants need to sign an agreement stating that the
permanent homosexual or heterosexual relationship has existed for
at least two years before the date of application for a relevant
visa and that neither of the parties is a spouse in an existing
marriage.
• Documents detailing the financial support the partners
provide to each other need to be provided.
• Both partners to a permanent homosexual or heterosexual
relationship may be interviewed separately, on the same date and
time, to determine the authenticity of the existence of their
relationship.
Travelling with a child
Revised regulations relating specifically to children in transit
have been noted in the Department of Home Affairs’ document. In
addition to no longer needing an unabridged birth certificate,
here are some points for parents and guardians to be aware of when
travelling to and from South Africa.
Parent(s), legal guardians, or any other person travelling with a
child who is a South African citizen, must produce the following
before departing or entering South Africa:
• a copy of a birth certificate or passport containing the
details of the parent or parents of the child
• a letter of consent from the other parent or parents of
the child authorising such person to depart from or enter South
Africa with the child he or she is travelling with
• a copy of the passport, or identity card in the case of
South African citizens, of the parent or parents or legal guardian
of the child
• the contact details of the parent or parents, or legal
guardian, of the child
• a copy of a court order granting full parental
responsibilities and rights or legal guardianship in respect of
the child
An unaccompanied child must produce the immigration officer with
the following:
• a copy of his or her birth certificate
• a letter of consent from one or both his or her parents or
legal guardian, as the case may be, for the child to travel into
or depart from South Africa
• a copy of the passport of the parent or parents or legal
guardian of the child
• the contact details of the parent or parents or legal
guardian of the child
• a letter from the person who is to receive the child in
the country, containing his or her residential address and contact
details in the country where the child will be residing
• a copy of the identity card or valid passport and visa or
permanent residence permit of the person who is to receive the
child in the country
General work, business, and corporate visas
Visa revisions have also been made concerning foreigners who
intend to establish a business or invest in a business that is not
yet established in South Africa. These revisions include providing
detailed account information and registering with various state
institutions, including SARS and the Unemployment Insurance Fund.
Applications for general work visas have also been revised and
must include a letter issued to the prospective employer by the
Department of Labour stating that:
• despite a diligent search, the prospective employer has
been unable to find a suitable citizen or permanent resident with
qualifications or skills and experience equivalent to those of the
applicant
• the applicant has qualifications or proven skills and
experience in line with the job offer
• the contract of employment stipulating the conditions of
employment, signed by both the employer and the applicant, is in
line with the labour standards in the Republic and is issued on
condition that the general work visa is approved
Corporate visas also need to pass through the Department of
Labour, following a similar process by engaging integral state
institutions.

Nov 30, 2018 - Uncategorized    No Comments

South Africa’s new visa rules take effect from 1 December â€` here’s what you need to know

The changes â€` which will come into effect from 1 December â€` were
first mooted as part of President Cyril Ramaphosa’s economic
stimulus package revealed in September.
Arguably the biggest change will be the reversal of a rule
introduced by former Home Affairs minister, Malusi Gigaba, which
required foreign minors travelling to South Africa to produce an
unabridged birth certificate before being allowed access into the
country.
This birth certificate requirement has been a major point of
controversy, with a 2016 report released by the DA finding that
the rule cost the country as much as R7.5 billion due to lost
business from blocked tourists.
Other changes include:
• Revised rules for spouses entering the country as part of
a permanent homosexual or heterosexual relationship.
• Revised rules for applicants of a general work, business,
and corporate visas.
• Changes for applicants of permanent residency or residency
on other grounds.
More changes expected
While these changes are likely to be welcomed, they form only a
small part of the proposed immigration changes expected to be
introduced in the coming months.
Prior to his resignation former Home Affairs minister, Malusi
Gigaba, said that visitors from India and China will also not have
to apply for visas in person at a South African embassy, while
business travellers from those nations will be issued with 10-year
multiple-entry visas within five days of application.
Other proposed changes include the relaxation of rules for other
countries, with visitors from the UK, US, Germany, France, the
Netherlands, Australia, Brazil, Canada, Russia and Angola expected
to be exempted.
The government also plans to smooth the clearance of travellers
through the busiest border posts, by installing a biometric
movement-control system. The new system is nearing completion,
with several pilot sites already up and running.
Economic impact

