Top court win for asylum seekers as Refugees Act provisions struck down

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.

Let us hope the visa landscape shifts from obstruction to collaboration

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

Home Affairs Minister in contempt of court in fraudulent visa matter

A foreign national and father of two’s honesty has caused him ongoing problems and legal fees.
For four years, he worked in the country with a fraudulent work visa, but the moment he reported the fraud to Home Affairs, rather than assisting him, he faced deportation.
The man, only identified as TC in a judgment delivered shortly before Christmas, told the Western Cape High Court that he had no idea that he was issued with a fraudulent visa. Being honest, he immediately reported it to the department.
This was the start of his uphill battle in a bid to obtain his work permit in a legal manner. The department time and again refused to issue him with a work permit and the man turned to the court in October last year in a bid for the department to reconsider his application.
The department, represented by the minister, during last year’s proceedings undertook to reconsider the matter within 40 days and to report back to the applicant.
The 40 days lapsed at the end of November, yet the applicant did not hear a word from the department. He subsequently turned to the court for an urgent order holding the minister in contempt of court.
He explained that while not having a legal working permit, he was unable to provide for his family.
The applicant said the department in October undertook to take another look at his application for a work permit. This undertaking was made an order of court, yet nothing was done by the department.
In his urgent application he asked that the department had to within a week reconsider his working visa. If this order was also ignored, the applicant said, he wanted the minister to come to the court to explain why he should not be held in contempt of court.
The applicant told the court that in 2016 he obtained a work permit through a third party in South Africa. In 2020 he became aware that his purported work permit was, in fact, fraudulent and that that third party defrauded him.
He immediately approached the Department of Home Affairs in good faith to have the situation rectified. The applicant voluntarily submitted the fraudulent visa to the department and asked for a lawful resolution of the matter.
In applying the provisions of the Immigration Act, the applicant was immediately prohibited from qualifying for a visa or admission into the republic because of him having a fraudulent permit. He was declared a prohibited person in the country.
He then applied to the department not to be declared a prohibited person, as he said these were special circumstances as he had fallen prey to fraud through no fault of his own. The director-general of the department rejected this application.
The applicant subsequently applied for the rejection to be reviewed.
The minister failed to adjudicate the applicant’s review application timeously. One year lapsed from the date of the application and up to launching the urgent application the department had remained mum on the subject.
One of the arguments forwarded on behalf of the department was that the October court order was never served on the minister. But Judge James Lekhuleni frowned upon this, as the minister, through his department, in fact agreed to that order (to reconsider the work permit).
“I find it strange and opportunistic to argue that the minister is not aware of this application. The October 2023 order was obtained by agreement with the minister. Before this application was instituted, there were several email exchanges between the officers representing the minister and the applicant’s attorneys. These officials were informed that the applicant intended to bring this application.”
The judge added that on the evidence placed before the court, there could be no doubt that the minister was in contempt of court.
He gave the minister 10 days to abide by last year`s court order. Judge Lekhuleni said if the minister did not comply, he faced the possibility of coming to court to explain why not

No end in sight for South Africa’s massive visa backlog: report

A leaked memo seen by the Sunday Times from the state attorney’s office to the Department of Home Affairs has raised questions about the latter’s growing visa backlog, which is reportedly now sitting at over 95,000 applications.

According to the paper, the state attorney’s office has warned of massive fallout from the backlog, including the thwarting of immigration processes, national security risks from the DHA trying to rush through applications, and an overall impediment to economic growth from skills being blocked from entering the country.

More worrying is the view that the problem does not appear to be getting any better.

In December, Home Affairs Minister Aaron Motsoaledi noted in a recent parliamentary Q&A that the backlog in temporary residency visas remained at over 74,309 unchanged from the department’s last report at the end of October 2023 adding that an additional backlog of 43,944 in permanent residency permits also remains.

The memo in question was dated 1 November, the Sunday Times said, which means that the December backlog was already well over 100,000 when combined.

Immigration lawyer Gary Eisenberg said in December that the backlog crisis is probably much worse and that the numbers provided by the department are somewhat misleading, as they likely do not include applications that have been appealed or are under review.

