This particular mess was triggered by Aaron Motsoaledi’s failure to amend an unconstitutional law that allowed for the detention of irregular migrants for 120 days. 

Legal grievances against the South African department of home affairs, including contempt of court cases, are depressingly common. Too frequently, the minister has to apologise to a court or ask for more time on behalf of the department.

Most of the court cases involve the operations of the department regarding visas, and permits for foreign visitors, immigrants and prospective refugees.

Just a few months ago, Home Affairs Minister Aaron Motsoaledi said, in legal papers: 

I would like to take this opportunity to extend my sincere apology to the Chief Justice, all judges of the high court and Constitutional Court, the president of South Africa, minister of finance, Lawyers for Human Rights and its legal representatives and the people of South Africa for the mess created by officials of the department of home affairs.

UNCONSTITUTIONAL LAW

This particular mess was triggered by the minister’s failure to amend an unconstitutional law that allowed for the detention of irregular migrants for 120 days.

The rotten state of the department is widely known. Two reports released in the last three years, commissioned by the minister and the presidency, and led by senior and seasoned individuals, set out the problems in detail. 

One, released in 2022, chronicled a backlog of visa, permit and status applications; evidence of fraudulent applications being first rejected, then accepted; and the illegal use of the system. The other found multiple failures in the provision of visas to senior business managers and experts.

The issue of migration policy and its implementation has never been more pressing for South Africa. Immigration has grown relatively rapidly in the past 20 years. The proportion of migrants to local people more than doubled from a relatively low level of 2.1% in 2000 to a moderate level of 4.8% in 2020, according to a study drawing on UN data.

The global average immigrant population is about 3.5%, but in countries such as the US (nearly 16% in 2019), Australia and New Zealand, it is much higher. Ivory Coast is the only country on the continent with a considerably higher percentage of immigrants than in South Africa.

MIGRATION POLICY

Migration policy is likely to be a critical issue in South Africa’s forthcoming elections. A leading journalist has argued that 2024 will be an “immigration election”. Populist parties are expected to mobilise around people’s fears, while the government will continue to use immigration as an excuse for poor service delivery and joblessness.

The reality is that the impact of migrants on the circumstances of poor South Africans is marginal, and far less important than the very poor performance of the economy and many governmental institutions. 

In a paper just published, I examine the recent history of immigration policy in South Africa.

I argue that the challenges would best be addressed by improvement in the operations of the department of home affairs. This should be accompanied by some modernisation of migration law to encourage the use of regular migration channels and discourage irregularity.

THE PROBLEMS

The first of the two investigations initiated by the minister was headed by Cassius Lubisi, former secretary of the Cabinet. The second was headed by anti-apartheid struggle stalwart Mavuso Msimang.

Their main findings were as follows.

Fraudulent documentation was used in 36 647 applications for visas, permits or status over a 16-year period. Of these, 880 were approved and 288 were pending. Of the fraudulent applications, 4 160 were first rejected, and then accepted after reconsideration. 

Systems that had been replaced were still being used illegally from time to time. The outcomes of such activities were suspicious. In some cases, applications were processed in zero days. The investigation found visa expiry dates issued beyond the legal limit.

The department’s databases for naturalisation and population registration didn’t correlate with each other.

The list identifying undesirable immigrants was “fatally flawed due to incomplete and missing crucial data”.

In some cases, files had been inserted illegally into the information system. This process would require “a highly skilled IT user with administrator rights to execute”.

There were multiple cases of “forum-shopping” by applicants. This is when an applicant applies for a range of unrelated permits in the hope that one of them will get through.

The department did not have systems that could identify multiple applications by the same person.

POSSIBLE FIXES

The department of home affairs recently issued a draft white paper which it said was aimed at addressing the problems that had been identified.

It proposed severely curtailing the rights of prospective refugees, restricting paths to citizenship, and strengthening the Border Management Authority and supportive institutions.

But, based on my findings, it is clear that these changes won’t solve the problems. Experts show that tighter restrictions lead to greater illegality, not less migration. 

The most disappointing element of the draft white paper is that it makes no reference to recommendations made in the two reports on the problems at the department.

Recommendations of the reports included:

• Major investment in and reorganisation of information systems;

• The integration of the various population databases;

• Further forensic investigations to root out corruption; and

• Hiring and training staff with skills and integrity.

