Asylum seekers and stateless individuals face significant challenges when attempting to find refuge in a new country, including the risk of detention upon arrival due to unauthorized entry. South Africa has witnessed landmark judgments in recent years that reinforce the protection of asylum seekers and highlight the state's responsibility to protect those facing lifelong statelessness, especially in cases involving children.

The Challenges of Asylum Seekers

Asylum seekers often endure perilous journeys to reach a country where they can seek refuge. One of the primary obstacles they face is the risk of detention on arrival, particularly if their entry is unauthorized. This may occur due to various reasons, such as entering a country with false documentation, unauthorized crossing of borders, or relying on smugglers for entry. International legal instruments, notably the 1951 Refugee Convention, emphasize that detention should only be used as a last resort, and asylum seekers should not be penalized for entering a country illegally, as long as they have the intention to seek asylum.

In response to these challenges, bodies like the United Nations and the Office of the High Commissioner for Refugees (UNHCR) have urged governments to gradually abolish immigration detention and adopt alternatives such as electronic monitoring, reporting requirements, or community supervision. These alternatives ensure the humane treatment of asylum seekers while respecting their right to seek protection.

S A v Minister of Home Affairs and Others (2023): Protection of Asylum Seekers

A landmark judgment by the High Court of South Africa (Gauteng Division, Johannesburg) in S A v Minister of Home Affairs and Another; S J v Minister of Home Affairs and Another; B I v Minister of Home Affairs and Another (2023) significantly reinforced the rights of asylum seekers. This decision addressed the principle of non-refoulement, a cornerstone of refugee protection, and interpreted the amendments to the Refugees Act of 1998 and its regulations, which came into force in 2020.

The case centered on three individuals who had entered South Africa unlawfully and expressed an intention to seek asylum. They were detained under section 34 of the Immigration Act, 2002, which allows detention of illegal foreigners. However, the court found that their detention should cease as soon as they expressed their intent to apply for asylum. This ruling aligns with the Refugees Act, which ensures that asylum seekers' rights are protected even if they are in the country unlawfully, provided they indicate an intention to seek asylum.

The court’s analysis drew from prior Constitutional Court decisions that highlighted the broader scope of the right to seek asylum, beyond just submitting an application. It emphasized that the Refugees Act takes precedence over the Immigration Act in cases of conflict and reinforced that the principle of non-refoulement ensures protection for asylum seekers until their claims are properly evaluated.

The judgment also declared Regulation 8(4) of the Refugee Regulations (2018), which required asylum seekers to show good cause for their claim, to be ultra vires (beyond legal authority). This provision, which allowed judicial officers to impose extra requirements before granting asylum, was ruled unconstitutional because it undermined the Refugees Act.

The court’s decision not only affirmed the rights of asylum seekers to seek asylum but also set important precedents for the treatment of individuals who enter the country unlawfully but express a legitimate claim for asylum.

Childhood Statelessness in South Africa: The Khoza Case (2023)

Another critical issue for refugees and asylum seekers in South Africa is the phenomenon of statelessness, particularly for children born to irregular immigrants. Stateless individuals often struggle with proving their identity, which can severely hinder their access to legal protections and basic services like education, healthcare, and employment.

In the case of Khoza v Minister of Home Affairs and Another (2023), the High Court of South Africa addressed the issue of statelessness by considering the situation of a child born in South Africa to an irregular immigrant mother and an unknown father. Mr. Khoza, the applicant, was stateless and had lived his entire life in South Africa without official documentation. Despite numerous attempts to register his birth with the Department of Home Affairs, he was repeatedly denied assistance.

The court found that it was not reasonable to expect Mr. Khoza, an orphan with no documentation of his birth, to prove his citizenship beyond doubt. It highlighted the challenges faced by children born in informal settlements or to parents who are themselves undocumented. The court noted that in these circumstances, individuals often have difficulty providing the usual documentation required for birth registration, such as hospital records.

The court's judgment reinforced the 1954 UN Convention on Statelessness and the Births and Death Registration Act (BDRA) of 1992. It emphasized that late birth registration must be facilitated, especially in cases where the individual was born in the country but cannot provide standard proof of birth due to their parents' irregular status or informal living conditions. The court ordered that Mr. Khoza's birth be registered and declared him a South African citizen by birth or, alternatively, by naturalization.

