Tag Archive for: Department of Home Affairs

Andrew Stegmann

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.

 

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

Andrew Stegmann

Expect Stricter Requirements When Applying for a Schengen Visa

South Africans travelling to certain European Union (EU) countries may now face stricter requirements when applying for a Schengen visa.

This is according to immigration lawyer Gary Eisenberg who was speaking to Cape Talk’s Kieno Kammies after a number of listeners complained of extra requirements when applying for a Schengen visa to visit Spain.

Some of ways that these requirements have been tightened include an increased turn-a-round time, while certain documents need authorisation by the Spanish police, Eisenberg said.

The immigration expert said that additional requirements have been introduced after BLS International Services replaced VFS Visa & Permit Facilitation Centre as a new visa facilitation company for the country.

He said that BLS has its own proprietary standards when it came to applications, meaning that Spain had tightened its requirements when it comes to offering South Africans a Schengen visa.

When asked how other countries within the Schengen block were affected, Eisenberg said that there were no specific changes but rather an overall tightening of documentation from ‘high-risk’ countries such as South Africa.

“I think countries are becoming far more careful on documentation emanating from countries like South Africa which are seen as high risk for fraudulent documentation, and this is why Britain has imposed visa restrictions on South Africa, ” he said.

“We see on a daily basis foreigners living in South Africa with fraudulent visas and fraudulent identity documents, and this seems to be common place.

“So governments I think, are united in their drive to screen documents more carefully,” he said.

The 26 Schengen countries are: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.

Visa requirements

While the Department of Home Affairs confirmed, at the end of January 2018, that visa-free travel to the EU was still being discussed for South Africa, the majority of European Union countries will not allow South Africans to enter without a Schengen or similar visa.

According to Arton Capital’s latest Passport Index, South Africans can currently apply for visa-free travel to 95 countries.

However, only Ireland forms part of mainland Europe, while several other countries such as Russia, Kosovo, Georgia and Armenia are given status as being part of “Eurasia”.

You can find the complete of list of countries for which South Africans do not require a visa, or only require a visa on entry here.

 

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.

Source: BusinessTech. Image source: [1].

Andrew Stegmann

Major Crackdown on Corrupt SA Government Officials

Police Minister Bheki Cele says nine officials from the Departments of Home Affairs and Correctional Services are expected to appear in the Johannesburg Magistrate’s Court on Monday.

Cele says the officials were arrested in Soweto and Johannesburg on Friday on charges of corruption after they released thirty-six parolees without following due process.

The minister says the officials allegedly did so for financial gain.

“The officials were allegedly involved in illegally releasing at least 36 parolees, all of whom were women, over a period of more than a year without following proper procedures for financial gain. The foreign parolees, most of whom were drug smugglers or drug mules, had to be released and deported to their country of origin through Lindela Deportation Centre. Instead they were sent directly to the Johannesburg Department of Home Affairs regional office for an unprocedural and illegal early release,” says Cele. “Some remained in South Africa, of which six of them have been rearrested, and it emerged that these six had no intention of leaving South Africa.”

The rest left the country of their own accord.

Cele says the parolees hail from Guyana in South America, Congo, Nigeria, Ghana, Zambia, Zimbabwe, Mozambique and Lesotho.

Cele says since the start of the investigation in 2016, at least twenty-six corrupt officials were identified.

“However after extensive consultations with the Directorate for Public Prosecutions, it was decided that 11 officials should be indicted given the level of evidence against them,” says Cele. “Nine of the suspects were arrested and detained in Johannesburg central. The 10th suspect is still being sought and the 11th suspect died in a motor vehicle collision last month.”

Cele says the investigation revealed that the officials were either paid in cash or the money was transferred into their bank accounts by families or friends of the parolees.

“Officials would demand bribes of the amount of R3000 for those from African countries and R6000 for those from outside Africa, like South American countries.”

 

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.

Source: Neo Motloung, Jacaranda FM. Image source: [1].

Andrew Stegmann

South African eVisa Roll-out Set To Commence

The roll-out programme for eVisas in South Africa will commence in the last quarter of the next financial year, by March 31, 2019, according to a written statement by the Department of Home Affairs, to Shadow Minister of Tourism, James Vos.

The statement indicated that “the roll-out programme will be gradual starting with Phase 1, Release 1, which entails applications for temporary residence visas, adjudication of temporary residence visas, applications for waivers, notifications to the applicant via email and biometrics captured at the Mission. The ePermit will be piloted at one Mission or local office in the last quarter of the next financial year by 31st March 2019. This is to ensure system stability. Once stable, more offices locally and abroad can then be gradually brought online.”

Vos says he had been calling for an eVisa system to facilitate easier access for tourists to South Africa, as well as the scrapping of the unabridged birth certificate requirement, which have both hampered tourist access to the country and seen a resultant decline in international tourist arrivals. “South Africa’s tourism industry is still recovering from the disastrous visa regulations debacle which, according to the Southern Africa Tourism Services Association, resulted in an estimated R7.5bn (€506.5m) loss to the tourism economy and a decrease of about 600 000 tourists.”

With the rand being at its lowest point in 14 years, South Africa should be thriving as a tourist destination for foreign travellers, says Vos. “But in spite of this, the government’s visa regulations continue to make it difficult for tourists to select South Africa as a destination due its cumbersome visa application processes.”

An eVisa system could mean a greater tourist influx, as well as local job creation. Vos concludes: “We need to streamline tourist facilitation to our country to make it easier for travellers to select South Africa as a country of choice when it comes to travel and trade. Ultimately government should cut the red tape and roll out the red carpet.”

The eVisa system will operate as follows, according to the written statement by the Department of Home Affairs:

“eVisa introduces online capture of visa and permit applications and capturing of applicant’s biometrics in South Africa and abroad. An application will be captured and submitted online together with the required supporting documents that will be scanned and attached to the application. The applicant will then present himself/herself before a DHA Official for biometric enrolment and verification of the submitted supporting documents is conducted at this stage”.

“The application form together with supporting documents and biometrics are then electronically routed to DHA Head Office in Pretoria for adjudication. The applicant is electronically notified of the outcome via email as well as via the application portal. For an approved visa/permit, a secure QR-Code is generated for print on the notification notice/letter sent to the applicant. This QR-Code contains the approved visa/permit detail and is maintained and managed by DHA at a secure web-storage facility”.

“The same QR-Code will be scanned to view and validate the issued virtual visa/permit upon arrival of the applicant within the Republic. The same QR-Code is also pre-loaded into Biometric Movement Control System upon approval of the application and the virtual visa/permit (eVisa/ePermit) will be further validated at the Port of Entry upon arrival of the applicant”.

 

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.

Source: Kerry Hayes, Tourism Update. Image source: [1].