FIPSA to challenge new immigration laws in court

While incoming minister of Home Affairs Malusi Gigaba recently announced new immigration rules, the Department of Home Affairs (DHA) decision to implement the new laws has been met with criticism. The new laws extend to visa applications, permanent or temporary stay, and to foreigners looking to set up businesses in South Africa.  In response to the new regulations, the Forum of Immigration Practitioners of South Africa (FIPSA) is challenging the DHA‘s decision in court and wants Government to review and amend some of the rules.

Chairman of FIPSA, Gershon Mosiane, explained that FIPSA’s opposition of the regulations is due to the fact that the new immigration regulations may result in unintended consequences, which he asserts is not a security issue.

“We as FIPSA have no problem with biometrics, which is the only security feature that relates to the new immigration regulations,” Mosaine said.

He further noted that FIPSA’s opposition of the new regulations does not relate to the issue of unabridged birth certificates, but  instead relates to business visa’s, work visa’s, critical skills, and spousal visa’s, since laws pertaining to these categories give rise to constitutional issues.

Mosaine stated that the Western Cape High Court affirmed that the new immigration laws are unconstitutional in relation to spouses of South African Citizens.

With regards to business visas, he said that multinationals are expected to invest a minimum of R5 million rand in the country, but government intends to interfere in the feasibility of their businesses.

He said that in terms of work visas, foreign nationals are generally unable to acquire a letter of recommendations for the Department of Labour.

“Therefore, we cannot get the correct skills that are needed in the country.”

Mosaine explained that various professional bodies, who have issued critical skills letters, were not informed that they are not mandated to issue such letters.

He said that FIPSA decided upon taking action against the DHA after no agreement was met following constant engagement.

“In a constitutional democracy, if there is no agreement as to the interpretation of the law in the country, our courts are the only option that will then give direction as to whether these regulations are fair, reasonable, and constitutional,” he continued.

Mosaine further noted that since the regulations were not well drafted, which may result in unintended consequences, FIPSA is requesting that the DHA redrafts the regulations.

He said that FIPSA is also contesting the repealing of Section 46 by the DHA that included immigration practitioners. And since FIPSA has registered as a professional body with the South African Qualifications Authority (SAQA), the forum is the only recognized immigration authority.

In addition, FIPSA is challenging the awarding of the tender to VFS, since the minister cannot delegate his authority to a third party.

How will South Africans be affected by these amendments?

Mosaine explained that South Africa’s economy will be impacted by these changes as companies will be deterred from investing in the country, which will subsequently impact job creation.

In addition, he said that such regulations will impact the influx of necessary skills, consequently impacting the economy, and further noted that the new laws will affect the constitutional right of association of citizens who have relations with foreigners.

“We are not a country in isolation, we have to participate globally, and our regulations do not assist us in that regard…You are not compromising your security, you are simply making it less cumbersome for individuals to invest in South Africa,” he said.

Mosaine concluded that FIPSA will not stop attempting to engage with the DHA and is willing to settle the matter once the regulations are amended.

For more information on FIPSA contact tracy@relocationafrica.com