Supreme Court of Appeal gives eight Somalis seeking asylum fresh hope

Pretoria News – 20 October  2021

Pretoria - Refugees are mothers, fathers, sisters, brothers, children, with the same hopes and ambitions as us – except that a twist of fate has bound their lives to a global refugee crisis on an unprecedented scale.

This is according to renowned author Khaled Hosseini, who was quoted by the Supreme Court of Appeal (SCA) in its judgment in which it came to the aid of the Somali Association of South Africa and eight of its members, who are desperately trying to obtain refugee status.

The eight Somalis earlier failed in their bid before Home Affairs to obtain refugee status despite claims that they will face persecution and perhaps even death if they were sent back to their country of birth.

They also failed in their Gauteng High Court, Pretoria, bid, where Judge President Dunstan Mlambo had earlier turned down their application to be awarded refugee status.

Five appeal court judges accepted that there was a legitimate State interest and concern to ensure that refugee status was granted only to those who qualified, and to disqualify unfounded applications.

In the case of persons who came to the country to seek asylum and those who might ultimately qualify for refugee status, the SCA also quoted Pope Francis. “Migrants and refugees are not pawns on the chessboard of humanity. They are children, women and men who leave or who are forced to leave their homes for various reasons, who share a legitimate desire for knowing and having, but above all for being more.”

Judge Mahomed Navsa, who wrote the SCA judgment, commented that international TV news channels and other media regularly featured images of refugee crises unfolding in many parts of the world with the attendant human cost.

“The relatively recent stark image of the body of a 3-year-old toddler on a Turkish beach after fleeing from war in Syria springs to mind. The scepticism, to which State authorities and decision-makers are sometimes prone in relation to applications for refugee status, should be tempered by what is set out above (in the quotes).”

The judge added that the prescripts of domestic legislation also played a role.

The SCA held that the decisions of the courts, Constitution, and international practice as reflected in the UN High Commissioner for Refugees handbook, all dictating that an asylum seeker should be assisted to present such a full picture of their circumstances as possible.

The court found that the Home Affairs’ refugees board did not totally consider the eight Somalis’ circumstances before it rejected their applications.

Each of the applicants told the court why they feared returning to Somalia.

The only woman in the group said her home was hit by a grenade during 2006, killing two of her eight children and leaving her with severe injuries. After she was discharged from hospital, she decided to leave Mogadishu and moved south, near the town of Dhobley, where there were also ongoing battles.

She was subsequently injured in an explosion in Dhobley.

In 2008, she moved once again to a camp of internally displaced persons.

The combination of civil war, the constant danger of injury and death and severe deprivation compelled her and her two daughters to leave Somalia. They arrived in South Africa in May 2010, she said.

The Supreme Court, meanwhile, ordered that the Refugee Appeal Board had to reconsider their refugee status by the latest on Monday.

www.samigration.com

Motsoaledi comes down hard on Home Affairs staff telling public 'they've served more than enough for the day'

Cape times News 20 October 2021

Cape Town - Home Minister Aaron Motsoaledi has slammed the conduct of staff who cut queues and send people home because there were already “more than enough people to serve for the day”.

Recently, frustrated residents protested outside the Mitchells Plain Home Affairs office after they were told the office could only assist 100 people a day.

Community activist Richard Williams said people were furious they could not get assistance after arriving and queueing at the office from as early as 4am.

“What happened was that they only helped 100 people at a time. And the people were very unsatisfied because they have to pay twice now for travelling from their homes to the offices, and when they reach 100, they say they are done, and people now have to return home,” he said.

Motsoaledi said on Monday it was a wrong practice of sending people home at 7am.

“We want to emphasise that there is no government policy that provides for that, and members of the public should not be treated like that. Where it happens, members of the public must challenge it, take down the name of the official who wants to send them home and raise it with the office manager,” said Motsoaledi.

He made the comments when the department announced that the high demand for services at Home Affairs offices has the approval of a temporary extension of operating times by two and a half hours at front offices from 8am to 5.30pm from on Monday.