The court also ordered that the Minister of Home Affairs accept applications for citizenship by affidavit in cases like Mr. Khoza’s, pending the enactment of new regulations. This decision has significant implications for other stateless individuals in South Africa, establishing a precedent that the state must accommodate their circumstances and facilitate their legal recognition and citizenship status.

Practical Implications and State Responsibility

Both of these cases underscore the importance of recognizing and protecting the rights of asylum seekers and stateless individuals. They highlight the obligation of the state to provide avenues for refugees and stateless persons to access legal recognition, protection, and services, regardless of their formal immigration status.

The Khoza case, in particular, illustrates the state's duty to protect vulnerable children born in the country, even if their parents are irregular migrants or stateless. The ruling emphasizes that the lack of documentation should not be an insurmountable barrier to citizenship or legal recognition. It also aligns with broader international human rights frameworks aimed at protecting the rights of children, particularly those born to migrants or in informal settlements.

The S A case, on the other hand, reinforces the principle that asylum seekers are entitled to protection and the right to seek asylum as soon as they express an intention to do so, regardless of their legal status. By ruling against the requirement for asylum seekers to demonstrate good cause and clarifying the procedural requirements for asylum applications, the court has enhanced the efficiency and fairness of the asylum process in South Africa.

In both instances, the courts have reinforced the importance of ensuring that vulnerable individuals—whether asylum seekers or stateless children—are not left in a state of legal limbo, but are afforded the protection and rights they are entitled to under South African and international law. These decisions serve as a reminder of the state's responsibility to uphold the rights of the most marginalized individuals in society, ensuring that they are granted the opportunity to seek refuge, gain legal status, and live with dignity.

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In a recent landmark Constitutional Court judgment, Chief Justice Zondo, alongside eight other Constitutional Justices, addressed the constitutional validity of certain provisions of the Immigration Act and its associated regulations, focusing on the impact these provisions had on foreign nationals whose spousal relationships with South African citizens ended. The case involved two consolidated matters: the Rayment application and the Anderson application. Both applications challenged the constitutionality of provisions within the Immigration Act, specifically those concerning spousal visas and their expiration upon the termination of a marriage or a good faith relationship.

Background: The Applicants and Their Circumstances
The applicants in both cases were foreign nationals who had entered into marriages or good faith spousal relationships with South African citizens. As a result of these relationships, the applicants were granted spousal visas to reside and work in South Africa. Many of the applicants also had children who were either born in South Africa or acquired South African citizenship through their parents. However, when these relationships ended, either through divorce or the termination of the relationship, the spousal visas expired. This caused the foreign nationals to face the dilemma of having to leave the country or apply for a new visa or permit from outside South Africa, effectively making their continued stay in the country unlawful.
The Rayment application involved Tereza Rayment and her five children, while the Anderson application concerned Richard William Anderson and three other applicants, including his son and the minor child of another couple, Joshua Okoth Ogada and Tanja Estella Bosch. Both groups of applicants were adversely affected by the provisions of the Immigration Act, which mandated that a foreign national’s spousal visa would become invalid upon the dissolution of their relationship with a South African citizen.

Provisions of the Immigration Act Under Scrutiny
The applicants challenged several sections of the Immigration Act and related Regulations on the grounds that these provisions were unconstitutional:
•    Section 10(6): This section governs the ability of a foreign national to apply for a change of visa status or conditions. Specifically, it stipulates that a foreign national can apply to change their visa status or conditions while in South Africa, except in the case of a visitor’s or medical treatment visa, where changes can only be made under exceptional circumstances.
•    Section 11(2): This provision prevents holders of a visitor’s visa from engaging in work unless specific exceptions are made by the Director-General.
•    Section 18(2): This section states that the holder of a relative’s visa (including spousal visas) cannot engage in work.
•    Regulation 9(9): Regulation 9 outlines the circumstances under which a foreign national may apply for a change in their visa status while in South Africa, with a specific reference to emergency situations, such as needing lifesaving medical treatment beyond three months.
These provisions were challenged because they restricted the rights of foreign nationals to continue living and working in South Africa after their spousal relationships ended, especially when they had dependent children who were South African citizens.

