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Throughout the second half of 2024 Leon Schreiber was one of the most observed and often praised GNU ministers. An expert on public sector reform, Schreiber could be the antidote to the institutional entropy from which the Department of Home Affairs (DHA) has suffered for decades, or “dry rot” as a renowned organisational theorist called it. Schreiber has not been shy in adopting a proactive approach to the implementation of change within the department he heads. Nevertheless, the reality he will have to contend with internally in 2025 and beyond is that DHA remains systematically wanting of the necessary competency to perform its duties. Just administrative action and maladministration Since the South African Constitution came into effect, followed by the Promotion of Administrative Justice Act (PAJA), the world of public administrators and their administrative actions has been redefined and reshaped within constitutionally and legislatively prescribed boundaries. Yet, to date, public administrators within the DHA continue to make themselves guilty of maladministration. Too often DHA officers and adjudicators are either ill-informed or indifferent to the legislative and judicial rules that prescribe their administrative conduct and decision-making. Maladministration and misgovernment can also be attributed to, among other issues, a disregard for the administrative law principles of just administrative action. Lawfulness and procedural and substantive fairness are the three cardinal pillars that sustain just administrative action. Not only absence of bias is vital from a procedural fairness standpoint; but paramount to the principle of lawfulness is that “any public administrator must be properly qualified for a specific administrative function in order to make decisions”. Bias, mistrust and inadequate reasons Bias extends to the culture of mistrust which permeates the decision-making of the DHA on visa and permit applications, which places an imbalanced burden of proof on applicants. Applicants are lambasted with rejection notices generically stating their failure to submit “adequate proof”, or are rejected on the basis of the DHA’s inability to verify documents or relationships. Most rejection notices fail to include adequate reasons as prescribed in terms of sections 5(1) and 5(2) of PAJA, frequently leading to unnecessary litigation as - even when placed on demand notice for adequate reasons - the DHA fails to comply with its mandate within the prescriptions of just administrative action. Spousal relationships are deemed to be for the majority “purported” rather than real good faith relationships - even in the presence of long-standing marriages and children. Applications made by lawful married spouses for visas and permits are being rejected on the grounds that the “applicant failed to submit sufficient proof of financial responsibility and cohabitation” - notwithstanding the fact that the regulations only require such documentation in support of applications made on the basis of life partnerships, not to spouses who have entered into civil marriages. The murky verification process Financial and other documents included in applications frequently fail to satisfy the DHA’s adjudicators, to such an extent that there appears to be a parallel murky verification process which has no basis in law or statute. The DHA’s own inability to process applications within a reasonable time, as also prescribed by PAJA, seems to have derailed and hijacked the adjudication process through a self-assumed and self-empowered verification process that is cryptic and prima facie unlawful. Lawyers have successfully challenged in court the lawfulness of the DHA’s verification process and of the recurring absence of adequate reasons. Furthermore, and as repeatedly placed on record with the DHA, due to global banking secrecy laws, attempts by the DHA and the Department of International Relations and Cooperation to verify banking account information directly with financial institutions overseas is unlikely to succeed. The so-called consent forms sent to applicants for these purposes by the DHA have very little value outside South Africa - particularly when these contradict local and international legislation overseas. Institutional incompetence In a compelling 2022 judgment the Western Cape High Court endeavoured to obtain clarifications from the DHA and the state attorneys on what exactly the verification process entailed, what its purpose was and on the grounds of which regulations it was conducted, only to conclude that “it was apparent to the court that there appeared to be some uncertainty and confusion as to exactly what such process would entail” and that “these assertions by the respondents clearly indicate the failure to properly understand and appreciate the confines of the statute and Regulations which they themselves are bound by”. This ruling led to a substitution order on the grounds that the court found there to be on part of the DHA “delay, bias and [institutional] incompetence”. Yet, review after review, court order after court order, the DHA persists with the same unlawful patterns, reminding one of the malaise to which Einstein referred as insanity - “doing the same thing over and over again and expecting different results”. At the end of 2024, in the DHA’s bid to clear the backlog, an extraordinary volume of rejection notices flooded the system, reflecting a concerning pattern of inadequate, ill-informed and erroneous