The Special Investigating Unit (SIU) in South Africa is cracking down on visa fraud by revoking more than 100 study visas believed to have been obtained through dishonest means. SIU head Andy Mothibi made the announcement on Tuesday, shedding light on a year-long investigation aimed at cleaning up corruption in the country’s immigration system.

A Deep Dive into the Visa Fraud Probe
The SIU, a government body responsible for tackling corruption and wrongdoing in state institutions, kicked off its investigation into visa irregularities last year. The probe targets a range of visa types, including permanent residence permits, business visas, work visas, and study visas. Speaking at the launch of the Border Management and Immigration Anti-Corruption Forum in Pretoria, Mothibi revealed that “we have referred about 110 study visas to be revoked, which were obtained on the strength of fraudulent supporting documents.”

These fraudulent documents could include fake acceptance letters from schools, doctored financial statements, or other forged paperwork. Mothibi stressed that the SIU is following a strict legal process to ensure the visas are officially cancelled, adding, “At an appropriate time, we will indicate to the public the outcomes of that investigation.”

Why This Matters to South Africans
Visa fraud isn’t just a legal headache—it affects real people and the country’s reputation. Students with fake visas might take spots meant for genuine applicants, while corruption at borders undermines trust in the system. The SIU’s move to revoke these 110 study visas shows a commitment to fairness and accountability, protecting South Africa’s borders and its educational institutions.
The human cost is significant too. Those holding these fraudulent visas could face deportation, disrupting their lives and plans. For many, this might mean leaving behind studies, friends, and dreams of building a future in South Africa.

A Legal Process in Motion
Revoking a visa isn’t a simple decision—it involves careful steps. The SIU gathers evidence, like the fraudulent documents in this case, and presents it to the Department of Home Affairs or a court. Once approved, the visa holders are notified, and they may have a chance to appeal. If they lose, they’ll need to leave the country or face legal consequences.
This thorough approach ensures the process is fair but firm, balancing the rights of individuals with the need to uphold the law.

Fighting Corruption at the Borders
Mothibi’s announcement came during the launch of the Border Management and Immigration Anti-Corruption Forum in Pretoria. This new initiative brings together government officials, law enforcement, and other role-players to tackle corruption at South Africa’s ports of entry—like airports, harbours, and land borders. The forum is a big step towards stopping shady visa deals and ensuring that only legitimate travellers enter the country.
Corruption at these entry points has long been a thorn in South Africa’s side. Bribes, fake papers, and insider help have allowed some to bypass the rules, putting pressure on an already strained immigration system.

The Bigger Picture: South Africa’s Immigration Challenges
South Africa attracts thousands of students and workers every year, drawn by its universities, job opportunities, and vibrant culture. But managing this influx comes with hurdles. The immigration system has battled backlogs, understaffing, and corruption for years. Fraudulent visas add another layer of complexity, threatening national security and the integrity of legal migration.
The SIU’s actions are part of a wider push to fix these problems. By targeting fraudulent study visas, the unit is sending a clear message: South Africa won’t tolerate cheats who exploit the system.

What’s Next for the Investigation?
The SIU isn’t done yet. Mothibi promised more updates as the probe unfolds, hinting that other visa types—like work or business permits—might also face scrutiny. The investigation could uncover deeper networks of corruption, possibly involving officials or agents who help produce fake documents for a fee.
For now, the focus is on these 110 study visas, but the ripple effects could lead to tougher rules, better checks, and stronger partnerships with schools to verify applicants. The public, universities, and immigration experts will be watching closely to see how this plays out.

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Case of two asylum seekers from Burundi sets new precedent for ‘sur place’ refugees
In a landmark judgment, the Supreme Court of Appeal (SCA) found in favour of two asylum seekers from Burundi whose bids were refused by the department of home affairs.

The SCA set a new precedent for SA’s refugee law, particularly its international obligations when sending people back to countries where the situation has turned violent while they were out of the country.
The Burundi nationals sought asylum while in Cape Town. The department of home affairs refused their asylum bids and in 2014 ordered them to leave SA. However, they did not.