The temporary extension is meant to resolve congestion at the identified offices, which increased over the last two weeks, and this intervention will be supported by the 100% return of staff in all offices, said the department.

Out of the 412 Home Affairs offices, 197 were modernised Live Capture offices which can process Smart ID Cards and passports. These are the offices that will operate for extended hours because that is where the high demand is being experienced.

“The Deputy Minister and I have been receiving a lot of complaints from irate citizens across the country. Most of these people have complained about a bad practice by some Home Affairs offices, where queues are cut and people sent home presumably because there are already more than enough people to serve for the day,” said Motsoaledi.

He said the only people who will be sent home are those arriving after 5.30pm.

“Everybody who arrives before 17:30 should be served and not turned away. Home Affairs exists to deliver enabling documents to people. We can’t turn away people who are looking for public services if they arrive within the stipulated hours of work,” said Motsoaledi.

In the unfortunate event of the system being off-line, the department said it would ensure quick intervention.

“We appeal to members of the public to understand because this is something beyond our control. Senior managers will visit offices unannounced to monitor operations on the ground,” said the department.

www.samigration.com

Citizenship case reveals chaos at Home Affairs as it battles 8,000 lawsuits

Daily Maverick  19 October 2021 

A case brought before court on behalf of a group of stateless people, claiming that they lost their South African citizenship by descent when the law was changed, has revealed absolute chaos at the Department of Home Affairs, which had to send a heavyweight legal team to the Constitutional Court on 13 February 2020 to plea for permission to have another chance to overturn a court order they claim will open the floodgates to millions of people who want citizenship to access grants. 

From being too busy to blaming an intern to citing workloads and wrong advice being given, the Department of Home Affairs filled pages with explanations, and apologies in papers filed before the Constitutional Court explaining why they didn’t file papers in two years, in a case they now claim will “open the floodgates”, for people wishing to gain South African citizenship to access government grants.

On Thursday, 13 February 2020, the Constitutional Court heard an application by Lawyers for Human Rights to confirm an order by the Pretoria High Court that parts of the South African Citizen Act were unconstitutional as it fails to recognise citizenship acquired by descent in terms of the previous legislation.

The organisation represents a group of people, all born outside of South Africa to a South African parent. They all claim to have been deprived of their citizenship when the legislation was changed and that this left them stateless as their births were not registered in time – but the law afforded citizenship to them because one of their parents was South African.

The new law took this citizenship away because their births were not registered before 2013 when the law changed – as the new law, as described by attorney Liesl Muller in papers before court, put them in an unintentional “no man’s land”.

The four applicants are Yamikani Vusi Chisuse, 30, Martin Ambrose Hoffman, 49, a 12-year old child and Amanda Tilma, 50. The department denies in papers before court that they will qualify for citizenship even if their citizenship by descent is reinstated by a court order, saying that there are factual discrepancies in their versions.

Lawyers representing the group first approached the Pretoria High Court in September 2016. The matter was set down for a hearing on May 2017, but home affairs failed to file an affidavit explaining their position. They did indicate that the matter will be opposed. The matter was postponed and the department was ordered to file their papers within 20 days. This wasn’t done.

Two years went by. When Lawyers for Human Rights finally set the matter down for hearing, the department asked the court for a postponement to file their affidavit. This was refused and the court heard the matter unopposed. This led to parts of the South African Citizen Act being declared unconstitutional and the court ordering that four of the applicants be given citizenship.

In an affidavit explaining their shocking handling of the matter filed before the Constitutional Court, the acting director-general for home affairs, Thulani Mavuso apologised to the court for their handling of the matter, but asked the court to overturn the order of the Pretoria High Court to send the matter back to hear evidence.

Mavuso, the acting director-general of the department, said they are now confronted by between 8,000 and 10,000 cases in courts all over the country and receive 150 new cases a week. He said their directorate of litigation only has five members and each needs to handle 1,200 cases. “This workload makes it practically impossible to perform the services with the efficiency required. This is due to budgetary constraints in government,” he said.