________________________________________
Cannon Asset Managers investment analyst, Tlotliso Phakisi, said
that the urgent amendment of South Africa’s stifling visa regime
could be the quick fix needed to drag the country out of the
economic doldrums.
“Introduced under Gigaba’s leadership, the tourism industry has
been hamstrung for a number of years by unfriendly visa
requirements that have negatively impacted the number of tourists
entering the country,” he said.
“In particular, the controversial requirement that visitors
travelling with children under the age of 18 years provide their
unabridged birth certificates (UBC) upon entering or exiting has
proven especially damaging to tourism numbers.”
Citing figures from the Tourism Business Council of South Africa
(TBCSA), Phakisi said that over 13,246 travellers were prevented
from entering the country between June 2015 and June 2016 after
failing to meet the UBC requirements â€` losing the country many
millions in potential revenue.
“Despite this, however, tourism has been one of the few sectors in
the country to consistently show promise and resilience in terms
of both job creation and economic growth over the past few years,
demonstrating its potential as the lever needed for turning things
around in the short term,” he said.
“These figures help to underscore the extent to which tourism has
outperformed other key industries in job creation. And when
compared to other countries’ tourism receipts, it becomes clear
that tourism should be an easy win for South Africa, especially
given our rich natural and cultural heritage.”
Phakisi said that New Zealand was able to attract $10 billion in
tourist receipts in 2017, while Singapore, a country that is
0.006% the size of South Africa in terms of land area, was able to
bring in $20 billion â€` more than twice that of South Africa.
“This highlights that to unlock the potential of tourism to
stimulate our economy, all we have to do is take our thumb off the
administrative pipeline that chokes the industry,” he said.
“And perhaps of even greater importance is that the cost of this
tourism sector stimulus is zero or even negative â€` meaning that it
will free up resources as we reduce administrative and regulatory
requirements.”
“Ultimately Ramaphosa’s stimulus plan and particularly visa
reforms should be welcomed as the quick fix needed to ignite
economic growth and turn the tide on unemployment.”

