Appeals - rejected applications, Undesirable Declaration Waivers, V-listing and Legal Immigration Services

Appeals - rejected applications, Undesirable Declaration Waivers, V-listing and Legal Immigration Services

SA Migration – 31/05/2022



Our dynamic team of immigration consultants provide specialist advice on temporary residence visas, permanent residence permits, appeals on rejected applications, undesirable declaration waivers, V-listing and legal immigration services.
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Entry Denied at Port of Entry- What are your rights in South Africa?

Entry Denied at Port of Entry- What are your rights in South Africa?

 

Sa Migration – 31 May 2022

 

South Africa is the destination of choice for many people from the continent and the world. As a result of this the country’s ports receive millions of travellers annually entering for various reasons. However, on occasion a traveller is refused entry having been deemed ineligible for entry into the Republic for one or more reasons. Often persons who find themselves in this position are summarily sent back to their country of embarkation without being informed of their rights if any under our law and how to exercise these rights. In this week’s piece we will explore what the Immigration Act provides for persons in this position as well as what our courts have concluded in cases involving persons who have been refused entry.

Section 8(1) of the Immigration Act regulates what happens to a person who has been refused entry at a port of entry. Section 8(1) provides “An immigration officer who refuses entry to any person or finds any person to be an illegal foreigner shall inform that person on the prescribed form that he or she may in writing request the Minister to review that decision and-

1. a) If he or she arrived by means of a conveyance which is on point of departing and is not call at any other port of entry in the Republic, that request shall without delay be submitted to the minister; or

2. b) in any other case than the one provided for in paragraph (a), that request shall be submitted to the minister within three days after that decision.

Two key rights are expressed in this section, the first one is the right to be notified of the reasons for being denied entry and secondly the right to make an appeal to the Minister to review the decision. The Act also makes provision for a time frame of when the appeal should be made in these two instances when entry has been refused. The first arises when the conveyance is set to depart and will not call upon another port of entry in which case that appeal must be made immediately. The second instance is when conveyance is not at the point of departing, in which case the appeal must be made within three days from the act of being refused entry.

In section 8(2) the Immigration Act goes on to provide that if any person is refused entry or found to be an illegal foreigner as contemplated above, who has requested a review of such decision but is on a conveyance that is set to depart as contemplated in section 8(1)(a) shall depart on that conveyance and shall await the outcome of the review outside the republic. In a case arising under section 8(1)(b) , where the conveyance is not at the point of departure and the person has lodged an appeal with Minster the Act provides that this person Shall not be removed from the republic before the Minister has confirmed the relevant decision. Here is where the problems tend to begin, firstly most are not informed of their rights as required by the Act but where they are informed there seems to be a concerted effort by the Immigration officials to secure the immediate removal of the person notwithstanding the protections afforded to the person.

The right to review and to reasons are hallmarks of our administrative law and are enshrined in the section 33 of the Constitution which vests everyone who is at the receiving end of an adverse decision by the state the right to appeal that decision and the demands that the public official must provide reasons of their decision in writing. Our law recognises that the right to Just administrative action has two key aspects, the first one being the substantive aspect encapsulated in the statement the administrative action must be lawful or put differently it must be in line with an empowering legislation and the constitution. The second relates to the procedural fairness, the conduct or act must conform to procedural prescripts of the Act. Meaning where the Act says the official must inform the person by issuing a form 1, the failure to issue that form renders the action unlawful.

In the past when Home Affairs has been challenged on actions its officials have taken to deny a person entry they have put forward two principal arguments, first that have stated that once they have denied some one entry that person is no longer their responsibility but that of the conveyance as contemplated in section 35(10) of the Immigration Act. The have also argued that technically persons in the arrivals area at the port of entry who have not been formally admitted into the republic are not in the republic and therefore not subject to the protections afforded to them by the Act and the constitution. A final argument has been that in cases where a person has lodged an appeal in terms section 8(2)(b) wherein the Act provides that person shall not be removed from the republic, that person is not deprived if freedom as contemplated in section 12 of the constitution while also arguing they cannot be allowed to await the Ministers decision in the republic as doing so would be detrimental to their immigration enforcement efforts.

