Massive visa backlog in South Africa

Businesstech | 12 December 2022

The Department of Home Affairs is sitting with a massive visa backlog of over 56,000 applications, which it says will only be cleared by the middle of 2024.

Responding to a written parliamentary Q&A this week, home affairs minister Aaron Motsoaledi said that his department still needs to process 56,543 visas.

He said that the turnaround times for visas differ depending on which visa is being processed. It usually takes 4 to 10 weeks to process critical skills visas, he said, while business and general work visas take 8 to 14 weeks.

“The department envisages to have cleared the current backlog by June 2024 for all categories of visas,” he said.

Visa applications and processing have become a veritable nightmare for businesses in South Africa looking to hire specialists and critical skills needed for operations.

Companies have run into frustrating hurdles with these visa types over the last few months as the department dithered with systems and shifted processes around. Businesses have described getting the necessary visas for foreign workers in the country as a nightmare.

Following an apparent collapse in the processing of critical skill and business visas in August, the department promised to fast-track the processing of critical skill and business visas in October – but progress has been slow.

At the time, Motsoaledi said his department and the Department of Trade, Industry and Competition had set up a dedicated team to deal with the growing backlog and to track and ensure the finalisation of business visas. However, as revealed this week, the backlog remains significant.

Quickly processing Critical Skills visas was a key target in Home Affairs’ Annual Performance Plan.

A new Critical Skills list was published in February 2022, with a major update in August, adding 39 positions related to the medical field.

The publishing of the critical skills list was an essential aspect of president Cyril Ramaphosa’s plan to draw much-needed professionals to South Africa.

Other visa developments promised by the president have also fallen flat.

Digital nomad visas

In his state of the nation address in February, president Cyril Ramaphosa said that the government was looking to adopt remote-working ‘digital nomad’ and start-up visas as part of a push to attract more skilled workers.

He also said that the country would introduce other visa reforms to make it easier for people to enter the country.

Since making the announcement, little has been done to execute these plans, however.

In a separate response this week, Motsoaledi reiterated that South Africa has made no provisions for a so-called ‘digital nomad’ visa. The minister said that current legislation does not make any room for such visas, and so there are simply no plans to introduce one.

“The current visa categories are legislated by the Immigration Act No. 13 of 2002. In its current form, the Immigration Act does not make provision for digital nomad eVisa. Therefore, there are no plans to implement a digital nomad e-visa,” he said.

He said that South Africa’s eVisa programme was established to make it easier for travellers to enter the country without having to visit an embassy or mission beforehand. There are also 135 countries who can enter South Africa without having to get a visa.

However, the three- and six-month forward outlook for these programmes shows no progress.

EVisas are currently available in 14 countries. Motsoaledi said that his department has not yet decided on the total number and the names of countries that will qualify for eVisas in the quarter.

Beyond the 135 countries that South Africa offers visa-free entry to, Motsoaledi gave no indication of this expanding over the next six months. Kenya was added to the visa-free entry list in November.

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Birth registration: How SA’s legislation harms foreign national children

The Saturday Star | 09 December 2022

Johannesburg - Birth registration is a fundamental human right as it triggers the ability to access other rights. South Africa’s regulatory framework is premised on the fact that one’s residence status determines whether a child’s birth can be registered or not.

The registration of children born to foreign nationals, who are not permanent residents or refugees, is subject to the provision of valid documentation.

Senior Associate in the Pro Bono and Human Rights practice at law firm Cliffe Dekker Hoffmeyr, Elgene Roos, said the consequences of not being documented can be far-reaching and result in a child not being able to access basic services that they are entitled to under the Constitution.

“The current legislative framework does not cater to children born to undocumented foreign nationals or even undocumented South African citizens who do not have IDs as a consequence of the apartheid regime. The child's birth will then go undocumented,” she said.

And while the law does not speak to a situation like this, however, practically the Department of Home Affairs (DHA) will most likely demand that the parents wait for permits to be issued and once they have the permits they can, at a Home Affairs office, register their child's birth. Should the permits be issued after 30 days from when the child was born, the parents will have to apply for late birth registration where a fee is payable. In an instance where one parent is documented, birth registration can still be problematic.