decisions while the verification process continued unaffected. These decisions fall wide of the mark of the test of the ratione personae or competency imposed on the public administrators responsible for those decisions which, failing the test of PAJA, are unlawful. Empowering provisions Naturally, the volume of applications caught in the backlog would mean that there would be a corresponding rise in rejected applications - but a point of concern remains the poor quality of the decision-making involved. Moreover, as I had sadly anticipated, as VFS Global quickly reached its capacity limit and to accommodate the submission of appeals, in an unprecedented move, a directive signed by Director-General Livhuwani Makhode on 27 November 2024 was circulated, extending the legislatively prescribed deadline (of “10 working days from the date of receipt of the outcome”) to submit appeals until the end of March 2025. It is worth mentioning that this directive was initially leaked and circulated as Immigration Directive 12 of 2024, signed on 20 November 2024. In its original format, Directive 12 stated that the bottleneck was due to the backlog-addressing project: “As a result of the high number of visa and permit outcomes produced as part of the visa and permit backlog project, the appointment system at VFS Global for submission of appeals applications has been constrained”. Within a week, the DHA made a gaslit U-turn by silently replacing the directive and scapegoating VFS’s systems as responsible for this move, stating: “The Department has noted that the booking system, at VFS Global, has been experiencing problems… due to unavailability of dates.” More importantly, outside of a proclaimed state of disaster, we are, again, left questioning on the basis of what empowering provision any such directive can be effective in law. Abuse of power In our view, the risks of continuing to run an incompetent department and of outsourcing solutions outweigh by far the benefit of reporting the clearance of the backlog. As Professor W Erasmus once wrote: “The state administration has power, and concurrent with the possession of power, is the possibility to abuse this power… the violation of rights, through the abuse of power by the state administration is an actual reality.” |
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- Asylum seekers without valid visas face arrest and deportation, even if they have tried to apply for asylum. - Scalabrini argues this is unconstitutional and violates the principle of non-refoulement. - Home Affairs acknowledged that mistakes have been made but argues the law is sound. Amendments made to the Refugees Act in 2023 are unconstitutional because they allow asylum seekers to be deported before they are able to access the asylum system. This puts them in danger and at risk of persecution. This was the main argument made by the Scalabrini Centre of Cape Town, an immigration rights organisation, in the Western Cape High Court before a full bench on Thursday. The amendments, which Scalabrini wants the court to declare unconstitutional, allow for asylum seekers who have entered the country unlawfully and do not have a valid visa, to be denied full access to the asylum system after an initial “filtering” interview with an immigration officer. During this interview, meant to filter out non-credible asylum applications, the Immigration Officer must consider whether the asylum seeker is able to explain why they are in the country unlawfully. The applicant must show “good cause” for breaking the country’s immigration law. Scalabrini, represented by Lawyers for Human Rights, cited international and local case law to argue that no matter how late the person is in applying, or whether or not they have entered the country lawfully, they should be allowed to apply for asylum and should not be deported until their asylum applications are rejected on their full merits. Amendments deny access to the system upon the sole discretion of an Immigration Officer, who is not trained or experienced in assessing the merits of an asylum application, and as a consequence South Africa risks sending people back to danger in their countries of origin, Scalabrini argued. This violates international law including the principle of non-refoulement. Amnesty International, the Global Strategic Litigation Council for Refugee Rights, the International Detention Coalition and the Helen Suzman Foundation joined the application as amicus curiae (friends of the court). The organisations highlighted the multiple international treaties and instruments South Africa needs to honour. The Helen Suzman Foundation pointed out that the amended act puts children at risk, in that their status is tied to their parents. The Department of Home Affairs argued that the amendments provided a necessary filtering process in the asylum system and in fact created a “safety valve” to protect the principle of non-refoulement. “I would be gobsmacked if the Immigration Officer does not take into account the full basket of factors,” said Advocate Norman Arendse, appearing for the government. Judge Lister Nuku asked Arendse if someone who does not pass the first interview can still apply. Arendse said they could. His reply drew audible murmurs of disagreement from the full gallery at the back of the court, packed with asylum seekers and refugees. Scalabrini cited several cases of Ethiopian and Palestinian asylum seekers who have been detained for being in the country unlawfully after the first interview, denied access to