Having a valid work visa in South Africa does not constitute freedom to work, but rather a narrow authorisation to work for a specific employer.
On 26 October 2024, 10 days before the 60th US presidential elections, The Washington Post, owned by Jeff Bezos’ Nash Holdings, broke an exclusive report titled “Elon Musk, enemy of ‘open borders,’ launched his career working illegally”.
The report focused on Musk’s immigration status in the mid-1990s when he moved from Canada to California to study for a PhD at Stanford University. In 1995, Musk, with his brother Kimbal and friend Gregory Kouri, launched Zip2, his first tech start-up and the first of his many entrepreneurial successes, in Palo Alto.
According to US immigration experts cited in The Washington Post report, at the time Musk was in contravention of his immigration status as he was not allowed to work or conduct a business while on a study visa for a course of studies for which he ultimately never formally enrolled.
Although Musk denied the claims by stating “I was on a J-1 visa that transitioned to an H1-B. They know this, as they have all my records. Losing the election is making them desperate”, it appears that some of the receipts The Washington Post could count on for its report came directly from Musk and his brother Kimbal’s own statements over the years.
While Kimbal was open about it, stating in 2013 that “we were illegal”, even Elon, back then, conceded that immigration-wise, at best, they were in a legal “grey area”.
In South Africa
Distancing this quarrel from its US political bipartisanism and from a Musk-Bezos scoring match, and focusing on a strictly South African immigration perspective, the biggest takeaways relate to identifying and acknowledging that a “grey area” exists, and the dire consequences of becoming an illegal foreigner.
In terms of the South African Immigration Act, an illegal foreigner is “a foreigner who is in the Republic in contravention of the Act and includes a prohibited person”.
Illegal foreigners may be ordered to depart and are otherwise subject to arrest and deportation. As the conditions attached to any visa are binding, conducting an activity other than that which a visa allows is deemed a contravention in terms of the Act.
The Act also lists “Offences” (other than “Administrative offences” as per s50) and these extend to “anyone who enters or remains in, or departs from the Republic in contravention of this Act, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding two years” [per s49].
The grey area
In South Africa, to date, many unsuspecting foreigners, as was once upon a time perhaps also young and ambitious Elon Musk in the US, are confused, ill-informed and oblivious about that same grey area and sometimes fail to understand the consequential gravity of non-compliance with their visa conditions.
Work visa holders who hold valid visas to work for employer A, for instance, and want to take up a position with employer B, may not realise that this change must be authorised and approved through an inconvenient full fresh application disguised under the simplistic terminology of a “change of condition” application.
A valid work visa in South Africa does not constitute freedom to work, but rather a narrow authorisation to work for a specific employer.
Rarer appear to be instances relating to contraventions made by study visa holders who remain actively enrolled for studies yet change institutions as, over the years, learning institutions (and differently from employers) have been more alive to, and cognisant of, their obligations in terms of the Act by implementing their due diligence more frequently.
Said obligations include: notifying the director-general (DG) within seven days of the student’s failure to register and reporting to the DG within 30 days should the foreign student no longer be registered. The study visa of a foreign student who fails to enrol or who ceases his/her studies is null and void in law and the foreigner who continues to reside in South Africa on such a visa is therefore considered an illegal foreigner. The latter situation is on point with the allegations made against Elon’s status in The Washington Post report.
Another salient example relates to spousal-based visa holders who, with dismay upon the breakdown of their relationships, discover that their visas may still be valid on paper, but are considered null and void in law. The breakdown of the relationship constitutes a contravention of the primary and fundamental condition of their visa status, which is literally that of residing with their now ex-spouse. This extreme repercussion often compels individuals to remain in abusive relationships for fear of having to depart South Africa.
Constitutional watchdog
This imbalance of power to which spousal visa holders have long been subjected is even more evident and alarming in instances where the foreign spouse is also the parent of South African children born of that same union.