“It’s unclear whether the numbers given by the department include application appeals and those under review, and that number is likely far higher than the 74,000,” said Eisenberg.

“Even if some foreigners with the means are able to get a court order to force the minister to make a decision on their applications, many of those orders are being ignored,” he noted.

Eisenberg added that skilled foreign professionals who are needed to fill the gaps on the critical skills list  are simply walking away. “They cannot wait a year for a visa or spousal visa, so they are going elsewhere.”

Like the state attorney’s office, experts have cast doubt on the department’s ability to clear the backlog.

In a parliamentary Q&A near the end of November, Motsoaledi noted that the time frame to fix the backlog has been pushed back from June 2024 to November 2024.

This has increased the time frame the department expects to address the massive backlog in critical visas by almost half a year.

In response to the department’s plans to clear the backlog, Motsoaledi said it remains the same as previously reported outlined in the “backlog eradication plan”.

“The plan aims to move the older Temporary Residency Visas applications from 2022 concurrently with the current applications of 2023. This will be done by splitting the temporary residence visa team into two,” he said at the time.

The same approach is being implemented for Permanent Residence Permits, he added.

“The plan includes the utilisation of current capacity in the Immigration Branch supported by the additional officials from other branches, including those in provinces. It also includes those officials who have returned from the Foreign Missions after serving their four-year deployment term.”

Other options to supplement existing capacity and resources are also being looked at and may be implemented should it be deemed necessary to do so to support the eradication plan.

Artificial Intelligence rates Cape Town the MOST BEAUTIFUL CITY in the World

Artificial Intelligence rates Cape Town the MOST BEAUTIFUL CITY in the World and here’s the story told by Kabous le Roux of Kfm 94.5.

“It’s the 28th of December, and the most skeletal of skeleton staff is holding the fort here at HQ in De Waterkant.

So, we had a brainwave!

Just for the heck of it (it’s REALLY quiet and boring at work right now), we’re going to tell ChatGPT, ‘Rank the world’s cities by beauty’then simply publish that as an article, whatever it spits out.

Prompt: Rank the world’s cities by beauty.

Answer by ChatGPT (verbatim):

Beauty is a subjective and personal perception, and ranking cities by beauty can vary greatly depending on individual preferences and cultural backgrounds. Additionally, beauty can be found in different aspects of a city, such as architecture, natural surroundings, cultural richness, and more. Therefore, any attempt to rank cities by beauty is inherently subjective and may not accurately represent everyone’s opinion.

That being said, some cities are commonly regarded as aesthetically pleasing by many people due to their unique features and attractions. However, it’s important to approach such rankings with an open mind and an understanding that different people appreciate different aspects of a city.

Here is a subjective ranking, in order of beauty, of a few cities that are often praised for it:

Cape Town, South Africa Table Mountain and coastal landscapes with a mix of modern and historic architecture, along with a rich cultural heritage.

Vancouver, Canada Surrounded by mountains and the Pacific Ocean, featuring a blend of natural and urban beauty, and a diverse cultural scene.

Rio de Janeiro, Brazil Iconic beaches, mountains, and lush greenery with a vibrant urban setting and a lively cultural atmosphere.

Sydney, Australia Harbor views, beaches, and nearby national parks, along with iconic landmarks and a vibrant cultural scene.

Queenstown, New Zealand Situated on Lake Wakatipu with the Southern Alps, complemented by charming architecture and a relaxed cultural vibe.

Santorini, Greece Clifftop views of the Aegean Sea with unique, white-washed buildings and a rich historical and cultural background.

Banff, Canada  Stunning Rocky Mountain scenery alongside rustic mountain architecture, and a connection to the Indigenous cultures.

Bergen, Norway Fjords, mountains, and coastal beauty, featuring colourful historic buildings and a strong cultural identity.

Honolulu, Hawaii, USA Tropical landscapes and Pacific Ocean surroundings, blended with Hawaiian architecture and a unique Polynesian cultural heritage.

Paris, France Architectural beauty with iconic landmarks, complemented by a rich history and cultural significance.

Remember, this list is not definitive, and the beauty of a city is ultimately in the eye of the beholder. Additionally, new perspectives and emerging destinations can continually reshape the perception of beautiful cities.”