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5 New Visa Changes South Africans Need to Know About Before Heading to the UK

UK immigration minister, Caroline Nokes, recently made a number of surprising announcements as the country prepares to make visa reforms.

Below, Breytenbachs Immigration Consultants broke down some of the most important changes and what they will mean for South Africans.

Tier 1 Entrepreneur visa to be replaced by innovator route

The current Tier 1 Entrepreneur route will be replaced by a new Innovator route, for more experienced business persons.

It will have a “similar emphasis on endorsement by a business sponsor, who will assess applicants’ business ideas for their innovation, viability and scalability”.

“We subsequently encourage applicants who still want to apply under the current Tier 1 Entrepreneur route, to contact us without delay,” Breytenbachs said.

New start-up visa route

Earlier in 2018, the UK Government announced that it will establish a new Start-up visa route. This route will build on the Tier 1 Graduate Entrepreneur route.

Applicants under this new route will have to be endorsed by either a business or higher education institution sponsor.

No clarity on Tier 1 investor route

The UK Government announced on 6 December 2018 that the Tier 1 Investor route is suspended.

It added this route will from 7 December 2018 no longer be open for applicants to apply, and that new rules will be put in place sometime during 2019.

However, the Home Office has since released an official statement to the Immigration Law Practitioners’ Association (ILPA) stating the following:

“The Tier 1 (Investor) visa is not currently suspended. However, the Government remains committed to reforming the route. A further announcement will be made in due course.

“Any suspension would be implemented through changes to the Immigration rules.”

Tier 1 exceptional talent extended to architects

The Tier 1 Exceptional Talent route will be expanded to provide for the inclusion of leading architects.

These architects will have to be endorsed by the Royal Institute of British Architects, under the remit of the Arts Council England.

Tier 5 religious and charity workers

Tier 5 Religious Workers and Tier 5 Charity Workers will in future have a cooling off period.

This cooling off period will prevent them from returning to the UK for 12 months, on another Tier 5 visa. This step is taken to underpin the fact that this is a temporary route.

 

For information as to how Relocation Africa can help you with your Mobility, Immigration, Research, Remuneration, and Expat Tax needs, email marketing@relocationafrica.com, or call us on +27 21 763 4240.

Sources: [1], [2]. Image sources: [1], [2].

Kenya, South Africa to Launch Long-term Multiple Travel Visas

Long-term visas will become available for South Africans wanting to travel to Kenya and Kenyans wanting to visit South Africa as of December 1.

The announcement was made by Home Affairs Minister Malusi Gigaba and his Kenyan counterpart Interior Minister Fred Matiang’i on Monday after the two held bilateral talks and took a tour of Lindela Repatriation Centre in Krugersdorp.

In September Gigaba announced that South Africa would be easing some immigration rules including agreeing to visa waiver agreements with more countries in an effort to boost investment and tourism as part of a broader economic turnaround programme announced by President Cyril Ramaphosa.

The two leaders said both countries would continue working on ways to maximise their cooperation and allowing for passport holders to have long-term multiple entry visa arrangements for business people, academics and frequent travellers between the two countries.

“It’s a historic achievement, we made tremendous progress,” said Matiang’i.

He said as of the arrangement would benefit both countries tremendously.

“This is intended to improve trade between the two countries, interaction between the two countries and to support the people between the two nations engaging in various economic activities of mutual benefit,” said Matiang’i.

He told journalists at the briefing that the east African country viewed its relationship with South Africa as critical and that the presidents of both countries – Ramaphosa and Uhuru Kenyatta – had instructed both ministers to work towards removing barriers and impediments to the growing relationship.

“And today we made a huge achievement in removing those barriers, whatever is left, we will be able to sort out in the next three months,” said Matiang’i.

Praise for Lindela

The Kenyan minister said he believed relaxing visa requirements would lead to the most “seamless interaction between South Africa and Kenya in history.”

Matiang’i also praised the repatriation centre, which he said was a “luxury” for deportees waiting to be processed and taken back to their respective countries.

“The minister has taken me through this facility, I am basically floored, shocked that South Africa actually makes this kind of investment to address the needs of deportees,” said Matiang’i.

South Africa’s home affairs minister, in turn, thanked Kenya for its efforts in preventing illegal immigrants from making their way to the country.

“I thanked the minister for the work they continue to do to repel a lot of illegal immigrants destined for South Africa, on a daily basis hundreds of people are being stopped in Kenya who are destined for South Africa,” said Gigaba.

He added that Kenya contributed to keeping the country safe.

Gigaba said the partnership would contribute to tourism in the two countries and support the visions shared by both Ramaphosa and Kenyatta for free movement of people between the countries.

He said academics and business people would be able to get ten-year visas, while frequent travellers would be able to apply for three-year multiple entry visas, a feat Gigaba said would also alleviate administrative pressure on their respective departments.

