I am in a same-sex marriage, and Home Affairs has denied my application to change my surname to my spouse's. Is this legal?

News24 – 26-01-2022

 

I am in a same-sex marriage, and Home Affairs has denied my application to change my surname to my spouse's. Is this legal?

The short answer

Home Affairs is wrong, but it is complicated.

The whole question

"I am a South African citizen living in the USA. I got married (same-sex marriage) in 2016 and applied for a new passport reflecting my new name change (surname) on the passport in 2019.

I received confirmation from Home Affairs that they have now refused to change my name because they do not recognize same sex marriages and name changes are not allowed on the passport. Below is the correspondence from them:

"Please note that we have received verification of the status of your passport: Your passport application was received by DHA on the 12 July 2019.On the 16 August 2019 your application was moved to the Citizenship for verification of SA Citizenship. On the 25 October your application was moved to the Marriage Section to confirm your marital status. According to the DHA, with regards to same sex civil unions name changes are not permitted, thus all parties concerned will keep their last name. ie: Jason Roelof Saunders will remain Jason Roelof Saunders and not Turner. On the 04 November 2019 your passport was moved for capturing and processing and will take another 6-8 Months."

Is this allowed?

I feel that this is some sort of discrimination, as I have many women friends from South Africa who got married and changed their names to match their husbands with no issue. I would not care if it were not for my line of work. I am an airline pilot and am having many issues when travelling to different countries because my passport and green card documents all have mismatched names. It is now directly affecting my job." 

The long answer

Thank you for your email asking if Home Affairs can declare that you may not change your surname to your partner’s on your passport because "with regard to same sex civil unions, name changes are not permitted."

This is most certainly wrong: in South Africa both partners/spouses in a civil union partnership are allowed to choose what surnames they will be known by. Section 13 of the Civil Union Act explicitly gives spouses/partners this choice.

The Civil Union Act does not make any explicit provisions to recognise foreign same-sex unions, but under the common-law definition of marriage, a foreign same-sex marriage is recognised as a marriage in South African law.

"Couples who marry in terms of the Civil Union Act may choose whether their union is registered as a marriage or a civil partnership. In either case, the legal consequences are identical to those of a marriage under the Marriage Act, except for such changes as are required by the context. Any reference to marriage in any law, including the common law, is deemed to include a marriage or civil partnership in terms of the Civil Union Act; similarly, any reference to husband, wife or spouse in any law is deemed to include a reference to a spouse or civil partner in terms of the Civil Union Act." (Wikipedia).

But the problem is that there are contradictions between Section 26 (1) of the Births and Deaths Registration Act and the Civil Union Act: on the DHA website it states that "Passports are issued in accordance with your names as they appear in the National Population Register (NPR) at the time of your application. Any changes to your names must be applied for, finalised and recorded in the NPR before you submit your passport application."

It seems that it costs R375 to apply for a change of name to the NPR.

A Rhodes University thesis by LLB student Chris McConnechie notes that section 26(1) of the Births and Deaths Registration Act says that no individual may describe himself by any other name than the one recorded in the NPR without permission of the Director General of Home Affairs – except that women can change their surnames upon marriage without applying for permission.

In a marriage as opposed to a civil union, a man cannot change his surname without permission while a woman can; in a civil union both partners are able to change their surnames.

As you know, all discrimination on the basis of sexual orientation and against same sex couples is outlawed by Section 9 of the Constitution and by the Promotion of Equality and Prevention of Unfair Discrimination Act.

But given the difficulties, delays and frustrations routinely experienced by people when dealing with Home Affairs, it may be quicker and easier in the short term to apply to the Director General of Home Affairs for permission to change your surname, and then to re-apply for your passport

www.samigration.com

 

 

 

 

 

Why your phone and laptop can be seized at an international Australian airport - and there’s nothing you can do about it

 

7NEWS -  25/01/2022

An Australian man who says he was forced to hand over his phone to Border Force officers at the airport after returning to Sydney has labelled the experience as “traumatic”.

James and Mandy had returned to Sydney airport from a holiday in Fiji when James (who does not want to use his surname) says they were intercepted by a Border Force officer who asked the pair - who are Australian citizens - to step aside.

They were then taken to a separate room where they were required to surrender their mobile phones and passwords.

James says the officers informed them it was a random data security search and the pair were required to hand over their mobile devices or face the prospect of being arrested.