the asylum system, and now face deportation. Deportation of asylum seekers cannot be used as a penalty or punishment for people who are in the country unlawfully, Scalabrini says. Arendse admitted that there are cases where Immigration Officers have made the wrong call. But advocate David Borgström, also appearing for the government, said that this does not mean the regulations are unconstitutional. “Attack the implementation, not the regulations,” Borgström said. The matter heard on Thursday was part B of Scalabrini’s application. Part A was heard in August 2024. That application sought an urgent interdict against the arrest and deportation of asylum seekers, including people who indicate they want to apply even if they have not yet done so. In September, the court granted an interdict against deportation but not against arrests. Because of the interdict, the Department of Home Affairs effectively shut off all access to the asylum system for new applicants. But arrests of people who want to seek asylum but who do not have valid visas have continued. Because the government is interdicted from deporting asylum seekers, thousands of people are in prison. Judge Judith Cloete said she was concerned that making an order setting aside the amendments would have unintended consequences for the government. Cloete asked Arendse and his team to advise what relief would be appropriate and feasible, should the court rule in Scalabrini’s favour. “You may have a better understanding of the administration at Home Affairs,” Cloete said. Judgment was reserved. |
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Australian Border Force (ABF) officers from the Department of Home Affairs exposed multiple cases of suspected exploitation of Australia's visa and migration system during targeted inspections recently across Hobart and Devonport. ABF officers profiled numerous Tasmanian companies, uncovering intelligence on 'phantom' nominations and fraudulent permanent residency applications under the Employer Nomination Scheme. This intelligence led to targeted early morning searches over several days, allowing officers to conduct staff interviews, verify bona fides and gather critical evidence. The operation exposed five non-existent nominated businesses, fraudulent application documents – including falsified lease agreements – and the misuse of two legitimate business credentials for bogus visa applications. ABF Commander Field Operations and Sponsor Monitoring, Ben Biddington, said this latest operation was a success in the ongoing efforts to protect Australia's immigration system. "Our officers are committed to identifying and stopping fraudulent activities. Those who attempt to exploit Australia's visa system, through fraudulent applications and activities, will be caught," he said. Resources are available to help migrant workers understand their rights and how to seek legitimate professional assistance when needed. Migrants applying for visas and who are paying for immigration assistance are urged to use legal practitioners or registered migration agents, who must abide by a code of industry practice and not engage in illegal behaviour. For more information and to check the Register of registered migration agents, visit the Office of the Migration Agents Registration Authority (OMARA) website. Commander Biddington said ABF officers would continue targeted operations throughout Australia, to protect the integrity of Australia's visa system. |
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For nearly two decades, a German couple have called South Africa their second home. Since 2005, pensioners Petra and Alfred Grueniger say they have invested millions of rand into the country, purchasing property and establishing a life here. The couple first visited South Africa in November 2005 and quickly fell in love with the country. Just two months later, they purchased a flat in Hibberdene on the South Coast. Over the years, they deepened their ties by investing in additional properties, including a house in Crestholme, which they built in 2010. For years, the couple split their time between Germany and South Africa, spending five to six months in each country. Despite having a home in Germany, they always considered South Africa their second home and therefore submitted applications to Home Affairs for permanent residence permits. "We have lovely friends here and would love to stay as long as we can,” Petra says. "My husband is 85 now, and I am 80. But we are both fit and hope to make it another couple of years.” But now, after eight years of waiting for permanent residence permits, they find themselves packing their bags once again, forced to leave before March 9 to avoid overstaying their tourist visas. Their ordeal began in March 2017 when they submitted their applications to Home Affairs. At the time, they were assured the process would take eight to ten months. Instead, years passed with no resolution. "Every three months, we must leave the country for one to two weeks just to avoid overstaying our visa, always hoping that our applications will be approved. We spent millions in South Africa and are definitely not a burden to the country!” said Petra. She said they carried out numerous follow-ups via emails and phone calls and they received only repeated assurances that their case had been escalated. Each time, they were told to check back in a few weeks. This month they finally received some good news: Alfred’s application had been finalised, however Petra’s was still pending. The couple, who had always applied as a retired pair, said they could not understand why one was approved while the other remained in limbo. "It’s good news that my husband’s application is finalised, but mine is still pending. If it isn’t approved soon, we will have to leave again,” said Petra. "We could have applied for a 90-day extension, but there’s no guarantee we would get it before our current visa expired.