Burundi’s political landscape changed in 2015. According to Amnesty International: “Since April 2015, critics and opponents of President Pierre Nkurunziza have been targeted in a brutal and systematic repression by the Burundian authorities.”
The asylum seekers told the department they feared persecution if they returned to Burundi.
Due to the change in circumstance, the asylum seekers claimed they were now “sur place refugees”. According to the UN, “a person who was not a refugee when he left his country but who becomes a refugee at a later date is called a refugee ‘sur place’.”

New asylum bid
They made a new asylum bid based on the sur place claim. The department refused to hear them as the law doesn’t allow for refugees to make a second application while in SA if the first was rejected.
The asylum seekers challenged the department in the Cape Town high court. Though the high court agreed with home affairs, it noted that SA had an international obligation not to send foreigners back to countries where they face harm, known as “non-refoulement”. However, this had been considered by officials when they rejected the asylum seekers’ application in 2014.

The asylum seekers appealed to the SCA, noting that though they may have faced no persecution when they first arrived, Burundi’s landscape had changed. They reiterated they were sur place refugees from 2015 and should not be sent back.
The SCA agreed, overturning the high court’s findings.
“It was not the high court’s place to determine whether the appellants’ sur place applications were genuine,” wrote SCA judge Tati Makgoka for a unanimous court. “That duty fell on the department.”

Makgoka noted “SA has not developed jurisprudence on sur place refugee claims”, and, using foreign law, explained how it must be considered in future.
The judgment sets a precedent for all courts and the department of home affairs when considering this new claim. For example, Makgoka said if the change in a refugee’s home country would affect all citizens, not the refugee specifically, a sur place refugee claim usually fails.
He ordered home affairs to hear their sur place claim.

Nabeelah Mia from Lawyers for Human Rights (LHR) said that due to the judgment “when decisionmakers determine an asylum claim, they should also consider the current situation in a country”.
According to LHR, 96% of asylum claims are rejected by officials, and the judgment will hopefully help change that.

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Introduction to Legal Principles
The South African legal system, particularly the South African Citizenship Act of 1995, outlines how citizenship is acquired. A key principle is that a child born in South Africa can become a citizen if one of their parents is a South African citizen at the time of birth. However, changes to the law have created complexities for children born to non-citizen parents. This article explores a recent court case involving a child born to refugee parents, highlighting the legal challenges and the court’s decision to ensure the child’s right to citizenship.

Legal Framework for Citizenship
• Citizenship by Birth: Before 2013, a child born in South Africa could become a citizen if one of their parents had permanent residence. After 2013, citizenship is granted if one parent is a South African citizen at the time of birth.
• Statelessness: The South African Citizenship Act aims to prevent statelessness by providing citizenship to children born in the country who do not have another nationality.
• Refugee Status: Refugees in South Africa face unique challenges in obtaining citizenship for their children, as they cannot easily access services from their country of origin without risking their refugee status.
Case Law: Facts and Court Decision

Background
The case involves a family of refugees from Rwanda living in South Africa. The parents, who are legally recognized refugees, have two daughters. The eldest daughter was born before the 2013 changes to the Citizenship Act and automatically became a South African citizen. However, the youngest daughter, born in 2015, did not qualify for automatic citizenship due to the new requirements.

The Challenge
• Statelessness: The youngest child was stateless because she did not qualify for South African citizenship and could not easily obtain Rwandan citizenship due to her parents’ refugee status.
• Application for Citizenship: The parents applied for South African citizenship for their youngest child, but the application was refused by the Department of Home Affairs, citing that granting citizenship would be contrary to the Citizenship Act.

Court Decision
The High Court of South Africa reviewed the decision and ruled in favour of the applicants. The court declared the Department’s refusal unlawful and ordered that the child be recognized as a South African citizen by birth under Section 2(2) of the Citizenship Act. This section ensures that a child born in South Africa who does not have the citizenship of any other country can become a South African citizen if their birth is registered in accordance with South African law.

Key Points of the Decision
• Prevention of Statelessness: The court emphasized the importance of preventing statelessness, especially for children, as it is constitutionally directed that every child should have a nationality from birth.
• Best Interests of the Child: The court prioritized the best interests of the child, noting that procedural technicalities should not override justice.
• Refugee Status Considerations: The court acknowledged the difficulties faced by refugees in accessing services from their country of origin, which would imperil their status and that of their family.

