Court decision a victory for asylum seekers

Court decision a victory for asylum seekers
GroundUp – 03 Oct 2017
The ruling by the Supreme Court of Appeal that the Cape Town Refugee Reception Office must be opened is a victory for asylum seekers. The court found that the director-general of the Department of Home Affairs had used his power unlawfully.
On 29 September, the Supreme Court of Appeal (SCA) found the decision of the director-general of the Department of Home Affairs to close the Cape Town Refugee Reception Office to be unlawful and set the decision aside; overturning a High Court decision. The SCA ordered the Department of Home Affairs to re-open the office within six months.
This is the second time that the closure of the Cape Town Refugee Reception Office has come before the Supreme Court of Appeal. The director-general (DG) first decided to close the office in 2012; however, the decision was set aside by the High Court and an order given that the office must be re-opened.
On appeal, the SCA confirmed the setting aside of the decision. The SCA found that the DG had failed to comply with procedural requirements in making the decision; specifically, he had failed to consult organisations working with asylum seekers. But the SCA nevertheless overturned the order requiring the re-opening of the office and instead referred the matter back to the DG for a decision on its future.
The DG consulted organisations working with asylum seekers before once again taking the decision to close the office. This decision has been widely opposed because of its impact on asylum seekers living in Cape Town who are forced to travel to offices in Masina, Pretoria or Durban.
In its findings last week, the SCA noted that asylum seekers suffer significant prejudice and are not able to exercise their rights under the Refugees Act 130 of 1998 if the refugee reception offices are located far away from the areas in which they live and work. Asylum seekers must report to the refugee reception office several times throughout the lengthy application procedure.
Requiring them to travel to distant offices several times places a burden on a vulnerable group, possibly preventing them from obtaining or renewing the permits which allow them to be in South Africa and exposing them to arrest and detention.
Issues were also raised by the SCA about the ability of the offices in Masina, Pretoria and Durban to handle the increased workload which would result from the closure of the Cape Town office and the prejudice faced by applicants as a result of backlogs.
The SCA noted that urban areas such as Cape Town attract large numbers of asylum seekers because of better access to basic services and work opportunities. The court found that the DG should have taken into account the high number of asylum seekers in Cape Town and the high level of demand for a refugee reception office in Cape Town. His failure to do so meant that his decision was irrational, the court said.
The SCA found that the DG does have the power to close a refugee reception office in terms of the Refugees Act, but that he must exercise this power lawfully. The act only empowers the DG to close a refugee reception office if the DG determines that the office is no longer necessary for the purposes of the act. His failure to consider whether the office was necessary for the purposes of the act meant that he had failed to comply with the act.
The SCA also found that the DG had used his power for an ulterior purpose – a purpose other than the one for which the power was given. The DG stated that he closed the office to enable the government to exercise more control over the asylum application process. He wanted to restrict access to refugee reception offices in urban areas to prevent abuse of the process by people who are not genuinely in need of asylum. The SCA found that this was not a lawful use of the DG’s power.
The SCA rejected the DG’s submission that there are no suitable premises for a refugee reception office in Cape Town. The court said that an office could be located a short distance outside Cape Town, provided it could easily be reached by public transport, or could be located in satellite offices.
Therefore, the SCA found that the decision was unlawful and set it aside. This time, the SCA ordered the Department of Home Affairs to re-open and maintain a fully functioning Cape Town Refugee Reception Office
The SCA found that an order requiring the reopening of the office was necessary because asylum seekers had already been prejudiced for more than five years by the absence of an office in Cape Town; the decision of the DG was flawed in substance as opposed to procedurally flawed as in the first case and the court considered it likely that an order referring the matter back to the DG for a reconsideration of the decision would be ignored.
The court also required the DG to make frequent reports on the steps being taken to re-open the office to ensure that the Department complies with its order.
The decision is a victory for asylum seekers and a harsh criticism of attempts by the Department of Home Affairs to exclude asylum seekers from urban areas and to limit their ability to exercise their rights under the law. DM