He said he didn’t even know about the case before the Pretoria High Court.

“I accept that the matter has not been dealt with properly by officials of the department. On that score, the conduct of the officials failed not only this court, but the applicants and society at large. I accept that the state respondents and the state attorney handled the matter in the most inefficient and ineffective manner. This conduct undermines the legitimacy of both the judiciary and the state.”

He said they accepted that the rights of the applicants in the current case were “openly violated”, by the department and showed disdain for the law. “I concede this is unacceptable.”

He said for the court to allow the applicants to claim citizenship by descent will be “an insult to the Black South Africans and architects of the Constitution of the Republic of South Africa”, and have a disastrous effect on the country’s stability.

“The Citizenship Amendment Act seeks to put a final nail on the racist, sexist and discriminatory 1949 Act and to correct the legislative anomalies of the 1995 Act.  The surviving provision of the 1949 Act, which allowed children of foreigners to claim citizenship of South Africa under the 1949 Act, had disastrous consequences for the stable and democratic citizenship regime in South Africa. Moreover, the relevant provision of the 1995 Act, which entrenched the 1949 Act, opened the floodgates for the foreigners to claim citizenship in order to access the privileges and benefits flowing therefrom. It is estimated that there are approximately 17-million grant beneficiaries as opposed to 15.5-million taxpayers in South Africa,” he added.

He said allowing foreign persons who desire to live and work in South Africa to claim citizenship by descent may lead to uncontrolled fraudulent citizenship. 

“This is precisely the mischief the legislature intended to address when it amended the 1995 Citizenship Act. South Africa is today a great place to live in and many people in the world aspire to live, work, or to be the citizens of South Africa.  As a result, many foreign nationals come to South Africa and stay in the country illegally. No one can account for every undocumented migrant,” he added. “The department has no idea how many illegal immigrants are in South Africa.”

The applicants before court were born to South African parents in Malawi, Zimbabwe and Ghana before legislation changed, but their births were not registered. 

According to Mavuso, they originally only realised that there was a case about this issue when one of their officials raised a concern over a cost order made against the department. He said the notice of the hearing was served on an intern and nothing was done about it. 

He admitted that they received correspondence warning that the matter will be set down on the unopposed role unless an affidavit is filed. He said a few months after they defaulted on filing an affidavit, the department’s junior counsel and the state attorney were called into the deputy judge president’s chambers and “severely reprimanded”. He said they were ordered to file an affidavit within a month.

Mavuso explained that as part of their internal procedures, they still had to interview the applicants as part of their internal process, but officials couldn’t do it in time. The applicants were then asked to come to home affairs to have their births registered and the matter should be removed from the role. This was erroneous advice he said, but nothing happened in any case and their affidavit was also not filed in accordance with the court’s directive.

He said when the order declaring parts of the law unconstitutional was served, the official dealing with the matter was on leave. She only returned 15 days later. He said the director of litigation also resigned six months later. “This had a negative impact on most of the matters in which he was involved.”

“The attorney of record is currently handling almost 700 pending cases.  This, however, cannot be an excuse for the conduct of the state attorney and officials of the DHA in this matter.”

In papers before the Constitutional Court, Advocate Isabel Goodman, acting for the applicants, explained that the case dealt with citizenship by descent.

She added that the applicants acquired a right to citizenship by virtue of their parenthood, but because of changes between the various statutes, they have been deprived of their right and ability to acquire citizenship, and the problem was that the law did not preserve citizenship acquired by descent under predecessor legislation. “The section only saves citizenship acquired by birth. Those who acquired citizenship by parenthood under predecessor legislation are, overnight, no longer citizens.”

She argued that the department could not offer any real justification for these infringements and added that, in fact, they didn’t even bother to file an affidavit despite a two-year delay and an order directing it to do so. 