Asylum seekers can now apply for residence visas

27 November 2018 – GroundUp
Constitutional Court ruling overturns Home Affairs directive

The Constitutional Court has ruled that asylum seekers whose refugee applications have been refused, can apply for a visa. Archive photo: Ashraf Hendricks
If you are an asylum seeker and your application to be a refugee is refused, you are still allowed to apply for a visa. The Constitutional Court ruled this in a unanimous judgment handed down in October.
Background
The case was brought by three asylum seekers whose applications for refugee status had been refused. They each then made applications for visas in terms of the Immigration Act.
Arifa Fahme applied for a visitor’s visa so that she could remain in South Africa with her husband and children. VFS Global, a company contracted by Home Affairs to process immigration applications, rejected her application because she was an asylum seeker. The company said that it cannot issue temporary residence visas to asylum seekers.
Kuzikesa Swinda and Jabbar Ahmed each applied for a critical skills visa. Their applications were rejected because their asylum applications were before the Refugee Appeal Board.
The main reason for all of the rejections however was a directive issued by Home Affairs in February 2016. This directive said that asylum seekers are only entitled to visas under the Immigration Act when they have been certified as refugees by the Standing Committee for Refugee Affairs. This effectively barred asylum seekers from applying for any type of visa.
High Court and Supreme Court of Appeal
Fahme, Swinda and Ahmed approached the High Court to set aside the directive. The High Court found that the Immigration Act and Refugees Act are complementary and not mutually exclusive. It found that the Immigration Act entitled foreign nationals to apply for a visa or permit.
The court reasoned that there was no reason to exclude asylum seekers from this definition. Also, the court found that denying Fahme the right to be with her family unjustifiably infringed her right to dignity. It ruled that Swinda and Ahmed should be entitled to critical skills visas if they otherwise met the requirements of the legislation.
Home Affairs appealed against the decision to the Supreme Court of Appeal (SCA). The SCA found in its favour. In a nutshell, the SCA found that it was impossible for the applicants to apply for permits in terms of the Immigration Act because such applications had to be made from outside the country.
The case then went to the Constitutional Court.
Constitutional Court proceedings
The Constitutional Court considered two main issues. First, whether an asylum seeker can apply for a permit or visa in terms of the Immigration Act. Second, whether the Directive should be set aside. PASSOP (People Against Suffering, Oppression and Poverty) joined the case as a friend of the Court.
Can an asylum seeker apply for a permit or visa in terms of the Immigration Act?
An asylum seeker is a person who has arrived in South Africa who asks to become a refugee. A person is eligible to be a refugee if they are fleeing another country due to persecution for their political beliefs or their membership of a particular social group. When a person enters South Africa as an asylum seeker they may be issued an asylum transit visa. This visa is valid for five days. During this period an asylum seeker must report to a Refugee Reception Office to apply for refugee status. If the application for refugee status is successful, the person is entitled to live and work in South Africa and may apply for permanent residence.
The Immigration Act allows any foreigner to stay in South Africa by applying for two categories of applications: temporary residence permits or permanent resident permits. The Act includes several different temporary residence visas such as spousal visas and critical skills visas.
An application for a temporary residence visa must be made at a South African embassy in the country in which that person lives.
The court found therefore that Ahmed and Swinda could not have applied for their permits in South Africa. Those applications had to be made from outside the country. The court found therefore that the SCA’s ruling in this regard was correct.
But the court then considered whether the directive should be set aside. It found that the directive imposed a blanket ban on asylum seekers from applying for a temporary residence permit or a permanent residence permit. The directive only enabled asylum seekers to apply for a permanent residence permit if they had been certified indefinitely as a refugee by the Standing Committee for Refugee Affairs.
The court then considered whether this particular interpretation of the Refugees Act and Immigration Act was justifiable.
It pointed out that unlike applications for temporary residence permits, applications for permanent residence permits do not have to be made from outside the country. Also, the court said, the Immigration Act entitled “any foreigner” to apply for a permanent residence permit and there was no reason to exclude asylum seekers from this definition.
The court noted that to request Fahme to leave the country and leave her family behind would be unfair and unjust.
For all these reasons the court found that to the extent that the directive imposed a blanket ban on an asylum seeker from applying for a permanent residence permit it was unlawful and must be set aside.
What about the applications of Swinda and Ahmed? The court said that unfortunately they were not in the same position as Fahme. Critical skills visas are a category of temporary residence permits visas and such applications can only be made from outside the country. However, the court pointed out that the Immigration Act entitles a person applying for a temporary residence permit to apply for an exemption from the requirements of the Act. This meant that Swinda and Ahmed were entitled to apply for an exemption in order to apply for their visas locally. The court pointed out that there was good reason to allow asylum seekers to apply for an exemption because they often do not have proper documentation and cannot return to their country of origin. The court found that to the extent that the directive imposes a blanket ban on asylum seekers from applying for a temporary residence permit it was unlawful and must be set aside.
Why this judgment is important
Having worked in a state institution assisting refugees and asylum seekers for more than a year, I have witnessed first hand their plight. The asylum system in South Africa is critically understaffed and under-resourced. Many asylum seekers are struggling to regularise their stay and have no proper documentation. They need this in order to open bank accounts, find employment, run their businesses and improve their quality of life.
This judgment provides an alternative avenue for them to make a home in South Africa by applying for permits in terms of the Immigration Act. Hopefully the judgment will be a reminder that South Africa belongs to all who live in it, whatever their background or immigration status.