This was a major legal lacuna that the late Gary Eisenberg identified and took to heart by challenging its constitutional invalidity. On 4 December 2023, the Constitutional Court handed down a landmark unanimous judgment providing for a relative visa with working rights for parents of South African citizens or permanent resident minor children, and for the ability of parents of South African children or permanent residents to change status from within South Africa.
The so-called “parental visa” was ultimately created by recognising the child’s best interests to be paramount, and by warranting an immigration safehold to foreign parents regardless of the status of a spousal relationship.
This judgment and its widespread ramifications form part of Gary Eisenberg’s lasting and unparalleled legacy, and contribution to the democratisation of South Africa’s immigration process, a transformation that is still far from complete.
On deportations
Contrary to a widespread misconception, illegal foreigners are not just those who have illegally entered the country and are undocumented, but also, perhaps disproportionally, any foreigner who contravenes the Act while in the grey area of non-compliance. It seems evident that a blind application of rules by the police and the Department of Home Affairs may well be found, on closer inspection, to be too harsh – if not unconstitutional – in certain instances.
In the past few months, the temperature surrounding illegal foreigners and deportations has increased to unprecedented levels. Raids and arrests across the country in joint operations by SAPS, Home Affairs and the departments of employment and labour have been reported and have often been applauded, tickling once again the South African xenophobic underbelly that cloaks itself behind freedom of crazed speech.
Hospitals are also being raided and undocumented patients removed. The disconnect from the constitutionally enshrined principle of ubuntu is disturbing.
As Home Affairs Minister Leon Schreiber proudly reported that 19,750 illegal foreigners were deported between April and August at the exorbitant cost of R52-million, the Scalabrini Centre of Cape Town, with Lawyers for Human Rights, obtained an interim order in the Western Cape High Court stopping the deportation of any person who has indicated they intend to apply for asylum.
Perhaps, unsuspected by many, South Africa is one of the most prolific deporting nations globally, deporting more people per capita than even the US and Australia. Minister Schreiber’s spokesperson Duwayne Esau stated “we are now on track to outperform last year by a full 50% when there were 39,627 deportations over 12 months”, noting a 164% increase from 2022/23.
Simultaneously and worthy of mention, the Scalabrini Centre produced an eye-opening, factually accurate documentary titled On the Line. The documentary digs deep into the notoriously human rights-abusive deportations in South Africa in its quest to find alternatives to the detention and deportation system. The documentary premiered in Cape Town in late August and will be screened internationally in the coming months.
The in-between: calling again for an amnesty
In light of the persisting issues surrounding the unaccounted real numbers of illegal foreigners, the porous borders, the human rights violations carried out with the mass deportations, and the corruption within the department, and echoing Gary Eisenberg’s voice, I recently called for a well-co-ordinated and well-informed amnesty with specific census objectives of the illegal population as the only effective solution, and to “avoid running dangerous witch hunts that only lead to bribes and fraud or, even worse, human rights violations”.
The so-called grey area pertains to each individual and not to a generic classification. Skills are as valuable as work, personal and social ethics. In simple cause-and-effect terms, the more restrictive an immigration regime is in conjunction with geographical, socioeconomic and historical factors that attract migrants to a country, the higher the number of illegal foreigners will be and the more sophisticated the level of fraud.
A change to the causal pattern, such as an amnesty and a special exemption, could result in a more cost-efficient manner of resolving this crisis. Unfortunately, this is not on the Government of National Unity’s agenda, notwithstanding the fact that some parties, including the DA, have previously endorsed a similar proposition while in opposition.
Love him or loathe him, looking back at what Elon Musk has created and built from his early days, even while balancing precariously between visas and borders, it is undeniable that his ambition and vision have uniquely affected America’s industry and economy – and that of the world.