Conclusion
The court’s decision highlights the importance of ensuring that children have a nationality from birth, as mandated by constitutional principles. It also underscores the challenges faced by refugee families in navigating citizenship laws. The ruling provides a significant precedent for similar cases, emphasizing the need to balance legal technicalities with the best interests of the child and the prevention of statelessness.

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The high court in Pretoria, in addressing the issue of a child who had been left stateless, ordered Home Affairs to within three months register her as a citizen of this country
Amendments to the Citizenship Act came under the judicial spotlight after one child born from parents who are legally in the country as refugees after they had fled Rwanda is a citizen of South Africa, while her younger sister, born after amendments, is left stateless.
The youngest child, born in 2015 after a change in the law, does not automatically qualify for citizenship as her elder sister did. In terms of the new law, she can only apply for citizenship here - with no guarantees that she will receive it - after she has turned 18.

Her parents, who have been living in South Africa now for several years, turned to the Gauteng High Court, Pretoria out of desperation as their youngest child has now been left stateless. Home Affairs, which has followed the letter of the law, refused to grant her citizenship.
Judge Anthony Millar, in the opening of his judgment in which he ruled in favour of the parents, remarked that “it is a foundational pillar of our law that every child has the right to a name and nationality from birth".

Prior to January 1, 2013, when the applicant's eldest child was born; in terms of the Citizenship Act, a person born here was a South African citizen by birth if one of the parents were legally here.
Since both parents are refugees here and not citizens, the youngest child finds herself in a situation where she is without South African citizenship conferred on her automatically and to obtain citizenship upon application, would have to wait until she was a major (18) to do so.
Judge Millar questioned that while the status of the parents is that of refugees, and of their eldest child is that of a citizen of the Republic, what then is to become of the youngest child since she does not automatically qualify for South African citizenship, nor that of Rwanda.

Home affairs suggested that she applied for Rwandan citizenship or simply waited until she turned 18 to apply for South African citizenship.
But the judge pointed out that as refugees from Rwanda, the parents can hardly ask that country to grant their daughter citizenship. The choice is an impossible one for the parents, the judge remarked.

He added that because of the change to the Citizenship Act, she is not a citizen in the country of her birth. Only after she turns 18 will she have to apply to be recognised as a refugee in her own name and only thereafter, if her application is granted, will she be able to apply for citizenship of South Africa by way of naturalisation.
“This proposed course of action will only give her a right to apply, and not a vested right as guaranteed by the Constitution. This only serves to perpetuate her current predicament, and she would still have no nationality and remain stateless.”
Judge Millar said in cases such as the present one, “it must not be forgotten that procedure is, but a handmaiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities".

“It is constitutionally directed that a child is to have a nationality from birth, and it follows axiomatically that it is in the best interests of the child that this is so. In the circumstances, the child is to be declared a citizen of the Republic of South Africa,” Judge Millar said.
He ordered Home Affairs to, within three months, register the child accordingly.

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Yes, based on the Immigration Act of 2002, the Refugees Act of 1998, and key legal precedents, an asylum seeker can transition to a mainstream visa (such as a spouse visa) and may, in some cases, hold both statuses. This position was confirmed in the Constitutional Court case of Ahmed v Minister of Home Affairs and further supported by other court decisions.

1. Legal Framework: Immigration Act & Refugees Act
To fully understand why this is possible, we need to examine the key legal provisions in both acts:
🔹 The Refugees Act, 1998 (As Amended)
• The Refugees Act does not prohibit an asylum seeker from applying for a visa under the Immigration Act.
• Section 27 of the Act grants recognized refugees permanent residence after five years, but it does not restrict asylum seekers from seeking other legal pathways.
• Section 22 allows asylum seekers to remain in the country legally while their applications are processed, but it does not prohibit them from applying for other visas.
🔹 The Immigration Act, 2002
• The Immigration Act governs mainstream visas, such as spouse, work, and study visas.
• The Act does not contain any express prohibition preventing an asylum seeker from applying for a mainstream visa.
Prior to legal challenges, Home Affairs routinely rejected applications for mainstream visas from asylum seekers, arguing that asylum seekers were only allowed to remain in South Africa under refugee law. However, the courts have overturned this interpretation.

