Archive from September, 2020

ConCourt: Children Born in South Africa to Foreign Parents Can Apply For Citizenship

 

It has taken four years of legal battles – but now, if you were born in South Africa to foreign parents, you can apply for citizenship. It has been an “agonizing journey” for those who consider South Africa to be their only home.The department of home affairs’ opposition to the court bid by five adults, representing others in a similar situation, for the vindication of their rights, was dealt a death blow by the Constitutional Court last week. The court simply ruled that it would not hear any further argument on the matter.

The department had not filed its papers in time, and it had not given good reason for this. What this means for Mariam Ali, Aden Salih, Kanu Nkololo, Caroline Masuki, Murphy Nganga and any others “similarly situated” is that their previous victory in the Supreme Court of Appeal (SCA) now stands.In terms of that order, the minister must accept their applications for citizenship and make a decision within 10 days.

The SCA declared that if you were born in South Africa to foreign parents who have not been admitted as permanent residents, you qualify to apply for South African citizenship upon becoming a major – if your birth was registered and if you have lived here all your life, irrespective of the date of your birth.It also ordered the minister to enact the necessary forms to allow for such applications within one year. Pending this, he must accept applications on affidavit. The application, brought with the assistance of the Legal Resources Centre (LRC), was first set down in the Western Cape High Court.

It was argued that the centre’s clients had all complied with the Citizenship Amendment Act, which came into effect in January 2013. They were all born in South Africa to foreign parents and they had all turned 18, but their applications for citizenship under naturalisation laws were being refused.

.In that court, the minister argued that the act only applied to children born after January 2013 and could not be applied retrospectively. In fact, his lawyers argued, it did not even apply to children who turned 18 after that date but only to children born after that date.

There, the department of home affairs changed its argument. Retrospectivity was no longer an issue. Instead, it was argued that those affected should have put the minister on terms to deal with their applications and, if they were refused, they could then launch court proceedings to review and set aside the decisions.

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“Despite these concessions, some 10 months later, the state decided to change its stance. We believed it was an abuse of process. They plainly had no reasonable prospects of success and again it showed a total disregard for taxpayers, who have to foot the bill for these types of vexatious proceedings.”

She said that during those 10 months, when there was no indication of any appeal, the clients had submitted their citizenship applications but they were not dealt with.

“Following the dismissal of their appeal, we will now be demanding the adjudication of those citizenship applications and we will approach the courts if necessary, should a decision not be made within 10 days, in accordance with the SCA ruling.

“Our clients have had to endure a long and painful journey to obtain citizenship, with some of them all but giving up hope of being finally accepted by a country they have grown to love – the only country they have called home.

“A large part of this agonizing journey could have been avoided if decision makers within the department of home affairs exercised reason and caution by not arbitrarily abusing the court processes to delay and frustrate the exercise of the clear and unequivocal right of these applicants.

Minister of Home Affairs v Miriam Ali and Others [2018] ZASCA 169 (SCA) (Case no. 1289/17, Supreme Court of Appeal – Court Order Date: 30 November 2018)

2.1 The matter pertains to the interpretation of section 4(3) of the South African Citizenship Act 88 of 1995 (amendment that came into effect on 1 January 2013) in which the main issue was whether or not the section applies with retrospective effect and further is the respondents (on appeal) satisfy the requirements of citizenship by naturalisation. The question was whether in the absence of Regulations, the High Court was correct in directing the Minister to accept applications on affidavits as the order encroached upon the doctrine of separation of powers.

2.2 The Supreme Court of Appeal issued the order that:

“The Minister shall –

3.1 Within one year of the date of this order make regulations in terms of s 23(a) of the South African Citizenship Act 88 of 1995 (the Act) in respect of applications for citizenship by naturalisation in terms of s 4(3) of the Act;

3.2 Pending the promulgation of the regulation in 3.1 above, accept applications in terms of s 4(3) South African Citizenship Act 88 of 1995, on affidavit.”.

Why has his department not fully complied with the court order?