An Australian Border Force (ABF) spokesperson told 7NEWS.com.au that officers have the power to examine all goods at the border, including electronic documents, photos on mobile phones and other personal electronic devices.

Barrister and member of the Australian Lawyers Alliance Greg Barns says the current laws meant Australians were not well protected when returning home.

“The issue is because we don’t have proper privacy protections in Australia, we are not well protected and this can lead to an abuse of power by ABF officers,” he said.

Inside Australia’s borders, however, state and federal police are generally required to obtain a warrant to compel you to grant access to a device.

“In respect there are more limitations for them, but in a lot of cases ... they would need to have a warrant,” Mr Barns said.

James said his and Mandy’s phones were taken to a another room to be examined.

A Sydney couple have been left confused after their mobile phones were randomly seized and searched for over an hour upon their arrival into Australia.

He told 7NEWS.com.au they weren’t given any indication of why the search was being conducted nor how long it would take.

“They took our phones with them out of the room and away from us, so we had no idea what they were doing with them or what they were going through,” James said.

“In that moment, they had access to the most intimate details of our lives.

“I’ve got family photos, passwords, bank account details and emails dating back 15 years or so.

“We had no idea what our rights were as I’m sure a lot of Australians probably wouldn’t.”

James said it was the first time the pair had ever experienced that kind of interaction with law enforcement.

“Neither of us have ever had that kind of confrontation before with authorities and we just aren’t used to it so we didn’t know what our rights were or anything,” he said.

“So to anyone who’s not used to that kind of confrontation with authority, it can be quite traumatic.”

He added that even though they understood the officers were just doing their jobs, they would have appreciated an explanation.

“I feel as though they should have to have some strong evidential grounds to do that and to invade our privacy like that,” he said.

“And at the end they didn’t apologise for any of it or tell us anything about the process and what happened we were just told we were free to go home.”

Home affairs responds

“The ABF exercises these powers in order to protect the Australian community from harm and deliver upon its mission to protect Australia’s border and enable legitimate travel and trade,” they said.

They urged anyone with concerns to raise them with the ABF officer or to log onto the Department of Home Affairs website.

“If a passenger has any concerns about questioning or examination they should raise these with the officer or their supervisor at the time of questioning and can provide feedback on the Department of Home Affairs website.”

However, the spokesperson also warned if an individual refused to comply with a request for an examination of their electronic device, they may be referred for further law enforcement action.

Lawyer’s perspective

Barrister Greg Barns said ABF officers must have reason to download or copy any information from an individual’s device and must record their reason for doing so.

Not all documents on a device can be copied by an ABF officer either - they must be considered for relevance before they are downloaded.

Mr Barns said Australians had the right to compensation if any harm was done to their property.

“You can appeal for compensation, however, if the officers damage or lose any of your data or belongings,” he said.

www.samigtration.com

 

 

Zimbos In SA Bank On ConCourt Ruling Over Permits

 

25 January 2022 – Zimeye

By A Correspondent- A South African Constitutional Court ruling late last year could provide some reprieve for Zimbabweans battling possible deportation after the expiry of their special exemption permits last month.

Nearly 200 000 Zimbabweans living in South Africa on a Zimbabwe Exemption Permit (ZEP) have been given a 12-month grace period to regularise their papers or risk detention and deportation. This followed a cabinet resolution not to renew the permits when they expired last month.

The ConCourt ruling in a case of an Ethiopian national, Desta Abore, who was detained awaiting deportation, states that refugees and asylum seekers can apply for permits and stay in South Africa pending the outcome of their applications.

According to reports from South Africa, the ConCourt decision rescued Abore from unlawful detention and brought the much-needed clarity to the application of the new amendments to the Refugees Act in relation to asylum applications.

Various legal experts told the NewsDay Weekender that Zimbabweans in South Africa could take advantage of the ConCourt ruling to extend their stay in that country.

In an interview, a lawyer representing former special permit holders who are fighting for permanent residency in South Africa, Simba Chitando, hailed the ConCourt judgment.

“The judgment sets a good precedent in support of the rights of migrants generally, even though it does not specifically deal with the rights of ZEP holders. It speaks to the position of the courts, which appears positive for migrants in the republic,” he said

An attorney at Nonyane Inc in Pretoria, Thabang Nonyane, concurred, adding that the judgment gave some reprieve to Zimbabweans living in the neighbouring country.

“In simple terms, the implication of the judgment is that once a foreigner has declared his or her intention to apply for an asylum or refugee status, he or she must be given an opportunity to do so by means of being issued a temporary permit.