Visa changes keep immigrants offside

Visa changes keep immigrants offside
Cape Times – 28 Sep 2017
ASYLUM seekers may no longer apply for any type of visa while they are in South Africa. They must do so before entering.
So the Supreme Court of Appeal found earlier this week.
The judgment comes after Home Affairs Minister Hlengiwe Buhle Mkhize and department director-general Mkuseli Apleni appealed a previous high court ruling that asylum seekers were entitled to apply for visitors and work visas while in the country.
The matter was brought to the Western Cape High Court in 2003 by the Legal Resources Centre on behalf of 13 asylum seekers.
It was settled, and an order, which came to be known as the “Dabone Order”, was agreed on between the parties.
Following the Dabone Order, the director-general soon issued a directive that asylum seekers in possession of a permit could apply for one of the temporary residence permits, as well as permanent residency.
However, on February 3, 2016, the Department of Home Affairs issued a new directive stating that that would not longer be the case.
This lead to the denial of visa applications made by Arifa Musaddik Fahme, Kuzikesa Jules Valery Swinda and Jabbar Ahmed.
Fahme, Swinda and Ahmed became the respondents against the department in the Supreme Court of Appeal matter this week.
Home Affaires spokesperson David Hlabane said: “We are very pleased with the
We knew the matter would end up at the Constitutional Court
judgment as the department was of the considered view that the Western Cape Division of the High Court erred in its judgment, and the Supreme Court of Appeal has concurred with the department in this regard.”
“The respondents did not comply with the general rule laid down by section 10 (2) of the Immigration Act read with regulation 9 (2) of the immigration regulations that applications for visas must be made abroad.”
Hlabane said the department would oppose an appeal on this judgment as it “fully agreed” with the Supreme Court of Appeal on the matter.
Tashriq Ahmed, human rights attorney for the asylum seekers, said he and his clients would appeal the judgment.
Ahmed said: “We are definitely going to appeal. We are aggrieved but we always knew this matter would ultimately end up at the Constitutional Court because it is a constitutional matter.”
He said for the past 13 to 15 years they were allowed to apply for visas and then things suddenly changed, hence they felt this ruling was “not fair”.

No more visas in country for asylum seekers

No more visas in country for asylum seekers
28 September 2017 – Cap Talk
Last week saw the Supreme Court of Appeal overturn a 2003 Western Cape High Court judgment brought by the Legal Resources Centre on behalf of 13 asylum seekers to apply for visas while in South Africa.
The SCA has ruled that now asylum seekers may no longer apply for any type of visa while they are in South Africa, but must do so before entering the country.
Immigration Lawyer Craig Smith talks to CapeTalk’s John Maytham about the implications of the judgment.
Prior to last week’s judgment, there has been a long-established law in place where an asylum seeker could apply for immigration status within South Africa, says Smith.
There has been no fightback form Home Affairs….and puts the scale back to a restrictive approach rather than a human rights one.

July Arrivals: The verdict is in

July Arrivals: The verdict is in

29 Sep 2017 16:05 (UTC+2)
July Arrivals: The verdict is in

Stats SA has released its latest tourism and migration report and the verdict on July arrivals is in. Total arrivals are up by 2% and overseas arrivals are up 10%, with Central and South America leading the charge at 90% year-to-date growth.

Brazil arrivals continue to grow exponentially with a year-to-date increase of 119%, as 17 524 arrivals in 2016 increased to 38 460 arrivals in 2017. Argentina isn’t far behind Brazil, at an 89% year-to-date increase and a 71% month-to-month increase. While Mexico has shown a 42% year-to-date increase.

Europe saw an overall Year-to-date increase of 10%. France, Spain, Germany and The Netherlands continue their year-long trend of growth, coming in at 31%, 19%, 15% and 12% year-to-date growth a piece. France went from 80 368 arrivals in 2016 to 105 494 arrivals in 2017. While Spain displayed a 16% month-to-month increase and Germany went from 155 371 arrivals in 2016 to 178 328 arrivals in 2017. Other notable European countries are Austria which grew 20% both month-to-month and year-to-date, and Sweden which grew 16% year-to-date.