“This is a tricky question because the law and courts say one thing but DHA implements the law in different ways. I refer you to the Centre for Child Law versus Director General of Home Affairs case. This matter came before court where a South African father was unable to register the birth of his child because the mother was undocumented and did not have valid documentation as was required by the Regulations to the Births & Deaths Registration Act. The department refused to register the child's birth because the mother's documents were not in order,” Roos said.

When it comes to children, a mother automatically assumes parental responsibility. Even in terms of the Children's Act, the mother is automatically conferred with parental responsibility, whereas a father's parental responsibility only kicks in once he makes a positive contribution toward the child.

“DHA will be happy to register a child's birth when the mother is present and has valid documentation. However, they will not do the same where it is only the father who seeks to register their child's birth, more especially where the parents are not married,” she said.

Roos said the issue centred on the father's right to register their children and declaring certain sections and regulations of the Births and Deaths Registration Act as unconstitutional and invalid.

The Constitutional Court noted that there were competing and conflicting interpretations of certain provisions of the act, and noted that even where one provision allows an unmarried father to register their child's birth, another provision only allows a father to do so where the mother is present and gives her consent to do so. The Constitutional Court declared the provisions in question unconstitutional and gave DHA 24 months to remedy the defect. As it stands, unmarried fathers are allowed to register their children's birth without the mother present.

“This case was a huge success. However, DHA in recent months has created additional barriers for fathers who seek to register the birth of their children, and that is that they require DNA tests to be done before accepting an application. This is deemed as a barrier because of the high cost of a DNA test that not everyone can afford it, and the delay created by needing these tests performed,” she said.

International instruments like the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child expressly recognise the right of every child to be registered and to acquire a nationality. So does the Constitution.

The law, domestic and international, recognises the impact non-birth registration has on a child. The fact that birth registration in SA is contingent on the parents having valid documentation contravenes international law as birth registration is not seen from the viewpoint that it is actually the right of every child. Therefore, a parent's nationality and/or immigration status should not be relevant when it comes to having the child's birth registered.

“There is this huge misconception that if you are born in South Africa you are automatically a citizen. That’s wrong and it’s not the way our law works. If you are born to foreign nationals, you assume the same nationality as your parents,” Roos said.

Despite promises from DHA to comment, the department did not reply at the time of going to print.

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Kiwis push for pathways to citizenship in Australia

New Zealanders pushing for pathways to Australian citizenship will lobby Treasurer Jim Chalmers and Home Affairs Minister Clare O’Neil in Canberra this week, as more than 11,000 Kiwis remain stuck in a years-long visa processing backlog.

After Prime Minister Anthony Albanese and his New Zealand counterpart Jacinda Ardern pledged renewed co-operation between the two countries in June – including progress on citizenship and enhanced voting rights – campaigners say applicants for the 189 visa stream were left languishing by the former Morrison government.

NZ Prime Minister Jacinda Ardern with Australian Prime Minister Anthony Albanese in June. Nick Moir

Lobby group Oz Kiwi will hold talks at Parliament House, including meeting Immigration Minister Andrew Giles. They will push Labor to end the exclusion of some New Zealanders in Australia from the National Disability Insurance Scheme, despite them having to pay for disability care through the Medicare levy.

Current rules allow some New Zealanders who have lived in Australia for more than four years to become permanent residents. Special categories exist for individuals resident in Australia before February 2001, including access to the NDIS.

The federal government estimates about 670,000 New Zealand citizens live in Australia – close to 15 per cent of New Zealand’s population. About 70,000 Australians living across the Tasman.

Oz Kiwi chairwoman Joanne Cox praised Dr Chalmers for his commitment to advancing the interest of New Zealanders resident in Australia, as a review of benefits and opportunities for citizens of both countries continues.

It is due to report to both governments before Anzac Day in April.

“If there’s upwards of 650,000 Kiwis in Australia, maybe a third of them would be dual citizens,” she said. “Maybe half the remainder have a pathway to permanent residency. We estimate between 200,000 and 250,000 have no pathway.

“The NDIS is one of the biggest issues. New Zealanders pay the Medicare levy but are the only group in Australia who can’t access the services. Children who were receiving treatment through state-based programs lost access when it all became part of the NDIS.”