“The permit should be valid until the Department of Home Affairs has made a determination to the asylum or refugee application. Pending the determination by Department of Home Affairs, the foreigner may not be arrested,” Nonyane said.

Khulekani Moyo of Wits University Law School said: “Regulation 7 of the new regulations to the Refugees Act 130 of 1998 provides that a person must declare his or her intention to apply for asylum at a port of entry before entering the republic and must be issued with an asylum transit visa which is valid for five days.”

“An applicant for asylum must, in terms of Regulation 8, show good cause why he or she is not in possession of an asylum transit visa before he or she is allowed to make an application for asylum – good cause which is required to be shown refers to the reasons that must be given on why the applicant for asylum does not have an asylum transit visa,” he said.

Moyo, however, said Regulation 7 did not assist asylum seekers who did not declare such an intention at a port of entry and before entering South Africa.

“It also does not assist asylum seekers who do not enter the Republic through an official border post. Many do not, given their precarious position as illegal foreigners fleeing their home countries due to a well-founded fear of persecution,” he said.

Abore reportedly entered South Africa illegally through Zimbabwe in December 2019, telling the court that he escaped persecution in his home country given his involvement in opposition politics.

He was arrested in July 2020 in Eshowe, northern KwaZulu-Natal, and was convicted and sentenced by the local magistrate’s court to 50 days imprisonment with an option to pay a fine of R1 500 for entering the country unlawfully. Despite paying the fine, Abore served his prison sentence and his detention, which was supposed to end on August 25 2020, continued beyond that date staying in prison for more than a year.

In February last year, the Department of Home Affairs applied for a warrant extending Abore’s detention for purposes of deporting him. Aggrieved by this, Abore approached the High Court to stay his deportation.-newsday

www.samigration.com

Action SA Unravel a Warehouse where Fake Permits, Visas, Passports are Produced in Palmridge.

Opera News = 25-01-2021

ActionSA is one of the group engaging in this operation aimed at stopping illegal businesses owned by foreigners from operating in South Africa.

In one of the operation, ActionSA visited a warehouse situated in Palmridge where immigrants produce and sell fake South African documents.

Some of the documents found in the custody of the business owners include Visas, different types of permit documents, business operation permit, municipality permits, birth certificates etc.

This will definitely serve as a deterrent to individuals who undermine our local laws and also ensure that documentation fraud is reduced to its barest minimum.

Local authorities should augment this operation so that rule of law will be restored in our communities.

According to a statement released by ActionSA via its official Twitter handle:

"One such business is a warehouse in Palmridge that has been illegally producing documents such as passports, visa/permit documents, business operation permits and Municipal permits!

The matter is receiving special attention from the MMC, Councillor and City officials."

.www.samigration.com

Minister Motsoaledi gets tough on work permits

Opera Newss -  21/01/2022

Home Affairs minister Aaron Motsoaledi is leaving no stones unturned in his quest for rooting out corruption. 

Vukani Kusile Foundation’s Solly Masilela said: “It will take time for the clean-up to be a success because corruption and maladministration of the immigration laws and regulations is too entrenched and linked to other departments, such as the department of international relations and cooperation. It is a step in the right direction though.”

Masilela added that the SA immigration system had taken such a knock that SA-issued documents were not worth the paper they were printed on.

Motsoaledi has received the report of the task team up in March to review some permits in a raft of categories. These include permanent residence permits and citizenship by naturalisation issued since 2004.

His office said he would make an announcement soon.

The need to review the permits was triggered by a trend emerging from the outcomes of cases involving high-profile people investigated by the department’s corruption unit. In February the minister revealed that Enlightened Christian Gathering leader Shepherd Bushiri and his wife, Mary, had been in South Africa illegally.

The unit has established that 66% of cases involved immigration permitting.

Motsoaledi has said that in November last year, during a top-level investigation, he was shocked when 14 members of the permitting section signed a petition demanding that the corruption unit stop investigating their errors.

The minister said this admission strengthened his resolve to have a more transparent permit issuing regime.

Other permits on Motsoaledi’s radar are corporate visas, business visas, professional/critical skills visas, retired person’s visas and study visas.

Last week home, a home affairs official, Democratic Republic of the Congo national Mbemba Pierre Mahinga, was dealt a blow when the Supreme Court of Appeal dismissed his application to stop the department stripping him of his SA citizenship

www.samigration.com