 

For information as to how Relocation Africa can help you with your Mobility, Immigration, Research, Remuneration, and Expat Tax needs, email marketing@relocationafrica.com, or call us on +27 21 763 4240.

Sources: [1], [2]. Image sources: [1], [2].

SA Constitutional Court Issues Asylum Seeker Ruling

An application for leave to appeal against a decision of the Supreme Court of Appeal was settled this week in South Africa’s Constitutional Court. The case concerns the question whether asylum seekers, including those whose applications for refugee status have been refused, are eligible to apply for other visas and immigration permits in terms of the Immigration Act. The applicants also sought an order setting aside a Department of Home Affairs (Department) directive, Immigration Directive 21 of 2015 (Directive), which requires Departmental functionaries to refuse all applications for temporary and permanent residence visas made by the holder of an asylum seeker permit.

The order issued is as follows:

  • Leave to appeal is granted.
  • The appeal is upheld and the order of the Supreme Court of Appeal is set aside.
  • To the extent that Immigration Directive 21 of 2015, issued by the Director-General of the Department of Home Affairs on 3 February 2016, imposes a blanket ban on asylum seekers from applying for visas without provision for an exemption application under section 31(2)(c) of the Immigration Act 13 of 2002, it is declared inconsistent with the Immigration Act 13 of 2002 and invalid.
  • To the extent that Immigration Directive 21 of 2015, issued by the Director-General of the Department of Home Affairs on 3 February 2016, prohibits asylum seekers from applying for permanent residence permits while inside the Republic of South Africa, it is declared inconsistent with Regulation 23 of the Immigration Regulations, 2014 published under Government Notice R413 in Government Gazette 37697 of 22 May 2014 and invalid.
  • There is no order as to costs.

While this is good news for SA’s asylum seekers, it remains to be seen what the Department of Home Affairs’ reaction to the judgement will be.

To read the full case details, click here.

 

For information as to how Relocation Africa can help you with your Mobility, Immigration, Research, Remuneration, and Expat Tax needs, email marketing@relocationafrica.com, or call us on +27 21 763 4240.

Sources: [1], [2]. Image sources: [1], [2].

MPs Challenge Home Affairs on Still Unopened Refugee Centers

Parliament’s watchdog on home affairs is seeking answers as to why the department has not opened its two refugee reception offices.
On Tuesday, MPs grilled the department on the refugee reception office and why they had failed to open the offices in Cape Town and Port Elizabeth. This was despite a court ruling to open refugee centres.

“Once public works hands over the tender installation, then we as home affairs can come in and do our installation of equipment and furniture, this process will take eight weeks to do,” acting director-general at home affairs, Thulani Mavuso, said.

The department has constantly maintained it was waiting on the Department of Public Works to provide suitable office accommodation.

MPs gave home affairs officials a grilling on what progress the department had made so far.

Advocacy groups Sonke Gender Justice and The Scalabrini Centre have recently decided to bring forward contempt of court proceedings against the Department of Home Affairs.

The Supreme Court of Appeal (SCA) found the department’s decision to close the refugee reception office to new applications for asylum unlawful and irrational, and ordered the department to reopen and maintain a fully functional office in the Cape Town metropolitan area by March 31.

It further ordered the department provide monthly reports on its progress in complying with the order.

The Nbaya case, launched in 2015 through the Legal Resource Centre on behalf of asylum seekers, relates to the renewal of the permits of asylum seekers at the refugee reception office.

This should happen even if they lodged their applications at other refugee reception offices around the country.

In this case, the Western Cape High Court found that the department’s policy of refusing to renew asylum permits from other offices was unlawful and ordered it to renew the permits of asylum seekers residing in Cape Town or to be informed of any decision relating to his or her application through the Cape Town refugee reception office.

“We never had a problem supplying monthly reports, we have concluded a discussion with the two groups to supply a report this week,” Mavuso said.

Portfolio manager of Public Works Reggie Ncobo said: “We have commenced with the procurement process, there were two options explored as a procurement model which the regional office has identified as state owned property in Maitland.

“The idea is for permanent and interim and thereafter we will be advertising a tender process.”

The department said the refugee centres would be opened next year.

 

For information as to how Relocation Africa can help you with your Mobility, Immigration, Research, Remuneration, and Expat Tax needs, email marketing@relocationafrica.com, or call us on +27 21 763 4240.

Sources: Marvin Charles via IOL [1], [2]. Image sources: [1], [2].

SA Constitutional Court Rules on Extension of Temporary Permits

In an important victory for the rights of asylum seekers, the Constitutional Court has found that their temporary permits must automatically be extended while their case is under judicial review.