The 1973 Trans-Tasman Travel Arrangement allows citizens of the two countries to enter each other’s country to visit, live and work indefinitely.

New Zealand is the only country that has such an arrangement with Australia. There is no cap on arrivals, and health and character grounds are the only limitations on continued residency.

Ms Cox said Oz Kiwi was not pushing for New Zealanders living in Australia to get expanded voting rights, something flagged by Mr Albanese in July. Parliament’s joint standing committee on electoral matters is considering the proposal.

Constitutional experts and the Liberal Party have warned any such change would almost certainly face a High Court challenge.

“If we could get a fair and affordable pathway to citizenship for those who want it, we wouldn’t need to worry about voting,” Ms Cox said.

Former New Zealand prime minister Helen Clark told The Australian Financial Review voting rights for New Zealanders was question for the federal government.

“It’s a question for Australia. It has the sovereign right to decide who’s going to get the vote, if you’re going to give the right to New Zealanders who aren’t citizens, then isn’t everyone else who’s a permanent resident but not a citizen going to ask?

”It opens up a much bigger question: do you let permanent residents vote? You know, there was a time in New Zealand where voting laws were so lax that people who were overseas students could vote.

“It may be quite hard to argue that New Zealanders should be able to vote but not others who have resident status.”

Oz Kiwi members will also meet with the New Zealand High Commissioner, Dame Annette King while in Canberra.

“We’re doing this work, including pushing for the visa backlog to be quickly addressed, for the people we refer to as the ‘lost Kiwis’. They’re the ones who missed out,” Ms Cox said.

Zimbabweans head to court to stop SA banks and schools being ‘weaponised’ 

Moneyweb |  09  Dec 2022  

There are also reports that Operation Dudula is selling jobs held by Zimbabweans to South Africans. 

The latest court action opens up another front in a legal battle between Zimbabweans facing potential deportation next year and the Department of Home Affairs. Image: AdobeStock 

The Zimbabwe Exemption Permit Holders Association (Zepha) heads to court next week seeking an urgent interdict to stop banks and schools in South Africa from harassing Zimbabweans who are under threat of deportation once the Zimbabwe Exemption Permit (ZEP) system expires in 2023. 

Thousands of Zimbabweans living and working in SA under the ZEP system have been told by local SA banks to provide a valid visa or permit within seven days, failing which the matter will be reported to the Department of Home Affairs (DHA) in terms of Section 45 of the Immigration Act. 

Asked to comment on the request for ZEP holders to provide a valid visa or permit within seven days, FNB told Moneyweb in August that it was “monitoring developments regarding the status of Zimbabwean exemption permits and [the bank] communicates regularly to customers who may be affected”. 

“Our latest communication to customers who are ZEP holders aims to inform them about the most recent directive from the Department of Home Affairs and the options available to them.” 

“This is shocking … The banks are being weaponised against Zimbabweans in SA,” says Zepha legal representative Advocate Simba Chitando. 

“This is how it started with the Jews in 1930s Germany. Zimbabweans, who make a huge contribution to the SA economy, are being harassed and intimidated by banks, and now schools, several of which are refusing to enrol the children of ZEP holders,” claims Chitando. 

“There is a steady process of de-humanising Zimbabweans, stripping them of banking facilities and eventually forcing them out of the country.” 

Chitando’s comments follow reports that Zimbabweans working and paying tax in SA for more than a decade are being charged as foreigners at local hospitals. 

The latest court challenge opens up another front in a legal tussle that pits Zimbabweans living and working in SA against the DHA and Home Affairs Minister Aaron Motsoaledi. 

Three groups – Zepha, the Helen Suzman Foundation and the Zimbabwe Immigration Federation – are challenging the DHA decision to end the ZEP system, which was introduced more than a decade ago to legitimise the status of Zimbabweans fleeing political and economic turmoil at home. 

The ZEP scheme has been extended three times under different names over the last decade, but Motsoaledi announced last year that the scheme would not be renewed. 

Some 178 000 Zimbabweans have until June 2023 to apply for alternative visas or either leave the country voluntarily or be deported. 