The draft white paper also does not mention the need to modernise the colonial-style bilateral labour agreements that South Africa maintains with five regional neighbours Mozambique, Lesotho, Eswatini, Malawi and Botswana. These countries, and Zimbabwe, are the greatest source of regular and irregular migration.

These agreements are no longer fit for purpose. Firstly, they impose tight restrictions on the rights of contracted migrants from other countries. Secondly, they are based on patterns of migrant labour developed during the colonial period to support farming and mining. Thirdly, they’re based on an unequal relationship between countries of the southern African region.

Modern bilateral labour agreements have been developed. An example is the Canadian system. It provides for long-term arrangements with full labour and social rights for the duration of the multiyear contract, but no right to permanent residence for the workers or their families.

Modern Canadian-style migrant labour agreements would encourage more migrants to choose regular migration routes and fewer would try to evade or abuse the law.

The draft white paper gives the impression that the challenge of migration policy can be solved with tighter laws on refugees and citizenship. In fact, the fundamental problem is the corruption and inefficiency in the permits and visa section of the department, which the white paper hardly mentions. 

The unfortunate conclusion that can be drawn from a reading of the draft white paper is that it was designed primarily to give the ruling party a narrative for the upcoming election, rather than to reform the migration governance regime.

The rand may have lost value against foreign currencies, but this makes South Africa an attractive tourist destination 

It`s probably not the prospect of cheap cappuccino in South Africa that attracts foreign tourists here, but it`s obviously welcome if your foreign currency gets you further.

Mary Curtis, a strategist, and Andrea Masia, a senior economist, both associated with RMB Morgan Stanley. said:

Consumers can easily drink three cappuccinos in South Africa for the price of one in America. You can also spend four nights in a Cape Town hotel for the same price as one night in London

`In the bigger picture, the low relative prices of goods and services in South Africa are just another example of the value in South African assets.`

The affordability of goods and services for foreigners gives South Africa an unexpected advantage over peer countries, they write in a note to clients.

According to Curtis and Masia, the weakening of the rand against the major currencies, together with moderate inflation in South Africa in comparison with other countries, means that the relative prices of local goods and services are cheaper than elsewhere. These price differences support foreign tourism.

In the past year, the rand has weakened by around 9% against the US dollar and the euro, and by almost 12% against the British pound

Statistics South Africa`s (Stats SA) latest figures show that almost 98% of tourists who visited South Africa in December were here for holiday. This definition refers to holidaymakers and tourists who come for shopping, other personal reasons and visiting friends and family.

Business travellers made up 1.9% of the total, students 0.2% and people coming to South Africa for medical treatment only 0.1%.

In the fourth quarter of 2023, 18% more overseas tourists visited South Africa than in the fourth quarter of 2022

SSA says the tourism industry is recovering after Covid-19.

Between January and November 2023, visitors from overseas rose by 47% on an annual basis. Most of these visitors were from Europe (especially Britain, Germany, the Netherlands and France). Almost 40% more Americans visited South Africa than in the first eleven months of 2022, and 72% more tourists from Asia.

In December 2023, 3.5 million visitors passed through the country`s border posts (entry and exit), compared to 2.6 million in November 2023. This is also higher than the 2.9 million in December 2022.

Lara Hodes, an economist from Investec, says in a note that the local tourism industry is also doing better.

According to Stats SA`s figures, the income from local tourist accommodation in November was 15% higher on an annual basis (without the effects of inflation) after it was also 11% higher in October than the previous October

This November income of R2.7 billion is slightly less than in November 2018 and 2019, before the Covid-19 pandemic.

The Gauteng High Court handed down a landmark judgement on Tuesday, 16 January, declaring the Department of Home Affairs’ practice of blocking IDs unjust and inconsistent with the South African constitution. (Photo: Deaan Viviers / Gallo Images / Foto24) 

The Department of Home Affairs is no longer allowed to block South African IDs arbitrarily, cutting citizens and residents off from essential services, following a landmark judgment from the Gauteng high court. Lawyers for Human Rights has welcome the ruling. 

In a landmark judgment that has been years in the making, the Gauteng high court in Pretoria has declared that the Department of Home Affairs’ (DHA) practice of blocking South African IDs is an unjust and irregular administrative action that is inconsistent with the South African Constitution.

This comes after Minister Aaron Motsoaledi and Directer-General Livhuwani Makhode were taken to task by affected permanent resident and Civil Society organisations Lawyers For Human Rights, Legal Wise South Africa and the Children’s Institute, after the department went on a widespread campaign to block IDs it deemed suspicious and fraudulent. 