North America increased by 8% year-to-date, but decreased by 1% month-to-month. The USA went from 199 853 arrivals in 2016 to 215 680 arrivals in 2017, but remained static on a month-to-month basis. While Canada decreased 10% month-to-month and only increased by 7% year-to-date.

The four markets showing the greatest decline came from Europe, Asia and Australasia. Ireland arrivals continue to nosedive, showing 38% year-to-date decrease, with just over 6 000 fewer arrivals occurring in 2017 compared with 2016. New Zealand and Iran also saw a 23% year-to-date decrease, while China dropped a further 16%.

The fastest growing African markets are Mauritania with an 89% year-to-date increase, Guinea-Bissau which increased by 60% year-to-date, Libya which is sitting at a 41% year-to-date increase, and Gambia which came in at a 30% year-to-date

Cape Town has the second lowest cost of living for expats globally

Cape Town has the second lowest cost of living for expats globally
2017-10-01 – Traveller 24

Cape Town – We’ve all been feeling the pinch over the past year – and with sugar tax looming, the cost of living the sweet life in SA will be even higher.
But while the pinch might be hurtful to local Saffas, expats in South Africa are still having the time of their lives – R20 for a cup of coffee might sound expensive to you, but it’s practically free for someone paying in pounds.
That’s why Cape Town was recently featured as the city with the second lowest cost of living for expats globally, beaten only by another southern sweet spot, Windhoek in Namibia.
This according to Mercer’s annual Cost of Living Survey, which ranks cities across the world on the affordability of living for expats.
The survey gives travellers an idea of what the actual cost of living will be for employees living abroad.
Accommodation, basic goods and services are all taken into consideration in the ranking, and the differences in various cities’ cost of living can be measured by the cost of renting an apartment or the price of a cup of coffee. Scores are determined by cities’ individual rankings, compared to base city of New York City in the US.
Hong Kong has ranked in the first place as the city with the highest cost of living for expatriates, knocking Africa’s most expensive city, Luanda, off the top spot for 2016.
Although global financial centres in Europe and the United States are often considered some of the most expensive places to live, Mercer’s top 10 ranking is dominated mostly by Asian and north African cities.

There are only two European cities – Zurich in third place and Geneva in eighth – in the top 10.
London is much further down the list in 17th place, while Paris is in 44th place. The highest-ranking city in the United States is New York, which just misses out on the top 10, coming 11th.
In Hong Kong, a modern, two-bedroom apartment will cost you more than R100 000 per month, compared to under R15 000 in Cape Town.
A cup of coffee, for example, would set you back more than R100 in Hong Kong, compared to just over 20 bucks in Cape Town.
Plus, Cape Town’s coffee is much tastier than Hong Kong’s…

Cape Town was crowned the coffee capital of the world when the iconic Truth Coffee Roasting was named the very best coffee shop in the world for the second year running by acclaimed UK news agency, The Telegraph.
The Mother City was also recently named as the very best city in Africa and the Middle East, as well as the 10th best city globally by Travel + Leisure in New York. This right after US News & World Report also ranked the Mother City as the 11th Best Place to Visit globally, saying “the Mother City is unlike any other destination in Africa”.
Viva, Cape Town!

Spain emerging as top investment for South Africans

Spain emerging as top investment for South Africans
30 September 2017 – MoneyWebb