The grey area stands in between. Nothing, especially in the rainbow nation, should be only black or white
JOHANNESBURG - South Africans marrying foreigners for financial benefit have been warned of possible legal ramifications. The comments were made by Deputy Minister of Home Affairs Njabulo Nzuza on the sidelines of a visit to Thembisa Hospital, where he, alongside other officials, welcomed babies born on Christmas. By law, a foreigner who weds a South African national and seeks permanent residence in the country is required to have been in a relationship with the individual for at least five years. A similar standard is held for life partners who, in conjunction with the prerequisite, are required to produce evidence of shared financial responsibilities. Nzuza said this criminal offence was an added burden to an already inundated Department of Home Affairs.`It`s not worth it. It`s criminal. It`s wrong. Don`t get yourself involved with those marriages of convenience, and if we do that, we will just keep the country running.`
The grapevine has it that dedicated teams within one or more of the ‘Big Four’ global accounting firms might be currently responsible in some shape or form for the processing of visa applications.
In late August, while promoting his department’s digital transformation, the new Minister of Home Affairs, Leon Schreiber, stated that “the permitting backlog … dates back a decade … [and] started out at over 306,000 unprocessed applications”.
The harsh reality of the visa backlog Schreiber found himself and his department having to contend with was far worse than anticipated even in previous detailed reports to the portfolio committee. Until as recently as April this year, the now-debunked Department of Home Affairs’ (DHA) predominant narrative surrounding the backlog was that it stood at 80,000 applications and was primarily a result of the lockdown and the pandemic.
I have already voiced our reservations and caution in response to Schreiber’s digitisation “one-stop” answer to solving the department’s long-standing capacity and training shortages. The departmental issues, in our view, need to be resolved by promoting long-term recruitment and upskilling strategies rather than to meet short-term goals and political aspirations.
While basic civic services, such as obtaining or replacing an ID, passport or certificate, will undoubtedly benefit from the proposed innovation, streamlining through digital automation of the processing of immigration-related applications carries multiple risks that may ultimately outweigh the benefits. These include unlawful and incorrect decisions, security risks, breach of personal data, etc.
#TeamHomeAffairs?
From his five-year digitisation strategy to outsourcing partnerships, it appears that the minister’s solutions tend to diverge from the department’s own human resources constraints. In his race to preserve the perception of service delivery, Schreiber has found himself having to contend with the persisting capacity shortage as the DHA is said to have “only 40% of the staff it requires to function optimally”, and has had to grapple with a lack of work ethics and, as he called it, “institutional vandalism”.
Apparently, certain officials within the DHA’s ranks remain reluctant to work overtime and embrace innovation and change.
Notwithstanding these challenges, the Minister confirmed that “a team from different departments within Home Affairs is working around the clock, in partnership with Business Unity South Africa and Deloitte, to clear the backlog”.
The grapevine has it that dedicated teams within one or more of the “Big Four” global accounting firms might be currently responsible in some shape or form for the processing of applications. These rumours leave us to wonder if these “partner teams” are responsible for the review of highly confidential personal documents included in applications, and for making recommendations on the outcomes to be issued – visas or rejections.
These partnerships that Schreiber implemented, we are told, allegedly included a few weeks’ “crash course” on South African immigration provided by the DHA to these external service providers.
A sceptic would say that the blind have been leading the blind … the #TeamHomeAffairs that Schreiber often praises on social media may well not be fully within Home Affairs after all. Should this be confirmed, an arrangement of this nature would not merely be unusual but also questionable.
An unprecedented agreement
Already in 2014 , the service agreement which the DHA entered into with VFS Global was unique and controversial. At the time, VFS Global formed part of the Kuoni Group, a publicly listed Swiss company with large holdings in travel and tourism providing services to a range of countries. Exorbitant government tenders were awarded over the years to VFS Global including, among others, the UK, Australia and Canada.
Today, VFS Global has agreements in place with 69 governments and operates in 153 countries with more than 3,400 visa processing centres globally and counting. All of these tenders and agreements relate to the processing of visas and are provided from outside the sovereign territory towards which these services are rendered.
Within the UAE, as a small deviation, VFS strictly deals with short-term (30–60 day) visa extensions.
In an era of rapidly growing international travel, many governments have contracted with outside parties, such as VFS, to handle their visa processes, as this has allowed them to manage the rising demand for visas. Travellers, in general, also ostensibly gain from visa outsourcing since it speeds up processing and enhances customer support while also increasing geographical accessibility.