The application was initially brought forward by Eswatini citizen Phindile Mazibuko, who has lived in South Africa since 1998 but had her ID blocked by Home Affairs and was under threat of having her permanent residency revoked. Lawyers for Human Rights (LHR) and Legal Wise South Africa applied to be joined as an applicant in the matter as a matter of public interest and to have their client’s IDs unblocked, while the Children’s Institute was admitted as a friend of the court.

The applicants argued that the practice of blocking IDs was unconstitutional because it left the affected parties in a state of statelessness. Perhaps perfectly summed up in LHR’s founding affidavit, the organisation argued that the blocking of IDs effectively prevents those affected from engaging with the world.

The civil society organisation argued, “They become ghosts in the system they cannot obtain passports and travel, they cannot access education and healthcare, they cannot open or access bank accounts.”

The consequences of the practice extend far beyond the affected adults, hindering the quality of life of children whose parents had their IDs blocked.

DHA ID blocking campaign

The issue dates back to May 2012 when DHA went on a drive to address the issue of duplicate IDs on the National Population Register. What started out as 29,000 identity documents having markers placed against them quickly escalated to over 1 million by 2020.

At the time when the application was heard, DHA had unblocked 1.8 million IDs. However, over 700,000 remained blocked.

The department framed the practice as an administrative tool that was necessary to maintain the accuracy and integrity of the National Population Register and combat suspected fraud and manipulation.

However, Lawyers for Human Rights condemned the practice, claiming that ID blocking had become increasingly arbitrary, with criteria that seemed subjective and discriminatory. DHA’s reasons for blocking identity documents included the shape of inoculation marks, records of frequent cross-border travel, alleged deportation records, inability to speak a specific local language, bearing a foreign-sounding name or having a parent or spouse of foreign decent.

Another point of contention was that the DHA did not follow fair administrative processes before blocking IDs. Many of the IDs had markers placed against them which resulted in the documents being blocked without prior notice to the affected individuals depriving them of the opportunity to plead their case and provide information before being blocked by the DHA. 

Blocking IDs declared unconstitutional

In passing down the judgement, High Court Judge Elmarie van der Schyff said that the Director General had a responsibility to protect the integrity of the national population register by “placing a marker” against any suspicious ID. However, Judge van der Schyff added that doing so without following just administrative procedure was mischief.

Judge Van der Schyff said that a mere suspicion that an ID document was fraudulent did not justify placing a marker on it and blocking an ID unless it is authorised through a court order, adding that the DHA jumped the gun.

In an answering affidavit, the DHA conceded that the IDs were blocked without a fair and just administrative process, admitting that it was inconsistent with the Constitution. It informed the court that it had developed a procedurally fair and transparent system that has since been implemented. However, the system still entails the placing of markers or blocking of IDs.

DHA has been ordered to determine whether unblocking the ID documents currently blocked will constitute a security risk and determine the status of Lawyers for Human Rights and Legal Wise clients within 90 days. The declaration has been suspended for 12 months, giving the DHA time to comply with the order. 

‘A first step’ says Lawyers for Human Rights

Touching on the Constitutional Court’s emphases that the systematic act of stripping millions of black South Africans of their citizenship was one of the most pernicious policies of the apartheid regime, which left many as foreigners in the land of [their] birth, Lawyers for Human Rights welcomed the ruling.

Speaking to Daily Maverick, LHR’s Legal Consultant for Statelessness, Palesa Maloisane, said: “LHR is happy that the court has agreed to order the DHA to ensure a just and fair process that is in line with the Constitution and the Promotion of Administrative Justice Act, particularly because ID blocking can result in statelessness as it effectively strips affected individuals of their citizenship and dignity.”

Maloisane added that the organisation hoped that the judgment would be seriously considered by the department and inform the swift resolution to LHR’s client’s cases, particularly when children are involved.

“The case is a great success and first step in enabling all those affected to begin getting their lives and dignity as citizens back. Many clients have waited patiently for a resolution and will hopefully have the opportunity to access services that are crucial to citizenship and part of their daily lives,” Maloisane said.

The ‘deemed abandonment’ provisions after visa nonrenewals are unconstitutional, ruling finds 

In a unanimous decision, the Constitutional Court has struck down provisions in the Refugees Act that asylum seekers who have not renewed their visas within a month of expiry are considered to have abandoned their applications.

Acting judge Ashton Schippers, writing for the court, said the provisions and a linked regulation violate several constitutional rights in that the “deemed abandonment” provisions caused asylum seekers to be cut off from essential services such as access to banking, education and healthcare.