2.3 The DHA was advised to approach the Constitutional Court (“CC”) as the Order of the SCA had the effect of encroaching upon the subordinate legislative powers of the Minister. The CC declined to hear the matter largely because the DHA delayed in launching the appeal proceedings.

www.samigration.com

We may get SA’s red list of travel-restricted countries within hours – but it depends

 

Business Insider SA –  Sep 30, 2020

 

South Africa’s borders open for all foreign travellers on Thursday, and airlines already have flights lined up.

  • But there is still no list of countries for which travel restrictions will apply, based on their level of coronavirus risk.
  • Transport minister Fikile Mbalula should announce that list at 15:00 – but cabinet still has to sign off on it, so it may not happen.

South Africa may release its red list, of countries for which travel restrictions apply due to their coronavirus risk, this afternoon – some nine hours before borders officially open.

But not necessarily.

His team “expect that” transport minister Fikile Mbalula will announce the list at a press conference scheduled for 15:00, his spokesperson Esethu Hasane told Business Insider South Africa, but it is not entirely in his hands.

“Cabinet is due to discuss it today,” said Hasane. “If cabinet gives the green light, the minister will then announce.”

President Cyril Ramaphosa announced the reopening of South Africa’s borders for leisure travellers in mid-September, and immediately cautioned that there may be restrictions for travel to and from some countries, “based on the latest scientific data we can get on those countries”.

There has been no indication from the government in the intervening two weeks as to what metrics may be used, how often a red list would be updated, or what kind of notice travellers would be given before any countries are added or removed from the list.

Nor has there been any official word on whether restrictions will be limited to a requirement to self-isolate on arrival, for those from high-risk countries, or whether travellers could be banned from entering South Africa entirely.

According to already in-force regulations, travellers to and from other countries on the African continent will be excluded from any such restrictions, while cruise ships remain explicitly banned from SA shores.

All travellers, including those from elsewhere in Africa, will be required to present a negative test result for the coronavirus that is less than 72 hours old, or face quarantine.

Several airlines expect to resume flights to South Africa tomorrow, including from countries with high and rising rates of infection.

www.samigration.com

Gauteng’s plans to restrict jobs for foreign workers – what you need to know

 

 

The Gauteng government has published the Gauteng Township Economic Development Draft Bill for public comment.

First announced in the 2019 State of the Province Address, the bill seeks to enhance the regulatory management of the township economy to ease the regulatory burden on local enterprises.

While the bill covers a number of issues, including job opportunities and growth, it also expressly prohibits foreign nationals from participating in economic activities reserved for citizens of, or persons with ‘permanent residency’ status in South Africa.

“Every citizen of and every person with permanent residency status in the republic has a right to practice his or her trade, occupation or profession of choice freely in the province,” the bill states.

The bill further indicates that a list of business activities will be drawn up which will be exclusively and solely-reserved for ownership and operation by citizens.

This list of business activities may be updated at any point based on a number of guiding principles including:

  • Affirming black people in general and Africans in particular, women, youth and people with disabilities;
  • Growing the economy;
  • Increasing levels of the country’s Gross Domestic Product;
  • Upstream production of primary resources or industrialisation;
  • The exploitation of readily available and developed expertise in the republic;
  • Potential or capacity to absorb a large number of people into employment;
  • Opportunities for on-the-job training for the unskilled and unemployed and new graduates;
  • Opportunities for localisation;
  • Potential to create new streams of revenue to broaden the tax base and revenue of municipalities.

You can read the full bill below.

National legislation 

The draft legislation comes after Employment and Labour minister Thulas Nxesi says that government is looking at new regulations to limit the employment of foreign nationals in South Africa.

Nxesi was responding to ongoing violence and protest action by South Africans truck sector in July, with some of the major complaints focusing on the loss of jobs to immigrant workers.

Speaking in an interview with eNCA, Nxesi said that the new legislation would not only be limited to the road and freight sector but also other industries which employ a high number of foreign workers.

These include:

  • The hospitality sector;
  • Restaurants;
  • Security;
  • Farming and agriculture.