As more South Africans look to invest in property abroad, Spain’s golden visa programme is offering them one of the best deals in global real estate.
With the Spanish property market in full growth phase and Spain’s GDP growth nearly double the Eurozone average at 3.2%, Spanish real estate is emerging as a strong investment for foreign nationals.
For South Africans looking to buy property overseas, the benefits of investing in the Spanish market are two-fold; buyers can make a return on their investment and can easily rent their second home to either locals or the millions of tourists who visit Spain each year.
But even more appealing than the financial returns of Spanish property is Spain’s decision to grant residency permits to non-EU citizens who buy property worth 500 000 euros or more. Spanish residency permits are extended to the property owner’s spouse and children.
Although the high price tag limits Spain’s golden visa programme to the wealthy, Spanish residency permits give South African families the ability to travel visa-free to Spain and within the Schengen zone, access to some of the finest schools, universities and healthcare systems in the world and establish or expand their business in the stable European economy.
What should investors be aware of before investing?
As with any overseas investment, there are tax implications associated with buying foreign property from South Africa that investors should be aware of before diving into Spanish real estate.
Under current legislation, South Africans are only permitted to take R10 million out of South Africa each year, equivalent to just under 630 000 euros. Whilst this is more than enough to cover the cost of buying a 500 000 euro property and securing Spanish residency, it is something for investors to bear in mind should they wish to purchase a more expensive property.
Investors should also be aware of local taxes before purchasing property in Spain. In Spain, these taxes include IBI tax (Impuesto de Bienes Inmuebles tax – the local property tax), income tax, wealth tax and community owners tax. IBI tax, community owners tax and income tax are all comparable to municipal taxes and tax on rental income in South Africa whilst wealth tax only applies to properties over the value of 700 000 euros, making it worthwhile for investors to stay below this threshold.
Sergio Codonyer, managing director of Door, believes that despite the tax implications of buying property overseas, we will see a rise in the number of South Africans investing in Spanish real estate.
“The costs associated with investing in Spanish real estate apply to all foreign markets, every country in the world has some form of local property tax. With the Spanish property market booming and the many benefits attached to Spanish residency, I think the opportunities Spanish real estate can open to South African clients far outweigh the cost of local taxes.”
Where and how to invest
For South Africans looking to invest in Spanish real estate, the best markets are Catalonia and coastal Spain due to their booming tourist industries and the rising capital growth of properties in the areas. Barcelona is especially popular among investors due to the high demand for rental properties and the projected 7% rise in value of Barcelona property for 2017.
Investors should be sure to do their research and visit Spain before investing in Spanish property and should consult with a lawyer and a trusted local estate agent at all stages of the process to ensure that they are being properly assisted with local law, tax and residency issues.
www.sami.co.za