However, the 2014 agreement made by the DHA in South Africa with VFS to date represents the only instance in which a sovereign government has delegated and outsourced within its own territory and within its own borders its public functions for these services.
That agreement alone should have been a warning sign of the department’s mismanagement and brewing crisis, and 10 years later stands as a sign of an incapable state.
Further aggravating the controversy, the 2014 agreement came at a high cost for visa and permit applicants in South Africa, as it sanctions the charge by VFS Global of a service fee (initially R1,350, now increased to R1,550 per application, waiver, appeal, permit, etc) to be paid over and above the fees charged by the DHA.
This said, it must be acknowledged and recognised that had it not been for VFS Global, the South African immigration system would have already collapsed completely a decade ago, with far worse damage than Schreiber is now being tasked to control.
Outsourcing patterns
Over the last decade, the DHA’s service provision relating to immigration services has increasingly relied on outsourced and delegated services. While in 2021 the Department of |International Relations and Cooperation (Dirco) downsized South African representation abroad by closing 10 of its missions, agreements made by the DHA with VFS have increased to currently cover 20 countries.
The South African exception, both in respect of the 2014 agreement with VFS and now with the reliance on external “partner teams” to deal with the backlog, is prima facie evidence that oftentimes public service employees lack the ability and resolution to be upskilled and meet international standards.
This is sadly ironic considering the predominantly labour-protective immigration regime South Africa has promoted over the years.
Rejection patterns
As we fast approach the end of 2024, and as widely publicised by the minister and the department, the progress on the backlog seems to be making giant leaps. The DHA has reportedly succeeded in zeroing a backlog of 247,500 ID applications in a few months, and has proudly reduced the visa backlog by 62% while confirming to be on track with the year-end goal.
That visa outcomes are suddenly being flushed out in high numbers is evident simply by visiting any VFS Global office where the waiting time for a simple collection has dramatically increased to three to four hours or even longer. These volumes have undoubtedly put a strain on VFS Global’s capacity and staff, and of course on applicants.
Of graver concern, however, is the combined negative impact that lies in the poor quality of decisions being rendered lately. In the past couple of weeks, our law firm has been inundated by inquiries from the public relating to the collection of unprecedented numbers of rejections on visa applications, many of which bear anomalous and erroneous reasons for the refusals.
Quality vs quantity
Issues with the quality of decisions are not a novelty of the DHA or the backlog clearing process. The lack of proper legal training combined with the necessary delegation of adjudicating functions within the DHA carries this consequence. Much of the same has been said in respect of the decisions rendered abroad on visa applications processed and adjudicated by Dirco at certain overseas South African missions.
Applicants have already been gravely prejudiced by the DHA’s inability to perform after the lockdown, often finding themselves displaced, disillusioned and despondent in a state of continued uncertainty. Most applicants have had no choice but to exercise patience, others have approached the courts simply to review and set aside the unreasonable delay experienced.
Litigation against the DHA has never been as frequent as over the past couple of years, at a hefty cost for both the applicants and South African taxpayers.
Schreiber has centred his role as minister on the pursuit of the restoration of dignity. However, signing off irrational and erroneous rejection notices serves no such purpose and only allows the DHA to numerically account for progress on the backlog as an achievement. Looming ahead will be another backlog, predominantly consisting of appeals, which will defeat any progress made in 2024.
Bearing the brunt remain the applicants, trapped in a timeless state of uncertainty and deprivation, having entered South Africa as if in Dante’s Inferno: “Abandon hope, all ye who enter here”
Mozambique Unrest | BMA bars trucks from going into Mozambique
JOHANNESBURG - Border Management Authority (BMA) Commissioner Dr Mike Masiapato, says it's not safe for trucks to go into Mozambique.
Monday's decision by the country's Constitutional Council confirming Frelimo, as the winner of the October polls has sparked more unrest.
Border Management Authority Commissioner Dr Mike Masiapato spoke to eNCA reporter Pule Letshwiti-Jones in the video
https://www.enca.com/top-stories/mozambique-unrest-bma-bars-trucks-going-mozambique