“We are looking into this matter in a proper way. However, it is important to remember that we can’t just ‘do away with foreigners’. Some of them are refugees and legally supposed to be here,” he said.

“The issue that we have to deal with is the illegal people which have been employed without any papers from Home Affairs.”

Nxesi said that the country’s labour laws state that South Africans should be given preference, but he noted that some bodies were pushing for a complete ban on foreigners in the trucking sector.

www.samigration.com

South Africa will open to ‘most’ countries this week – and we’re one of the safest destinations in the world: minister

 

The cabinet’s decision to open the country’s borders on 1 October 2020 to “most” countries is a significant milestone in placing the sector on the irreversible path towards full recovery, says Tourism minister Mmamoloko Kubayi-Ngubane.

On this date, all travellers from the African continent and from countries outside the African continent with a low rate of Covid-19 infection and transmission, will resume.

Speaking at a World Tourism Day event on Sunday (27 September), Kubayi-Ngubane said South Africa’s data shows a downward trend in the risk of virus spread.

“South Africa is arguably amongst the safest tourist destinations in the world. We are hopeful that South Africans will continue to social distance, wear masks and take all the necessary precautions to protect themselves so that we can continue to reduce the spread of the virus,” she said.

Kubayi-Ngubane said that as part of the recovery, it will be critical for us to focus on protecting and rejuvenating the supply side of the market.

“The public and private sector will have to find ways of working together to ensure business continuity, aligning the value-chain to new biosecurity standards, as well as investment facilitation and market access,” she said.

“The rising domestic demand which will soon be augmented by the international market when we open the borders will have be met by sufficient supply side infrastructure. This is a very critical element of our road to recovery.”

On the mend

Kubayi-Ngubane said that since government opened inter-provincial travel under level 2 lockdown, shed has been travelling across the various provinces visiting establishments and meeting with travellers and establishment owners.

“I am happy to report that many of the establishments are ready to reopen if not already opened and South Africans are very keen to travel their own country,” she said.

“Across the country South Africans are sending me messages and pictures of their tourism experiences. South Africans are taking their families and friends to adventures, for game drives, hiking and other kinds of memorable tourism experiences that our country has to offer.

“After six months of lockdown, South Africans are going all out to rediscover their country.”

The minister said that the ‘vibrancy’ of the domestic tourism sector is in line with government’s recovery plan which envisages that a recovery will happen in phases.

“In this regard, we predicted that the recovery will start with domestic tourism, then regional land and air markets, and lastly, resumption of world-wide international travel,” she said.

 

Travel list

Transport minister Fikile Mbalula says that South Africa will adopt a risk-based system in selecting which countries will be allowed to travel into South Africa and which countries South African citizens will be allowed to fly to.

Mbalula said that government will largely adopt same approach that was used before South Africa entered into a level 5 lockdown, with countries categorised as ‘high-risk’ or ‘low-risk’ for travel purposes.

“For instance, if you take the whole of the United States it will probably be high risk, and we will then deal with it as such. Whereas the UAE will likely be seen as a low-risk country,” Mbalula said.

The Transport minister indicated that the government will look at placing entire countries or regions on the high-risk list due to the possibility of connecting.

Using the example of the United States, he said it was possible for passengers to board and fly anywhere from New York, to Miami or Los Angeles. This means that the country is as a whole as a risk.

However, he said that the government will also take a ‘differentiated approach’ and formulate its list on a country-by-country basis, based on the current coronavirus situation.

www.samigration.com

FG Commences Visa Processing on Reciprocity Basis

September 22, 2020 Nigeria News

The federal government has commenced visa processing on a reciprocity basis for applicants from countries that have reopened their international airspace and have begun issuing visas to Nigerian applicants.

The Consulate General of Nigeria in South Africa confirmed this development in a statement issued yesterday, saying the federal government has granted payment waivers to certain categories of visitors/migrants affected by travel restrictions introduced during the COVID-19 pandemic.