High Court Judgment and Constitutional Challenges
The High Court of the Western Cape ruled in favor of the applicants, declaring that the provisions in question were unconstitutional and invalid. Specifically, the court found that these provisions were inconsistent with the Constitution of South Africa, which guarantees various fundamental rights, including the right to human dignity, the right to family life, the right to equality, and the best interests of the child.
The High Court's reasoning was that the provisions of the Immigration Act and its regulations unjustly forced foreign nationals to leave the country upon the dissolution of their relationships, even though they were the parents of South African children. The termination of the spousal relationship, according to the High Court, should not automatically render a foreign parent’s stay in South Africa illegal, especially when their legal obligation to care for and support their children continued unabated.

The Constitutional Court's Considerations
Upon appeal to the Constitutional Court, the core issue was the impact of the Immigration Act’s provisions on the right to human dignity of the foreign spouse and their children. The Court considered whether the forced cessation of employment due to the expiration of a spousal visa, and the requirement that the foreign national leave the country to apply for a new visa, infringed on several constitutional rights.

Key points of concern identified by the Constitutional Court:
•    Impact on Human Dignity: The Court found that the provisions of the Immigration Act, particularly sections 10(6), 11(2), and 18(2), infringed on the right to human dignity of foreign nationals. The law required foreign nationals to cease working and leave South Africa to apply for a new visa or permit, which violated their ability to support themselves and their children.
•    Impact on Family Life and Best Interests of the Child: The Court emphasized that the provisions unjustly interfered with the right to family life and the best interests of children, as enshrined in the Constitution, particularly in section 28(2), which states that the best interests of the child are paramount in all matters concerning children. The Court highlighted that the forced separation of a parent from their child due to immigration status was an unreasonable burden that conflicted with this constitutional principle.
•    Parental Rights and Responsibilities: The Constitutional Court also noted that foreign parents of South African children should not be compelled to choose between their legal obligation to support their children and complying with immigration laws that prohibited them from working after the dissolution of their spousal relationship.

The Constitutional Court’s Judgment
The Constitutional Court agreed with the High Court’s findings and declared that the provisions under sections 10(6), 11(2), and 18(2) of the Immigration Act, as well as Regulation 9(9)(a), were unconstitutional. The Court stated that these provisions unfairly discriminated against foreign nationals and infringed upon several fundamental rights, including the right to dignity, freedom of movement, and the right to family life.

However, the Constitutional Court did not immediately make these provisions invalid. Instead, it suspended the declarations of invalidity for a period of 24 months, allowing time for Parliament to amend the Immigration Act and the relevant regulations. During this suspension period, the Court imposed certain interim measures to alleviate the hardships caused by the unconstitutional provisions:
1.    Section 10(6)(a) was deemed to allow certain foreign nationals, particularly parents of South African children, to maintain their visa validity pending new applications, despite the termination of their marriage or relationship with a South African citizen.
2.    Section 18(2) was read to allow foreign nationals on relative visas (including spouses) to continue working in South Africa for the full duration of their visa, even after the dissolution of their relationship.
3.    Regulation 9(9)(a) was amended to include a new provision for parents of South African children, allowing them to maintain their stay in South Africa while applying for a change in their visa status.
If these constitutional defects are not addressed within the 24-month period, the reading-in of the provisions will become permanent, making these changes final.

Implications of the Judgment
This judgment is a significant victory for foreign nationals who previously held spousal visas and for their children, who are South African citizens. The ruling underscores the primacy of family unity and emphasizes the importance of the best interests of the child, as well as the human dignity of foreign nationals who are parents to South African children.
Furthermore, the case highlights the need for fairer immigration laws that balance the state's regulatory interests with the rights of individuals, especially those whose children are citizens. The Court's decision ensures that foreign parents are not penalized for the dissolution of their relationships with South African citizens, particularly when they continue to bear legal and moral responsibilities for their children.