All these arguments have been dismissed out of hand by the courts. In Lawyers for Human rights & another// the Minster of t Home Affairs & another 2004 (4) SA 125 (CC) the Constitutional court held that “The denial of these rights to human beings who are physically inside the country at sea or airports merely because they have not entered South Africa formally would constitute a section of the values underlying our constitution”

In other Judgments in the SCA and High court this argument was dismissed as pure sophistry which ought to be disregarded offhand and that our courts would have jurisdiction to intervene in these matters in the same manner as they would be expected to intervene in a case involving the murder of a person at a port or entry. In Abdi V the Minister of Home Affairs (734/10) 2011 ZASCA 2, the Supreme court of Appeal found that Home Affairs remained the responsible authority when a person has been refused entry and they do not at any point abdicate that responsibility to the conveyance

As to whether a court can order the release of an inadmissible foreigner from an inadmissible faculty pending the outcome of a review of the decision the courts appear divided with judgements for and against the release. In Chen v the Director General of Home Affairs 2014 ZAWCHC 181, the court having assessed the conditions of the holding facilities at the airport concluded that these holding facilities were in fact detention facilities that had the effect of violating a person’s fundamental right to dignity and the right to freedom and security of person and her right to freedom of movement. The court went on to order the release of the person pending the minister’s decision but left it to the DHA to determine the conditions of the persons release.

As a final note for the airline industry who often find themselves caught between a rock and a hard place in these situations. It is worth noting the judgment of the High Court in Lin & Another v the Minster of Home Affairs & others. The court made several adverse findings against the airline in that case including punitive orders for contempt of court against certain employees of the airline. The airline had argued that their function was to merely carry out the orders of the Home Affairs in this case however the court found them wanting and essentially stating that where the airline has been advised of the persons rights it has a duty to ensure that they do not participate in the violation of that persons rights by observing the letter of the law and not blindly follow the instruction of DHA which often have been found to be unlawful.

 

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Prohibited Persons Status ( Vlisting ) and how to uplift a Prohibited Persons Status

Prohibited Persons Status ( Vlisting ) and how to uplift a Prohibited Persons Status

 

SA-Migration  31/05/2022

 

The Immigration Act and the Department of Home Affairs abhors fraudulent documents. Section 29(1)(f) provides ; The following foreigners are prohibited person and do not qualify for a port of entry visa, admission into the republic , visa or a permanent residence permit … anyone found in possession of a fraudulent visa, passport , permanent residence permit or identification document. Section 49(14) and 49(15) makes the use or attempted use of or uttering of any fraudulent document for the purpose of entering remaining in or departing from and residing in the republic a criminal offence, of which a person on conviction is liable to imprisonment of up to 15 years.

So when one finds him of herself in possession of a fraudulent document how does one comeback from this immigration abyss?

There are two paths to rehabilitating yourself when you have been rendered a prohibited person for using or attempting to use or uttering a fraudulent visa, permit or Identity document. Section 29(2) makes provision for the Director General on good cause declare that person is no longer a prohibited person.

This is done by way of submitting an application to Director General setting forth good cause why the person should be removed from the prohibited persons list.

Another avenue is in terms of section 32 of the Immigration Act and Regulation 30. Section 32 is an appropriate route in the event that the person is still in the country and looking to apply for a new visa. Regulation 30 provides 3 tests, that a person is an illegal foreigner, who has neither been arrested for the purpose of deportation nor been ordered to leave and who wishes to apply for a status after the expiry of his or her status.

Section 32 is applicable because by virtue of being in possession of a fraudulent permit or visa and have not been arrested ordered to leave then you meet the criteria under section 32.

The next criteria is that the person would need to show good cause why you failed to renew your previous visa.