It said: “The Consulate General of Nigeria, Johannesburg, wishes to announce the recommencement of visa processing, on Reciprocity Basis, for applicants from countries that have reopened their international airspace and have begun issuing visas to Nigerian applicants. In this regard, the federal government of Nigeria has granted payment waivers to certain categories of visitors/migrants affected by travel restrictions introduced during the Coronavirus pandemic.

“All visitors/migrants whose permits expired from March 23 to September 5, 2020, should provide evidence of confirmed return tickets scheduled to travel out of Nigeria to obtain a free extension to depart on or before September 15, 2020.

“All migrants whose permit/visitor’s pass expired before March 23, 2020, shall pay an Overstay Penalty for the number of days stayed before the lockdown on March 23, 2020.”

The Consulate General added that all resident migrants whose permits expired outside Nigeria from March 23, 2020, would be allowed entry into Nigeria with the expired permits on or before September 25, 2020.

It stressed that such returning holders of expired permits and their dependents are to renew the permits within 30 days of arrival in Nigeria to avoid sanctions under relevant immigration laws.

It said that all migrants who processed payments for visa on arrival and all other categories of visas from Nigerian Missions before March 23, 2020, are to apply for revalidation and upload a copy of previous payments not later than September 15, 2020.

The Consulate General said all migrants who obtained a visa on arrival pre-approval letters and all categories of visas from Nigerian Missions before September 23, 2020, whose approval/visas expired before September 5, 2020, are also to apply for revalidation without making fresh payments, by uploading copies of the expired pre-approval letters/visas not later than September 15, 2020

www.samigration.com

Emirates Airlines banned from operating in Nigeria

 

September 19, 2020 – Commercio

 

UAE’s Emirate Airline has been banned from operating in Nigeria.

Emirates Airline has been added to the list of airlines which have been banned from operating in  Nigeria. The ban will take effect from the 21st of September.

This was announced by the Minister of Aviation, Hadi Sirika in a social media statement on Friday.

“The PTF subcommittee met today with EU Ambassadors to discuss Lufthansa, Air France/KLM ban. The meeting progressed well. Emirates Airlines’s situation was reviewed & they are consequently included in the list of those not approved, with effect from Monday the 21st Sept 2020.” Sirika stated.

This comes as the UAE government has been accused of not renewing visas of Nigerians in Dubai and also rumours of a VISA ban for Nigerians applying for visas.

Last month, the UAE embassy in Nigeria denied there is a VISA ban on Nigerians entering the Middle Eastern country. They said: “At the onset of the COVlD-19 pandemic, the UAE took a number of precautionary measures to combat the virus’ spread, including the temporary suspension on issuing UAE visas for all nationalities as of March 17, 2020.

After entering the recovery phase of the pandemic, the UAE eased some measures on July 7, permitting visitors from various countries to adhere to the necessary precautionary measures, including by showing negative PCR test results within 92 hours of travelling to the UAE. This includes those visiting from Nigeria.”

www.samigration.com

Here are the official level 1 lockdown rules for South Africa – including opening borders and limits on gatherings

Business Tech – 23 September 2020

Cooperative Governance and Traditional Affairs (Cogta) minister Nkosazana Dlamini-Zuma has published a series of directives which outline the country’s move to a level 1 lockdown and the new rules that are in place.

In the first directive, Dlamini-Zuma confirms that the country will move to a level 1 lockdown from 00h01 on Monday morning (21 September).

In the second directive, the Cogta minister provides more clarification on the changes announced by President Cyril Ramamphosa in his national address on Wednesday evening.

The biggest changes are outlined in more detail below.

Re-opening of borders 

From 1 October 2020, all travellers from the African continent and from countries outside the African continent with a low rate of Covid-19 infection and transmission, will resume.

This will be subject to:

  • The traveller providing a valid certificate of a negative test which was obtained not more than 72 hours before the date of travel; and
  • In the event of the traveller’s failure to submit a certificate as proof of a negative test, the traveller will be required to quarantine at his or her own costs.