It also exposes asylum seekers and their children to the constant risk of arrest, detention and deportation. “All this, simply because a visa has not been renewed,” said Schippers.

The matter came before the apex court in what became unopposed confirmation proceedings of a Western Cape High Court ruling earlier in 2023 that the relevant provisions in the act were unconstitutional.

The application was launched by the Scalabrini Centre of Cape Town, supported by the Consortium for Refugees and Migrants SA (Cormsa), admitted as amicus curiae.

The minister and director-general of home affairs opposed the application in the high court, claiming the administration of visas placed a huge burden on the department’s officials because many applicants are not genuine asylum seekers. The provisions in the act, it was argued, were implemented to reduce the backlog of inactive cases and ensure that asylum seekers pursue their applications to completion.

In the Constitutional Court, however, they abandoned their defence, conceding that SA is obliged to receive refugees in accordance with international law and that the principle of nonrefoulement (the practice of not forcing refugees or asylum seekers to return to a country in which they are liable to be subjected to persecution) is enshrined in the act.

Especially vulnerable

Despite this concession, the court still needed to determine the matter. Schippers said refugees are an “especially vulnerable group” and their plight calls for compassion.

He said the provisions in question disregard the protection of asylum seekers from refoulement, because they could be expelled or returned to the countries from which they fled without a proper inquiry, simply because they had not renewed their visas.

“As stated in the applicant’s submissions in this court, in those countries they may face torture, imprisonment, sexual violation and other forms of persecution, even death. And this, without any consideration of the merits of their claim for asylum,” Schippers said.

The provisions impose a double penalty: it not only excludes determination of the merits, but prohibits any reapplication for asylum, the judge said.

Cormsa had presented evidence of 394 asylum seekers whose applications had been deemed abandoned and had been treated as illegal foreigners. Children, Schippers said, are particularly at risk “because of bureaucratic circumstances beyond their control”.

There had been evidence about one child who had been unable to attend school for the 2020 academic year, and another had not been able to register for matric.

Claim merits

“These subsections are irrational and arbitrary. They serve no legitimate government purpose.

“The merits of the claims for asylum are never considered,” Schippers said. The minister and the director-general “wrongly assume” most asylum seekers have no valid claims to asylum.

“This assumption violates the core principle of refugee law that asylum seekers must be treated as presumptive refugees until the merits of their claim have been finally determined through a proper process.

“The evidence shows that the nonrenewal of visas  often the consequence of long queues, the financial burden of getting to reception offices and having to take time off work  has not caused the backlog of asylum applications, nor imposed a significant burden on the department,” Schippers said.

The apex court confirmed the high court’s declaration of unconstitutionality, backdated to January 1 2020, when the provisions came into operation.

Beyond addressing the backlog, home affairs needs to engage more with stakeholders 

As we step into 2024 it is necessary to cast a retrospective eye on the intricate tapestry of SA immigration and citizenship law that has been woven over the past few years. The seismic waves of the Covid-19 pandemic have not only disrupted lives and businesses but also intensified challenges within our immigration system, resulting in formidable backlogs.

In a year that tested our resilience we found ourselves at the forefront, spearheading nearly 90 high court cases, including four pivotal delay cases that encapsulated the frustration of about 800 applicants waiting on waivers or visas. Despite our victory in the Supreme Court of Appeal, where the court emphasised the minister’s ultimate responsibility for the department of home affairs’ actions and criticised obstructive and dilatory stances, the delays persisted. 

These legal battles, spanning family ties, skills, business ventures or financial contributions to SA, underscore the pressing need for streamlined immigration processes. The court’s condemnation of the department’s unconscionable and disgraceful approach further highlights the urgency of reform within home affairs.

Amid these trials a glimmer of hope emerged. The home affairs parliamentary portfolio committee demonstrated commendable diligence in holding the minister to account for the backlog. Its proactive stance, devising solutions and aiding the public with applications, is a positive stride forward. In addition, the extension of the Zimbabwe exemption permit and Lesotho special permit offers a lifeline to nationals from these countries, providing sustained stability for those who call SA home.

A landmark Constitutional Court judgment marked a paradigm shift, allowing foreign spouses of South Africans with children in the country to transition from visitor visas to other visas. This ruling also extends the privilege to foreign parents, enabling them to work on a relative visa. It is a pivotal development that acknowledges and bolsters family units within immigration matters.