… Friends overstayed their visas by mistake for just two days and were blocked from entry for an entire year. We cannot take that risk.” The couple says this has taken an emotional toll on them. "After I had written to the ministerial office in January and received no response, we were mentally finished with South Africa,” Petra said. Adding to their frustration is the fact that when they check their application status, it is unchanged with no indication that Alfred was approved. "Their polite letter from last Monday hasn’t changed anything, it’s terrible!” said Petra.Home Affairs had not responded by the time of publication to a request for comment sent last week. The couple’s experience has led them to rethink their future. "We can no longer recommend that any European pensioner spend their retirement and their money in South Africa. It is heartbreaking," Petra said. The Home Affairs department had not responded by the time of publication to a request for comment sent last week. |
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This data was detailed in a recent Parliamentary Q&A, where the DEL was asked for a breakdown of all arrests of employers who were charged and convicted of violating the law by employing illegal immigrants without valid work permits in 2024. In response, the DEL explained that it conducts blitz inspections in collaboration with the Department of Home Affairs (DHA) and the South African Police Service (SAPS). "During such operations, DEL’s mandate is to enforce the implementation of labour laws to ensure the protection of workers in those particular companies. "At the same time, DHA scrutinises the validity of visas and work permits through the application of immigration laws," the DEL said. "In the event of noncompliance with immigration laws, DHA arrests the noncompliant employers and employees," it added. The statistics below indicate the arrests made by DHA during the joint operation, which spread across the different provinces. The DEL noted that each of the 68 employers arrested paid an admission of guilt fine of R10,000. Therefore, the total amount paid in fines was R680,000. Additionally, the DEL highlighted that 322 employees were arrested and taken for further processing as per immigration requirements. 34 employers and 34 employees were arrested in the Eastern Cape, and the fines totalling R340,000 were the steepest in the country. However, while the Eastern Cape had the most employers arrested, Limpopo recorded 163 employee arrests with only eight employer arrests. The Free State only recorded two employee arrests, while the Northern Cape and North West were the only provinces with no arrests. Province Employers arrested Employees arrested Total fines paid Limpopo 8 163 R80,000 Eastern Cape 34 34 R340,000 Mpumalanga 15 30 R150,000 Western Cape 2 43 R20,000 Gauteng 4 34 R40,000 Kwa-Zulu Natal 5 16 R50,000 Free State 0 2 R0 Northern Cape 0 0 R0 North West 0 0 R0 Total 68 322 R680,000 Government crackdown This data comes after the DEL committed to ramping up its inspection raids at the end of last year as part of its zero-tolerance stance on hiring illegal foreign workers in South Africa. Employment and Labour Minister Nomakhosazana Meth announced that the department had conducted nearly 2,900 inspections across all provinces in under a week in October 2024. These operations targeted various noncompliance issues, including wage violations, immigration breaches, and safety standards. In a recent compliance inspection drive, the DEL collected over R10 million in fines from noncompliant employers. The department’s efforts are set to intensify, with plans to expand the labour inspectorate from 2,000 to nearly 20,000 inspectors over the Medium-Term Expenditure Framework (MTEF) period. This drive by the DEL aims to increase the capacity for thorough audits and inspections across the country. According to Minister Meth, the goal is not only to enforce compliance but also to promote social justice and safeguard workers’ rights. Meth emphasised that fair labour practices boost employee morale and productivity, ultimately contributing to a stronger economy. Legal experts have urged South African employers to take proactive measures to ensure compliance, particularly concerning the employment of foreign nationals. Cliffe Dekker Hofmeyr (CDH) legal specialists advised businesses to review the employment status of their foreign workers to avoid potential breaches of immigration, employment, and criminal laws. Other legal firms have also expressed a word of caution to employers in South Africa following the developments. South African law firm Dentons urged businesses to adhere to the comprehensive immigration and employment laws that regulate the engagement of non-citizens in the workforce when employing foreign nationals. "Understanding and complying with this legal framework is essential to ensure companies don’t violate prescribed laws and avoid the consequences of noncompliance. "These laws govern work permits, visa requirements, and labour rights, ensuring that foreign workers are engaged lawfully and ethically," the firm said. |