2.Key Case Law: Ahmed v Minister of Home Affairs
Case Citation: Ahmed v Minister of Home Affairs [2018] ZACC 39
🔹 Facts of the Case
• Ahmed was an asylum seeker in South Africa.
• He attempted to apply for a visa under the Immigration Act but was denied by the Department of Home Affairs (DHA), which argued that asylum seekers must remain within the refugee system and cannot apply for mainstream visas.
• Ahmed challenged this decision in the Constitutional Court.
🔹 The Constitutional Court’s Ruling
The Constitutional Court ruled in Ahmed’s favor, confirming that:
✅ Asylum seekers have the right to apply for mainstream visas under the Immigration Act.
✅ DHA’s policy of rejecting asylum seekers’ applications for mainstream visas was unconstitutional.
✅ There is no legal basis to prohibit an asylum seeker from obtaining a spouse visa, work visa, or study visa.
🔹 Reasoning Behind the Judgment
• The court emphasized that the Immigration Act and the Refugees Act must be read together in a manner that aligns with the constitutional right to dignity and fair administrative justice.
• Nothing in the law prevents asylum seekers from applying for mainstream visas.
• The ruling stopped Home Affairs from blocking asylum seekers from transitioning to other legal statuses.

3 .Additional Supporting Case Law
🔹 Ruta v Minister of Home Affairs [2019] ZACC 36
• The Constitutional Court reaffirmed the right of asylum seekers to seek alternative legal pathways.
• It confirmed that a refugee or asylum seeker should not be unfairly locked into the asylum system if they have a valid reason to transition to a mainstream visa.
🔹 Tewolde v Minister of Home Affairs [2019]
• The court confirmed that asylum seekers can apply for a spouse or work visa if they meet the requirements of the Immigration Act.
• This ruling emphasized that fair administrative action is required when processing applications.

4 .Can an Asylum Seeker Hold Both Asylum Status and a Mainstream Visa?
Yes, based on legal precedents, it is possible in certain situations.
🔹 Key Considerations
1. An asylum seeker can apply for a mainstream visa while still holding an asylum permit.

2. Once a mainstream visa is granted, the asylum permit may no longer be necessary.

3. If the asylum seeker still fears persecution, they can maintain their asylum status while holding a mainstream visa.

4. However, if they voluntarily renounce their asylum claim, they will fall under the Immigration Act rather than the Refugees Act.
Ahmed v Minister of Home Affairs and Ruta v Minister of Home Affairs support the principle that the two legal frameworks are not mutually exclusive, and asylum seekers should be allowed to transition legally.

5 .Why Home Affairs Cannot Block This Process
Despite these legal rulings, Home Affairs has historically attempted to block asylum seekers from obtaining mainstream visas. However, the courts have ruled against this for the following reasons:
🔹 Constitutional Principles
• Right to Dignity & Family Life: Preventing an asylum seeker from applying for a spouse visa violates the right to family unity.
• Fair Administrative Justice: Blanket refusals by Home Affairs violate Section 33 of the Constitution, which guarantees fair administrative action.
• Freedom of Movement & Choice: A person should not be forced to remain in the asylum system if they qualify for another visa category.
🔹 Legal Clarity from the Courts
• The courts have repeatedly ruled that Home Affairs cannot enforce a policy that is not supported by legislation.
• If an asylum seeker meets the requirements of a mainstream visa (e.g., a spouse visa), Home Affairs must process the application fairly.

6 .Conclusion: An Asylum Seeker Can Change to a Mainstream Visa
Based on the Immigration Act, the Refugees Act, and legal precedents, it is clearly possible for an asylum seeker to:
✅ Apply for a mainstream visa such as a spouse, work, or study visa.
✅ Transition out of the asylum system if they qualify for another visa.
✅ Hold both asylum and mainstream status in some cases (e.g., if their asylum claim is still valid).
The Ahmed case and similar rulings confirm that Home Affairs cannot block these applications. Asylum seekers are entitled to fair and lawful immigration pathways like any other foreign national in South Africa.

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