By mandating that the government amend the law to address these constitutional defects, the Court has made clear that the rights of children and foreign nationals must be better protected in future legal frameworks. The judgment also acts as a reminder that constitutional rights cannot be subordinated to administrative or procedural concerns, particularly when they impact vulnerable individuals like children.
In sum, the Constitutional Court's decision reaffirms the fundamental rights of foreign nationals in South Africa, particularly the right to maintain their family life and provide for their children, without unnecessary and arbitrary limitations imposed by outdated immigration laws.
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With the festive season drawing to a close, eThekwini Metro has recorded an increase in the number of tourists who visited the city compared to previous years. The only metro in KwaZulu-Natal had set itself a target of just over one million visitors. But Cyril Xaba, eThekwini Metro mayor, says the city has surpassed its expectations. We are not out of the woods yet. But these numbers are encouraging and show that we are on an economic recovery trajectory. This also clearly indicates that the metro remains a premier holiday destination for international and domestic visitors. In fact, the increased tourism numbers tell us that South Africa was in Durban for the festive season, Xaba explained.He said while tourism authorities in the metro, which serves as the economic heartbeat of the province, had wanted to have at least 1.3-million holidaymakers touching down in Durban, the number shot up to just close to 1.5-million as of January1. This translates to over R2-billion tourism spend, which represents a marginal improvement of R500-million injected into the metros economy when compared to last years numbers. The tourism numbers for eThekwini metro for 2023 show that the metro recorded 703000 visitors, with R1.5-billion being injected as a result. Early last year, Minister of Tourism Patricia De Lille embarked on a tourism drive in eThekwini, which among her key objectives was to arrest the plummeting tourist numbers. Last February, a task team was established with the key objective of dealing with the aftermath of the 2021 riots, which engulfed Durban and other parts of the country, leaving death and untold economic meltdown. This, together with the crippling infrastructure, crime and water quality in several of the metros 23 beaches, scared visitors off. We worked hard together with the private sector and the tourism sector to get Durban back to its glory days in terms of tourism. The established task team assisted us in achieving the progress youre seeing today, De Lille explained. Xaba also said the hospitality industry was among those that benefitted substantially because of a surge in tourists. We are getting a report that accommodation in and around the city had an occupancy rate of about 75% to 80%. Hotels close to the beachfront were fully booked, he said. Over the years, the metro has been losing its substantial tourism share owing to dwindling visitor numbers. The beach life has often been a draw card for inland visitors and international tourists seeking the warm Indian Ocean. But high levels of e-coli, mainly linked to sewage spills, initially detected at some of the highly frequented beaches, had turned many visitors away. Exacerbating the woes was some of the key hotels deciding to shut their doors because of the dwindling numbers. The metro has also seen some of its tourist attractions such as the Fun World ceasing to exist,further straining the metros tourism potential for the city once dubbed South Africas playground. In 2015, the metro recorded one of its best tourism numbers with 7.4-million tourists. Besides Western Cape, the north and south coasts of KZN have seen an increase in tourists. Most visitors were recorded from December 16 to January 1

