Home Affairs to be taken to court – 5 April 2016

Groundup
Concern over withdrawal of rights of asylum seekers and refugees
Immigration lawyers have accused the Department of Home Affairs of being in contempt of a High Court order. This comes after the department withdrew an instruction allowing asylum seekers and refugees to apply for permanent residence without giving up their asylum or refugee status. The Department also withdrew an instruction allowing asylum seekers and refugees to apply for temporary residence without a valid passport.
Temporary residence visas include relatives’ visas and work visas.
“The effect of this is huge, as asylum seekers are struggling to get married and register the birth of their children with South African spouses,” the Forum of Immigration Practitioners said.
Another effect was that asylum seekers who did not have temporary residence could not open a bank account, FIPSA said. This made them vulnerable to crooks who preyed on them because they carried cash.
The directive signed by Mkuseli Apleni on 3 February 2016 explains that the Department believes that asylum seekers (who are yet to be granted refugee status) should not have their status changed, for example given permanent or temporary residence, until they are certified as refugees. Following this logic, the Department has withdrawn a circular of 2008 which had allowed asylum seekers to apply for permanent residence.
In the directive, Apleni, who is Director General of Home Affairs, states, “I wish to advise all immigration officials thatDepartmental Circular No. 10 of 2008 has fallen away since the 26th of May 2014 and is hereby officially withdrawn. All applications for change of status from asylum seeker permit to temporary residence visa which are still pending in the system should be processed as per this directive regardless of the date of application”.

Apleni’s directive comes in spite of a 2003 Western Cape High Court order. In the matter of Dabone and others vs the Minister of Home Affairs, the court instructed that asylum seekers and refugees should be able to apply for temporary residence permits and permanent residence without having to cancel their asylum seeker status or give up their refugee status.
Another important provision of the court order was that asylum seekers or refugees do not need to be in possession of a valid passport for their temporary residence permits to be processed or issued.
FIPSA said the Department’s new directive was “breaking the law” by deviating from the court order.
“The Dabone Judgement is in fact a consent order of court which means that as parties to the agreement the Department of Home Affairs have agreed to it and that it is binding. As such it cannot be appealed to a higher court and any deviation thereto constitutes a contempt of court,” said FIPSA.
FIPSA also said that VFS, which is the company that processes visa documents, had stopped accepting applications for temporary or permanent residence from refugees or asylum seekers.
FIPSA and other interested parties are to take the Department to court on 21 April 2016, with Tashriq Ahmed representing them. FIPSA told GroundUp that the Department had said it would defend the matter. “But it is a consent order, so it is inconceivable what defence they can mount. As we have seen before, Home Affairs have a pattern of just appealing matters to frustrate clients as justice is expensive, in the hope clients will run out of money.”
FIPSA said asylum seekers and refugees were vulnerable and few organisations took up their battle to win their rights under the constitution.
The Department’s spokesperson promised on Friday to respond to questions but has not yet done so.

Nigeria

NIGERIA (March 14, 2016) – Employers must immediately verify long-term work permits of foreign workers

What is the change? The Nigeria Immigration Service (NIS) is conducting a nationwide audit of all long-term work permits (known locally as the Combined Expatriate Residence Permit and Aliens Card, or CERPAC) that have been issued to foreign workers.

What does the change mean? The long-term work permits of all foreign nationals must be submitted to the NIS by either the employer or the employer’s representative for verification between March 14 -31.

Implementation time frame: March 14 – March 31.
Visas/permits affected: Long-term work permits (CERPACs).
Who is affected: Foreign workers with CERPACs.
Business impact: The verification system is a reminder for companies to make sure they are in compliance with immigration and work permit regulations.
Next steps: Employers must present the passports and CERPACs of their foreign national employees, a copy of the company’s expatriate quota and a copy of the company’s monthly expatriate quota return for February 2016 at their local NIS CERPAC Production Center. (There are eight such centers throughout Nigeria.) Foreign employees are not required to appear in person. BAL can assist in the process and present the required documentation on the employer’s behalf.