To temporarily control entry into South Africa from countries outside the African continent, the relevant cabinet members shall, after consultation with the cabinet member responsible for health, determine in directions:

  • Criteria for controlling entry into the Republic, from such countries with a high Covid-19 infection and transmission rate;
  • The list of such countries with a high Covid-19 infection and transmission rate, which list may, from time to time, be amended.
  • International travel from countries listed as having a high Covid-19 infection and transmission rate, will remain prohibited except for business travel which may be allowed with the approval of the Cabinet member responsible for home affairs.

All commercial seaports will be opened but international air travel is restricted to the following airports:

  • OR Tambo International Airport;
  • King Shaka International Airport; and
  • Cape Town International Airport.

The list of high risk and safe countries is still to be finalised. It will be published by the respective department, before travel opens up on 1 October, Dlamini-Zuma said.

The minister said the list will be changing as new data becomes available, and won’t be a one-off. Long-term visas will be activated from 1 October.

Gatherings 

Every person, when attending a gathering, and in order to limit exposure to Covid-19, must:

  • Wear a face mask;
  • Adhere to all health protocols;
  • Maintain a distance of least one and a half metres from each other; and
  • Adhere to any other health protocols and social distancing measures as provided for in directions issued by the relevant cabinet member after consultation with the cabinet member responsible for health.

In addition, an owner or operator of any indoor or outdoor facility where gatherings are held must display the certificate of occupancy which sets out the maximum number of persons the facility may hold.

The directive also outlines the following rules for specific gatherings, provided that no more than 50% of the capacity of the venue is used, with persons observing a distance of least one and a half metres from each other.

Other notable rules include:

  • Gatherings at faith-based institutions are limited to 250 persons or less in case of an indoor gathering and 500 persons or less in case of an outdoor gathering;
  • Gatherings at social events are limited to 250 persons or less in case of an indoor gathering and 500 persons or less in case of an outdoor gathering;
  • Gatherings at political events and traditional council meetings are limited to 250 persons or less in case of an indoor gathering and 500 persons or less in case of an outdoor gathering;
  • Gatherings at conferences and meetings are limited to 250 persons or less in case of an indoor gathering and 500 persons or less in case of an outdoor gathering. Provided that persons participating through electronic platforms are not included in these limitations;
  • Gatherings at a workplace for work purposes are allowed;
  • Gatherings for recreational purposes at cinemas, theatres, concerts and live performances are limited to 250 persons or less in case of an indoor gathering and 500 persons or less in case of an outdoor gathering;
  • Gatherings at casinos are limited to not more than 50% of the capacity of the venue, with persons observing a distance of least one and a half metres from each other.

Alcohol sales

The sale of liquor is permitted:

  • By licensed premises for off-site consumption is permitted from 09h00 to 17h00, from Mondays to Fridays, excluding weekends and public holidays;
  • By licensed premises for on-site consumption is permitted, subject to strict adherence to the curfew.

Funerals 

Attendance at  funerals is limited to 100 persons or less:

  • Provided that not more than 50% of the capacity of the venue is used, with persons observing a distance of least one and a half metres from each other.
  • Night vigils are not allowed.
  • During a funeral, a person must wear a face mask and adhere to all health protocols and social distancing measures.

Curfew

Every person is confined to his or her place of residence from 00h01 until 04h00 daily, except where a person  has been granted a permission for work purposes or is attending to a security or medical emergency.

Masks 

  • A person must, when in a public place, wear a face mask, except when undertaking vigorous exercise; and
  • May not be allowed to be in a public place, use any form of public transport, or enter a public building, place or premises, if that person is not wearing a face mask.

Closed to the public and exclusions 

The following areas remain closed and/or are specifically excluded under the country’s level 1 lockdown:

  • Night vigils;
  • Night clubs;
  • The 35 land borders that remain closed;
  • Initiation practices;
  • Passenger ships for international leisure purposes;
  • Attendance of any sporting event by spectators;
  • International sports events;
  • Exclusions relating to certain public transport services;
  • Exclusions relating to certain education services.

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