Nov 28, 2018 - Uncategorized    No Comments

Zimbabwean teachers in SA `unpaid for months`

Hammond said failure to verify a permit‚ which may later be found to
be fraudulent‚ could result in WCED officials or school principals
paying a hefty fine or facing imprisonment. She said Home Affairs had
found fraudulent permits.
Jack Mutsvairo‚ chairperson of the Union of Zimbabwean Educators
Western Cape‚ established in 2016‚ said the union had 50 members and
a WhatsApp group of 200 teachers. He said the union was irritated by
the verification process.
“If banks take less than a week to do it‚ why is the WCED taking
months? “Some of the Zimbabwean teachers‚ who come to us claiming
they haven’t been paid for between three to nine months‚ tell sad
stories‚” said Mutsvairo.
Some‚ he said‚ had got into debt borrowing money for rent‚ food and
their children’s school fees. Mutsvairo said some teachers suffering
from delays did not engage the union as they feared victimisation if
they spoke out about having not been paid.
A man who teaches mathematics and physical science to Grades 11 and
12‚ said he had been without a salary since January‚ awaiting his
ZEP.
On August 3 he collected his permit and submitted it to the
department‚ but he had still not been paid as the department was
waiting for Home Affairs to verify the permit.
On Tuesday‚ Hammond told GroundUp his permit had now been verified
and his outstanding salary would be paid into his account by the end
of the week. Home Affairs did not respond to a request for comment.

Nov 27, 2018 - Uncategorized    No Comments

Born in SA but not a citizen – matriculant`s university hopes `shattered`

His parents are Ghanaian and came to South Africa in 1996. They
were granted permanent residence in 1997. Odei was born in South
Africa in 2000 but does not have permanent residence status
because his mother claims they were not properly informed by the
Department of Home Affairs of the required process.
You might think that anyone born in the republic is automatically
a citizen, but as Odei`s situation shows, it`s more complicated
than that.
Odei said he needs to apply for funding through the National
Student Financial Aid Scheme (NSFAS) because his family cannot
afford to pay for university. However, to be eligible for NSFAS
the applicant must have a South African ID. And to apply for an ID
as a foreign national you need a permanent residence permit.
According to home affairs spokesperson Thabo Mokgola, Odei`s
parents were supposed to take Odei`s handwritten birth certificate
to the Ghanaian embassy to get a passport for him.
He said the parents then needed to go back to home affairs to get
Odei placed on the department`s files so he could be granted the
same status as his parents, that of permanent residence.
`No one informed me of this process`
`When he turns 18 years old, he could then apply for South African
citizenship,` said Mokgola.
Odei`s mother Elizabeth said that while they used the handwritten
letter to get a Ghanaian passport for Odei, she was not aware they
needed to go back to the department to put him on its files.
Instead, they applied for a temporary residence permit for Odei to
regularise his stay in the country.
`No one informed me of this process (that they had to ask the
Department of Home Affairs to put Odei on their files). I was only
fighting to renew the temporary residence permit,` said Elizabeth.
She said Odei`s father died in 2014 and she cannot afford
university fees.
According to Elizabeth, they attempted several times without
success to renew Odei`s temporary residence permit. Odei said he
had to go through lawyers to get a confirmation letter from the
Department of Home Affairs permitting him to stay in the country.
The letter is valid until the end of November 2018.
Mokgola said Odei now has to first legalise his stay in the
country by applying for a temporary residence visa before he can
apply for a permanent residence permit. He said the average
processing time for a permanent residence application is eight
months, but that the department can make an exception to expedite
an application.
`With matric results normally released in the first week of
January, there is [less than] eight weeks left for him to gather
all the necessary documents for the applications and submit to DHA
(the Department of Home Affairs) for processing. Although not an
impossible situation, the time is very tight for the department to
assist,` said Mokgola.
However, the closing date for 2019 NSFAS applications is November
30.
`I have been doing very well in my studies and am still hoping to
do very well in my final matric examinations,` said Odei, who
wants to study accounting.
`My hopes are shattered.`

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