Chitando says private companies are capitalising on the persecution of Zimbabweans by offering to assist them in applying for visas they are unlikely to get because they do not qualify in terms of the DHA’s Critical Skills list. 

Operation Dudula 

“There are also reports of Operation Dudula [‘force out’ in isiZulu] members approaching petrol stations and restaurants with demands that all employed Zimbabweans, including ZEP holders, be replaced with South African nationals within 10 days. This is to form the basis of a separate criminal complaint against Operation Dudula,” says Chitando. 

“These actions are obviously unlawful, and we shall seek relief from the courts. What is especially concerning is reports from Zimbabweans that Dudula are selling jobs held by Zimbabweans to South Africans for anywhere between R2 000 and R5 000,” he adds. 

“Should this be proven true, it suggests that Dudula, apart from being a self-evident terror organisation intimidating foreign nationals, is also an organised crime network profiting from calculated terror campaigns at places of employment. It speaks to a complete breakdown of the rule of law in South Africa,” Chitando says. 

“It has also come to my attention that there are companies offering desperate ZEP holders services to acquire visas they do not qualify for. 

“My advice to ZEP holders, and the public, is that the ZEP case dealing with the legality of the decision by the Minister of Home Affairs will be heard on 11 to 14 April 2023, and all ZEP holders are lawful residing in South Africa until 30 June 2023,” he adds. 

“It is unethical, and unlawful, for anyone to exploit ZEP holders, pending a lawful judgment by the court.” 

The Helen Suzman Foundation and Zepha have argued in court papers that the threat of deporting hundreds of thousands of ZEP holders, including family members, will create one of the worst humanitarian crises the region has seen in decades.

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Asylum seekers face challenges with DHA's online system - Lawyers for Human Rights 

News 24 | 09 Dec 2022

Asylum seekers are not getting the required documentation timeously, leaving them vulnerable to deportation. (Archive photo by Ashraf Hendricks, GroundUp) 

• Refugee and asylum seekers face challenges with the Department of Home Affairs' online system, Lawyers for Human Rights told the Portfolio Committee on Home Affairs.

• It means they don't get the required documentation timeously, leaving them vulnerable to deportation.

• Furthermore, there is a reluctance to process children, exposing them to "structural xenophobia".

Refugees and asylum seekers in South Africa have problems with the Department of Home Affairs' online system, leaving them vulnerable to deportation and their children to "structural xenophobia", Lawyers for Human Rights told Parliament.

Lindokuhle Mdabe of Lawyers for Human Rights told the Portfolio Committee on Home Affairs on Tuesday that they had noted several challenges since the department introduced its online system.

The system came online in April 2021, GroundUp reported previously.

Mdabe said newcomers into the country intending to apply for refugee status had to do so through the online system.

The first problem, according to Mdabe, was a lack of internet access, coupled with language barriers.

Even after they lodged their claims online, they might have to wait up to two months for an interview. This rendered them vulnerable to deportation, because they had no documentation or proof that they were legally in the country.

Often, there weren't enough translators available for interviews, and in some cases, asylum seekers had been told to arrange their own translators.

Mdabe said non-governmental organisations, like themselves, were inundated with requests to perform functions the department was supposed to do. In their case, they had to provide affidavits and ensure people complied with requirements.

Furthermore, Lawyers for Human Rights detected a reluctance from the department to process children. When parents were in the refugee or asylum seeker programme, and they wanted their children to join, the children would not be joined, despite their applications.

This leaves children – minors – without documents, which means they experienced what Mdabe called "structural xenophobia", meaning their socio-economic rights were limited because they did not have documentation.

Mdabe said they had written to schools and hospitals, informing them that these children had rights, but the practice of insisting on documents persisted. 

"We also understand this is not the fault of the refugees," he said.

He added that the department also failed to implement sections of the Immigration Act, court orders, and judgments.

ANC MP Asnath Molekwa said: "The children cannot suffer because of the parents' sins."

She said the committee should determine whether there was a programme with a timeframe to deal with those issues.

DA MP Adrian Roos said compliance with court orders and judgments seemed to be a big problem with the Department of Home Affairs. 

He said the committee needed to get a list of all the related court orders and judgments

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