South Africa is home to at least 400,000 asylum seekers and refugees. An asylum seeker is someone who claims, in an application to the Department of Home Affairs, to have fled from a place where they have been persecuted or where they are in danger. A refugee is someone who has been granted asylum either by government or a court.

Before asylum seekers get official refugee status they are granted a temporary permit which allows them to remain in the country until their application has been dealt with. Official refugee status can often take time and many applications are rejected.

When an application is rejected, an asylum seeker can go through an internal appeal, up to the Refugee Appeals Board. If that too fails, he or she can take the matter on judicial review in the High Court. During this time, the Refugees Act allows a Refugee Reception Officer to extend the asylum seeker’s temporary permit from time to time.

The question that arises is: up to what point is such an extension allowed? And is the extension automatic or does a Refugee Reception Officer have the discretion to refuse an extension?

The case before the Constitutional Court was brought by several asylum seekers from Cape Town whose applications for official refugee status had been rejected. They were represented by the Legal Resources Centre. After exhausting internal appeals, they applied for an extension of their temporary permits pending judicial review. The extension was not granted.

The High Court found that a Refugee Reception Officer does have the discretion to extend a permit pending judicial review. However, the Court found that the extension is not automatic but at the discretion of the officer.

The Supreme Court of Appeal largely upheld the decision of the High Court.

Home Affairs appealed to the Constitutional Court to rule that a Refugee Reception Officer can only extend a permit until internal remedies in terms of the Act have been exhausted.

The asylum seekers cross-appealed and wanted the Constitutional Court to go further than the Appeal Court decision and find that an extension is not only permitted but also automatic.

The Constitutional Court explained that two legal issues had to be addressed:

Whether a Refugee Reception Officer has the power to extend a permit pending judicial review; and

If so, whether an extension is automatic or whether the Refugee Reception Officer must exercise discretion.

At issue was the interpretation of the word “outcome” in the Act. Home Affairs argued that this referred to “the final administrative outcome” in terms of the act.

The act provides for two layers of appeal if an application for official refugee status has been rejected: first, asylum seekers may approach the Standing Committee for Refugee Affairs, and if this fails they may approach the Refugee Appeals Board. According to this logic, once this outcome is reached no further extensions are permissible. For this reason, the outcome of a judicial review of the decision of the Appeals Board wouldn’t qualify as an “outcome” in terms of the act.

The court rejected this approach. Firstly, it emphasised that when courts interpret legislation they must do so in order to fulfil the key purpose of a piece of legislation.

And one of the key purposes behind refugee law, the court said, was to ensure that refugees are not returned to the circumstances from which they were seeking refuge. This means that “no one shall expel or return a refugee against his or her will, in any manner whatsoever, to a territory where he or she fears threats to life or freedom.”

Adopting the Home Affairs approach would mean that asylum seekers who have exhausted internal remedies in terms of the Act would be at risk of being deported, even if they were seeking refuge for valid reasons. It would be “cold-comfort” to argue that an asylum seeker would still have the option of approaching a court for interim protection: this could be unsuccessful for technical reasons, and anyway it would be expensive and impractical for an asylum seeker to institute legal proceedings once he or she had already been deported.

The Constitutional Court also emphasised that courts must prefer an interpretation of legislation that protects fundamental rights in terms of the Bill of Rights. If Home Affairs’s interpretation were adopted an asylum seeker’s rights to just administrative action, access to courts, life, human dignity, and freedom and security could be infringed.

For all these reasons, the court rejected Home Affairs’s interpretation and found that a Refugee Reception Officer does have the power to extend a permit, pending judicial review.

Here, the court found that the principle of “non-refoulement” — not sending a person back to a place where he or she would be in danger — would suggest that an extension must be automatic.

The court also said that if a Refugee Reception Officer did have discretion to refuse to extend a permit this would create a discrepancy in the Act. This is because the act enables the minister in certain prescribed circumstances to withdraw a permit but does not prescribe the circumstances under which a decision not to extend a permit may be made. Yet a refusal to extend a permit and the withdrawal of a permit have the same effect. The court found that it would not make sense that the Act gives more discretion to the Refugee Reception Officer than to the minister. So the court found that the only interpretation that would make sense is that an extension is automatic and the Refugee Reception Officer has no discretion at all.

The court declared — with a minority of judges dissenting — that a Refugee Reception Officer does have the power to extend a permit pending judicial review and that such an extension is automatic. The court awarded costs against Home Affairs.

The case will strengthen the situation of thousands of asylum seekers who are in a precarious position without official refugee status. It reduces the possibility of unjustified deportations and ensures that South Africa complies with its international obligations to protect refugees from persecution and threats to their life and safety.

 

For information as to how Relocation Africa can help you with your Mobility, Immigration, Research, and Remuneration needs, email marketing@relocationafrica.com, or call us on +27 21 763 4240.

Sources: GroundUp via Daily Maverick [1]. Image sources: [1].