Zimbabweans get four-year grace

Zimbabweans get four-year grace

    Mail & Guardian 29 Sep 2017
    Zimbabweans have become part of South Africa’s fabric. There are anywhere between one and three million Zimbabweans living and working in the country.
    More than 200 000 Zimbabweans are here on a special visa that will expire at the end of the year. Although government has outlined paths for them to remain in the country legally, the process is clouded by confusion and bureaucratic hurdles.
    It should come as little surprise that, seven years after South Africa introduced the Dispensation of Zimbabweans Project (ZDP), which offered amnesty to Zimbabweans who had been living in the country with fraudulent documents, those who hold these permits have become part of South Africa’s economic and social makeup.
    A total of 242 731 Zimbabweans were granted a permit under the banner of the ZDP in 2010. The department of home affairs waived fees and the need for certain supporting documents, including passports.
    Shortly before the ZDP was due to expire in December 2014, the Zimbabwean Special Dispensation permit (ZSP) replaced it, under the same condition that it would not be renewable.
    Instead, ZSP holders were advised that, following the permit’s expiration on December 31 2017, those who qualified for a standard visa in South Africa would have to apply in Zimbabwe, where the processing time is about two months, without accounting for delays. Those who did not qualify for a standard visa would have to return to Zimbabwe.
    But, as the December 31 deadline approached, there was little clarity from home affairs about how it would be implemented, causing uncertainty among Zimbabwean permit holders, their families and their employers.
    This month, recognising that it was simply not feasible to deport more than 200 000 people, home affairs outlined ways in which Zimbabweans covered by the ZSP could legally remain in South Africa.
    “Should the minister have refused to extend the ZSP programme, the South African fiscus would have had to support an unrealistic volume of deportations,” said Gary Eisenberg, an immigration attorney. “The minister had no option but to extend the programme, relieving the political and socioeconomic burden that South Africa would have had to bear in a situation where 200 000 foreigners [would have] no immigration status come 1 January 2018.”
    This potential turmoil was not lost on Mkhululi Sibanda, a 35-year-old Zimbabwean who has been working in South Africa as a foundry foreman for 10 years, and whose ZSP will expire at the end of the year.
    “Imagine, I’ve been working in the same organisation for 10 years, and my provident fund is standing at close to R1-million now. If hundreds or thousands of us [Zimbabweans] take this money out, what will happen to South Africa’s economy?”
    Sibanda has been plagued by uncertainty ever since his ZSP was issued in December 2014. He arrived in South Africa in May 2007 when, he said, there was a general lack of knowledge about permits. At first, his employer had allowed him to work on a visitor’s visa.
    When Home Affairs Minister Hlengiwe Mkhize announced that the ZSP could be renewed under certain conditions, Sibanda was overcome with relief. He is married to a South African, and had dreaded the thought of returning to Zimbabwe for two months or more to apply for a visa that would not necessarily be granted.
    “As a permanent employee in South Africa, I can hardly get a single day off work,” he said. “Leaving my job for two months … that would be the end of me and my family.”
    Under the new conditions, Sibanda has two options. The first is to apply for the new Zimbabwean Exemption Permit (ZEP), a kind of extension of the ZSP. This expires in December 2021, with little clarity on what comes next — it essentially just kicks the immigration can four years down the road.
    The second is to apply for a mainstream visa in South Africa, which means he does not have to risk his livelihood during a prolonged stay over the border.
    Sibanda can also apply for a spousal visa, which should settle his immigration status once and for all.
    For Zimbabweans like Sibanda, who qualify for mainstream visas — business owners, students, individuals with critical skills and those married to South Africans — this is good news.
    Finally, they will be able to escape the confines of a rigid and unpredictable dispensation programme, which holds them hostage to the next round of political negotiations when the ZEP’s expiry date nears.
    But the majority of Zimbabweans, who don’t qualify for mainstream visas, may never circumvent the red tape.
    Nyasha Maziye, a Zimbabwean with a degree in accounting, designed and now runs short courses in information communication technology. Despite his contribution to the economy, Maziye does not qualify for a mainstream visa.
    Eisenberg says that is because South Africa’s entire immigration system is outdated, and not fit for purpose. “South Africa’s immigration system has failed to increase the quality of immigrants,” said Eisenberg. “Its critical skills programme in particular is devised from purely anecdotal occupational category creations.”
    Were Maziye a sheep-shearer, a customer services manager or somebody with one of the other “critical skills” on an infrequently updated list, he would be eligible for a critical skills visa and, after five years, a permanent residence permit. But, as Eisenberg pointed out, the critical skills programme does not reflect the skills deficits in the economy.
    Former director general at home affairs and current chairperson of Corruption Watch, Mavuso Msimang, agrees that South Africa needs a new, more progressive approach to immigration. “We should deal with the reality that South Africa, with the biggest economy in Africa, is perceived to offer the best business and job opportunities.”
    Until reform happens, however, the question of “what next” still hangs in the air — and the process remains complicated and confusing — especially for Zimbabweans who must find a way to navigate through the bureaucracy.
    There are also questions about the ability of VFS — the company at which visa applications are submitted before being processed by home affairs — to process all ZEP applications between September 15 and November 30 this year.
    “The minister has unfortunately not given ZSP holders sufficient time. It may take two or three months to prepare a critical skills work visa application, which includes the evaluation by SAQA [the South African Qualifications Authority] of foreign qualifications, the registration with professional bodies, and so forth,” Eisenberg said.
    Since the ZEP announcement, Sibanda has been seeking information from VFS about his visa application. “There is a cloud over my head due to a lack of information at the VFS,” he said.
    “Unfortunately, we foreigners are never treated like human beings at these offices.”

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