A four-person legal team led by advocate Seth Nthai SC argued on behalf of the department that none of the legislation conferred an automatic right to citizenship. He added that the law does not apply retrospectively. He said if the court believed the laws to be unconstitutional, the law should be sent back to Parliament for an amendment in line with the current policy considerations. 

www.samigration.com

Children born abroad with one South African parent have right to citizenship - ConCourt

GroundUp – 19 October 2021

• 
  
• The Constitutional Court finalised a seven-year legal battle fought by Lawyers for Human Rights on behalf of four people born to SA parents outside the country.
• The case centred on the Citizenship Amendment Act of 2010 and how it applied to people born outside of South Africa before January 2013.
• Justice Sisi Khampepe slammed the Department of Home Affairs, describing its conduct in the matter as "brazenly incompetent".

Children born in other countries are entitled to South African citizenship as long as one parent is South African, the Constitutional Court has ruled.

A seven-year legal battle is finally over and the court has ruled that the Department of Home Affairs must immediately recognise as citizens Yamika Chisuse, born in 1989 in Malawi; Martin Ambrose, born in 1970 in Zimbabwe; Amanda Tilma, born in 1969 in Zimbabwe; and Emma Dullart, born in 2006 in Accra.

The ruling by the court has cleared up any confusion about the country's citizenship by descent laws, which were interpreted by Home Affairs to mean that nobody born in other countries after 2013 qualified for citizenship, irrespective of whether their parents were South Africans, GroundUp reported.

Represented by Lawyers for Human Rights, the applicants started negotiations with the department in 2013 and first went to court in 2016.

The department failed to file opposing papers and it was finally set down to be heard in May 2019.

The department asked for a further postponement, but this was refused and the matter was heard unopposed.

The applicants claimed that the Citizenship Amendment Act of 2010 (which came into effect in 2013) was not being applied retrospectively, resulting in "wholesale deprivation of citizenship rights overnight".

They said the provisions of the Act did not provide for anyone born outside of South Africa to a South African parent before January 2013 to obtain citizenship.

'Risks of statelessness'

The Gauteng High Court in Pretoria ruled in their favour, declaring sections of the act unconstitutional.

But the Constitutional Court has now declined to ratify this, saying that the act was misinterpreted.

In a unanimous ruling handed down this week, Judge Sisi Khampepe said the issue surrounded the wording in the act which stated "any person who is born".

This was interpreted to mean only those born after 2013.

The judge said the only reasonable and constitutional compliant construction of the text was that it included all persons, born yesterday, today and tomorrow.

"An interpretation that favours a prospective-only operation in this instance effectively abolishes existing rights.

"Moreover, a finding that the section only applies prospectively would have the effect of excluding not only the vast majority of those who had acquired citizenship by descent, but also those who, like the applicants in this matter, are excluded from the ambit of the section merely by the date of their birth," said Khampepe.

Khampepe said: 

This interpretation would also expose some individuals to the risks of statelessness and it would be contrary to the spirit and purpose of the legislation, which seeks to widen the pathways to South African citizenship rather than narrow them.

'Brazenly incompetent'

The judge labelled the department's conduct "brazenly incompetent". While it had belatedly, before the Constitutional Court, conceded to an interpretation of the act that would recognise the applicants as citizens, it had continued to oppose the application on a "factual basis".

"The ordinary rule is that costs follow the results and the applicants have been unsuccessful in confirming the order of invalidity.

"But clearly this case encompassed more than that – it was about vindicating the citizenship rights of the applicants who have been dragged from the proverbial pillar to post by the government's intransigence, indifference and inefficiency.

"The applicants have been successful in vindicating these rights and are entitled to their costs for the significant and prolonged litigation.

"The documents must be issued as soon as possible. They have already suffered greatly by the dilatory conduct of the government and there is no reason why they should continue to be at their mercy."

Liesl Muller of Lawyers for Human Rights said the case was about one simple thing – dignity.

"The application was opposed to the bitter end, this despite two of the applicants providing DNA evidence of their link to a South African parent and two others having government-issued proof of their links.

"Our clients expressed overwhelming relief … It may have been a seven-year legal battle; for them it has been a life-long struggle."

www.samigration.com

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