The South African Qualifications Authority (SAQA) plays a critical role in the process of obtaining a South African work visa, particularly for applicants who need to provide proof of their foreign qualifications. Below is a detailed explanation of SAQA, its purpose, the evaluation process, and its relevance to South African work visa applications.1. What is SAQA?The South African Qualifications Authority (SAQA) is a statutory body established under the National Qualifications Framework Act (NQF) No. 67 of 2008. Its primary role is to oversee the development and implementation of the National Qualifications Framework (NQF) in South Africa.SAQAs main function is to ensure that qualifications obtained outside South Africa are assessed and recognized as equivalent to South African standards, ensuring consistency in qualifications evaluation.Key Functions of SAQA:Evaluation of Foreign Qualifications: Determines whether a foreign qualification is comparable to South African standards.Recognition of Learning Outcomes: Ensures that qualifications are aligned with South Africas education system.Accreditation of Training Programs: Assesses educational programs and training institutions to ensure quality standards.Verification of Qualification Authenticity: Confirms that qualifications are genuine and not fraudulent.2. Why is SAQA Required for Work Visas?For most South African work visa categories, especially the General Work Visa and Critical Skills Visa, applicants must prove that their foreign qualifications meet South African standards.Key Reasons for SAQA Evaluation in Work Visas:1.Qualification Verification:oEnsures the applicants education and skills match the job requirements specified in their visa application.2.Skills Recognition:oConfirms that the applicants qualifications meet the minimum educational standards required for the job role.3.Labour Market Protection:oHelps the Department of Home Affairs (DHA) verify that foreign workers possess the required skills and that South Africans cannot fill the position.4.Compliance with Immigration Laws:oThe Immigration Act No. 13 of 2002 mandates proof of qualifications equivalence for visa issuance.3. Which Work Visas Require SAQA Evaluations?1.General Work Visa:oRequires SAQA evaluation to verify that foreign qualifications match South African job requirements.oLabour market testing is often required to confirm the unavailability of local talent.2.Critical Skills Work Visa:oSAQA evaluation is mandatory to confirm that the applicants qualifications align with South Africas Critical Skills List.oEven if an applicant has extensive work experience, academic qualification equivalence is still required.3.Intra-Company Transfer Visa:oSAQA evaluation is not always mandatory unless specific South African professional registration is required for the transferred role.4.Corporate Visa:oEmployers sponsoring multiple foreign employees must prove that each employees qualifications meet job criteria, and SAQA certification may be requested as part of compliance checks.4. The SAQA Evaluation Process for Work VisasStep 1: Application Submission. Create a profile and submit an application through the SAQA online portal (www.saqa.org.za).Upload all certified copies of qualifications, transcripts, and identity documents (passport).Step 2: Supporting DocumentsApplicants must provide the following:1.Qualification Certificates: Copies of diplomas, degrees, or transcripts.2.Official Transcripts: Academic records showing subjects and results.3.Translation of Documents: If not in English, official translations must be submitted along with originals.4.Proof of Accreditation: Confirmation that the awarding institution is recognized by the respective countrys education authority.Step 3: Verification Process SAQA verifies the authenticity of the qualification with the issuing institution.The qualification is then assessed to determine equivalence under the National Qualifications Framework (NQF).Step 4: Outcome Report Once the evaluation is complete, SAQA issues a Certificate of Evaluation, indicating the NQF level of the foreign qualification.This certificate is included as supporting evidence in the visa application.5. Processing Times and Fees Processing Time:oStandard applications take 15 20 working days.oUrgent processing may take 10 working days but incurs higher fees. Fees:o Fees are subject to change but typically range between R880 and R1000 (approximately $50`$60 USD) per application.Validity Period of SAQA Report:oThe SAQA evaluation is valid indefinitely, but it is advisable to re-check validity in case of any changes to immigration laws or visa requirements.6. Challenges with SAQA EvaluationsDelays in Processing:Applications may take longer due to verification delays with foreign institutions.Unrecognized Institutions:If the awarding institution is not accredited in the home country, the qualification may not be recognized by SAQA.Document Issues:Missing, incomplete, or uncertified documents can lead to rejection or delays.7. Alternatives to SAQA EvaluationIn certain cases, professional bodies in South Africa may conduct industry-specific evaluations instead of SAQA. For example:Engineering Council of South Africa (ECSA): For engineering-related qualifications.Health Professions Council of South Africa (HPCSA): For medical professionals.South African Institute for Chartered Accountants (SAICA): For accountants and finance professionals.These evaluations are often required in addition to SAQA if the profession requires licensing or registration.8. Final ThoughtsSAQA evaluations are a mandatory and critical step in the South African work visa application process, especially for applicants applying under General Work Visas and Critical Skills Visas. The evaluation ensures that foreign qualifications meet local standards and helps protect South Africas labor market while filling skills shortages with qualified candidates.Applicants should start the SAQA process well in advance of their visa application deadline to avoid delays and carefully ensure all documentation is certified, translated (if required), and properly submitted. Consulting with immigration specialists can also help streamline the process and resolve any unexpected complications.How can we help you , please email us to info@samigration.com or whatsapp message me on:  +27 82 373 8415, where are you now? check our website : www.samigration.comPlease rate us by clinking on this links : Sa Migration Visashttps://g.page/SAMigration?gm