Background: The nationwide effort indicates that the government further clamping down on abuse of long-term work authorization. “The NIS going forward intends to ensure strict compliance of the long term work permit process and penalise companies that breach or abuse the process.” said Kunle Obebe, a partner with Bloomfield Law Practice in Lagos.

Nigeria passed an immigration law in June emphasizing compliance, and recently imposed new limits and monetary fines on business visitors who overstay.

Nigeria

NIGERIA (June 2, 2015) – Immigration Act imposes new work permit rules, higher penalties for non-compliance

What is the change? Nigeria’s Immigration Amendment Act, passed last week, revises the legal structure for issuance of work permits and imposes steep monetary penalties on companies for non-compliance.

What does the change mean? Companies hiring foreign workers may benefit from clearer rules but also have greater responsibilities to comply with all rules regarding work permits, expatriate quotas, timely renewals and monthly reporting.

Implementation time frame: Immediate.
Visas/permits affected: Work permits, residence permits.
Who is affected: Employers and expatriate employees.
Impact on processing times: The new framework may help streamline work permit processing.
Business impact: The law imposes significant liability on companies to make sure they and their expatriate work force maintain compliance with the law. Companies face fines of up to US$15,000 for violations, such as failing to renew work permits or expatriate quotas in a timely manner.
Next steps: Employers should be familiar with the new law and its requirements and may wish to contact their BAL representative for assistance.

Background: The Immigration Amendment Act 2015 was signed into law May 25 by outgoing President Goodluck Jonathan. It codifies the legal authority of the Comptroller General of Immigration to issue work permits.

Under the act, companies are required to “show evidence of immigration responsibility or any other security on behalf of an expatriate employee before a resident permit is granted.” This provision puts the onus on employers to make sure their expatriate employees are in full compliance with the laws. While “any other security” is not defined, it is being interpreted to mean that Nigeria may require employers to pay a guarantee to sponsor some work or resident permits.

If convicted of immigration violations, a company and/or employee will be liable for fines. Here is a summary of penalties:

Companies are liable for approximately US$10,000 for any violation instigated by, or attributed to the neglect of, a company’s director, manager or secretary.
A company that fails to renew its expatriate quotas on time or to file expatriate monthly returns is liable for approximately US$15,000 in fines. In addition, an individual company official responsible for the filings is subject to a fine of US$5,000.
A foreign employee who changes jobs and does not obtain work permit approval from the new employer before starting work is subject to deportation.
A catch-all provision covering violations not specified in the law imposes a fine of about US$5,000 and/or one year of imprisonment.
An individual who alters travel documents is liable for a fine of US$10,000 and/or three years of imprisonment.
Airlines will be fined US$10,000 for knowingly carrying a passenger who is not in compliance with immigration laws.

South Africa

Mos Def case postponed as State wraps up investigation

He was flanked by family and friends as he walked along the corridor to where Home Affairs officials waited near the court room.

He was arrested at Cape Town International Airport for not being in possession of a valid passport.

The artist‚ who goes by the name of Yasiin Bey‚ is fighting to remain in the country with his family.

After a brief appearance the state asked that the matter be postponed to finalise its investigation.

His next court appearance is March 24.

Last month‚ his wife and four children were granted an interim order to stay in the country pending their application to stay in South Africa while the legal system dealt with his case. The family’s visas had expired in April 2014.

Mos Def’s lawyer‚ Shaheid Schrueder‚ had asked the court “to allow them as a family to stay together and leave together if and when the matter is disposed of”

“There are seven members of the family and minor children. They need to leave together with mother‚ father and grandmother to whichever destination they choose.”

Despite the legal turmoil‚ Schrueder said then that Mos Def was having a good time.

“He is on holiday‚ he is doing nothing and is enjoying his time with his family‚ and that is exactly why he is here in South Africa‚” Schrueder said. “His bail conditions have been relaxed and he is just to remain in the country at this stage. He does not have to sign at the police station