However, amid these positive developments a less auspicious event demands attention  the recently published white paper on migration. It erroneously attributes SA’s migration issues to bad laws rather than flawed implementation, particularly misguided international law. This misdiagnosis forms the crux of the paper’s shortcomings.

The misidentification of the root causes of the migration crisis in the white paper is concerning. It argues that the issues arise from flawed laws, sidestepping the department’s responsibility and incorrectly assuming foreigners are a net negative. The core mistake lies in assuming SA’s refugee laws primarily result from international law, overlooking their direct derivation from the SA constitution. Even if SA withdraws from the relevant treaties, the constitutional obligations will persist.

Then, less than a week ago, we encountered a publication headlined “Leaked memos expose SA’s visa chaos”, which shed light on the daunting challenges confronting the department. The leaked memo, with its stark assessment and warnings of security risks, court-ordered queue jumps and hindrances to skilled overseas applicants, adds an additional layer of concern. While the accuracy of the figure of a backlog of 95,000 visa applications remains uncertain, the undeniable substantial backlog demands immediate attention. 

The leaked internal document, dated November 2023, reveals the dire situation within the department. It emphasises the escalating litigation and legal costs due to the department’s struggle to promptly adjudicate permits, underscoring the prevalence of class action cases and mandamus applications that put pressure on all involved parties. Criticising rushed adjudication processes, the memo references a delay case initiated by DSD Attorneys (in collaboration with Visa One) that, following an appeal, emerged victorious in the Supreme Court of Appeal in 2017.

The leaked document rightly highlights persistent issues since the judgment, underscoring the strain on the department. However, it suggests three misguided points: questioning applicants’ locus standi (resolved in 2017), implying lawyers push litigation for queue-jumping (not our approach), and advocating departmental opposition to class actions (questionable).

The memo also claims that individuals without financial means can’t litigate, deeming it unfair. Contrary to this, we actively engage in pro bono, reduced fee or capped fee matters, assisting those with limited resources in pursuing their legal outcomes. Frustration arises not from the need for immediate action but from the lack of any response. The focus should shift to a constructive response, acknowledging the impact on disrupted lives. It’s time for the department to take responsibility, address internal challenges and avoid blame-shifting, guiding its actions accordingly.

Recognising the nuanced dynamics within this challenging landscape is vital. The memo portrays foreigners as seemingly “jumping the queue,” contributing to the backlog. It’s essential to emphasise that individuals enforcing their rights through legal action aren’t merely “jumping the queue” but compelling the department to adhere to its own rules. 

While imposing stringent rules on foreigners, the department appears to struggle with compliance, leading to the backlog and numerous high court cases. This underscores the urgency to clear the backlog and reinstate the fulfilment of duties and laws. These dynamics mirror the expectations placed on foreigners, who often face perceived harshness and apparent relentlessness.

The surge in litigation is a manifestation of the desperation felt by applicants who, with little recourse, resort to legal avenues. Litigation is emotionally and financially draining, time-consuming and often yields noncompliance from the department. Yet the prevalence of legal actions highlights the gravity of the situation and the lengths people are forced to go to secure their rights.

In light of these challenges it is imperative to shift the focus from condemning those enforcing their rights to addressing the root cause  the department’s struggle to adhere to its own rules and comply with court orders. The excessive litigation should serve as a stark reminder of the urgent need for systemic reform within the department.

Looking ahead, it is our earnest hope that the department will take a decisive step in getting its ducks in a row. Beyond addressing the backlog, we advocate for a more collaborative approach, actively engaging with stakeholders and fostering open communication. Let 2024 mark a shift from blame to action, where the department works hand-in-hand with all involved parties, including legal practitioners, to streamline immigration processes.

Our vision extends beyond mere clearance of backlogs; we hope for a year of positive transformation marked by increased responsiveness, engagement and openness. It is essential for the department to shed defensiveness and embrace a collaborative spirit, understanding that immigration lawyers share the same objective  to ensure that deserving individuals can live lawfully in SA. This shared goal is not only for their benefit but also for the greater good of the SA people and its economy.

Let 2024 be a year of progress and inclusivity for all, where the department actively collaborates with stakeholders, responds to challenges with agility, and operates with transparency. The promise of positive change lies not only in clearing the backlog but in creating a more efficient, welcoming and just immigration system that aligns with the aspirations of the department and benefits the nation as a whole.

• De Saude Darbandi is director of DSD Immigration Attorneys