This would include the circumstances that led to you being in possession of fraudulent document. Often people are victims of an elaborate immigration scam and their permits would have worked for few times and so would be unaware of the fraudulent nature of their status until it is brought to their attention. They are as much victims of the fraud as is the state. It is important to be able to prove definitively that a third party was at play and in our experience, this works to the persons advantage.

The last criteria would be proof that the person is eligible for the visa that they intend to apply for. This is submitted in the form of all the required documents for the respective visa.

It is important to highlight that immigration issues of this kind do not go away with time. The Department will always discover that a person’s status is fraudulent or obtained in a fraudulent manner. So tackling these head on will be the best approach to any similar situation. The effect of coming forward to attempt to regularise your status is better than not doing anything. Any good faith effort to rehabilitate your status will certainly mitigate risks of being criminally convicted and will count as a positive in an application to remove the prohibited person status.

It is also accepted that not every case can be rehabilitated.

For assistance with your immigration matter you can contact us at our offices and speak to one of our specialists.

 

Sa Migration International

Whatsapp Tel No : +27 (0) 82 373 8415

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South Africa is introducing self-service IDs and passports – what you should know

South Africa is introducing self-service IDs and passports – what you should know

Businesstech  28 May 2022

 

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The Department of Home Affairs is introducing a self-service system for smart IDs, passports and other documentation.

Presenting his departmental budget speech this week, deputy minister Njabulo Nzuza said the system is planned for roll out in the 2022/2023 financial year.

“The 2022/2023 budget will see us exploring new ways to better serve citizens. We will procure kiosks that will allow clients to self-service for passports and smart ID applications and reprint birth, marriage and death certificates,” he said.

“The kiosk will be designed in a manner that will require authentication through biometrics and will be located in strategic areas to allow access even after office hours or weekends. The self-service kiosk will usher a new era in the manner in which we service our clients.”

Nzuza added that his department will be rapidly expanding its online booking system in the coming months.

“The Branch Appointment Booking System pilot currently operates on a hybrid model in the 25 offices that we have rolled in because we didn’t want to turn away clients that have not made a booking and it is only used to book for applications of passports and Smart ID cards only.

“In the future, we would like to only service booked clients for those two products because it is our firm belief that scheduling an appointment for those two products is possible compared to scheduling a death or birth registration because those are occurrences that are not planned for in advance hence we will continue to take walk-ins for those two services.”

Citizens will be able to access the Home Affairs website link to schedule an appointment on their desktops, laptops, tablets and smartphones, he said.

He added that the government is exploring partnerships with more institutions and are in discussions with the South African Post Office to extend the accessibility of services.

“We are also exploring opening offices in the major shopping centres in which we envisage a positive uptake, with five of the malls having offered rent-free space for five years.”

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What can I do if my application for refugee status has been rejected and I have been given a ‘must leave’ letter?

What can I do if my application for refugee status has been rejected and I have been given a ‘must leave’ letter?

SA Migration – 30/05/2022


If your asylum application is rejected, this means that the DHA does not recognise you as a refugee.
You will receive a letter stating that you must leave the country or file an appeal usually within 30 days of being told of the rejection.
Depending on the reasons for the rejection of your application, you will need to appeal to the Refugee Appeal Board or the Standing Committee for Refugee Affairs.
If you think that you do qualify for refugee status it would be a good idea to seek legal advice from an organisation such as ours

How can we help you , please email us to info@samigration.com whatsapp me on:
+27 82 373 8415, where are you now? check our website : www.samigration.com
Please rate us by clinking on this links :
Sa Migration International
https://g.page/SAMigration?gm
Alternatively, please contact us on :
Sa Migration International
Whatsapp Tel No : +27 (0) 82 373 8415
Tel No office : +27 (0) 82 373 8415 ( Whatsapp )
Tel No admin : +27 (0) 64 126 3073
Tel No sales : +27 (0) 74 0366127
Fax No : 086 579 0155
www.samigration.com