Refugees who arrived after lockdown have no way to apply for asylum

27 October 2021 – Groundup -

Asylum application backlog set to grow, with Refugee Reception Offices closed since the start of the Covid-19 pandemic

A Burundian asylum seeker shows his documentation which expired on paper a year ago. He has been in South Africa since 2009. He says he is struggling to renew his documents online.

Refugees who arrived in South Africa after March 2020 have had no way to apply for asylum status.

• Accumulating new applications will put further pressure on attempts to clear an already huge backlog of asylum claims.

• A UNHCR-funded joint project with Home Affairs to clear the backlog does not appear to be stopping the build-up of a new backlog.

• The immigration system is also taking strain trying to process online renewals for people whose refugee status expired during the lockdown.

The closure of Refugee Reception Offices (RRO) since the Covid-19 lockdown last year has left asylum seekers vulnerable to arrest and deportation. The offices remain closed for new asylum applications and in-person renewal of permits that expired prior to March 2020.

“Many newcomer asylum seekers are therefore at risk of arrest, detention, deportation and are struggling to access basic services due to their lack of documentation,” said Attorney Jessica Lawrence, of Lawyers for Human Rights (LHR).

Lawrence said that during a recent meeting, a Home Affairs official said that newcomer asylum seekers should all have been issued with an asylum transit visa at the border, which would normally be extended by an immigration officer later.

“Asylum transit visas are only valid for five days. Though he did not say this, it was clear that he therefore deemed this as appropriate documentation for newcomer asylum seekers pending the re-opening of the RROs,” she said.

GroundUp was unable to get clarification from Home Affairs on asylum transit visas, when its RROs will reopen, and when it will start assisting new asylum seekers.

According to a 30 September circular sent to refugee organisations by the UN Refugee Agency South Africa Multi-country Office (SAMCO), Home Affairs has resumed permanent residence permit appeal applications from 1 October, and it will start processing permanent residence permit applications only from 1 January 2022.

It is unclear where this leaves refugees who arrived after March 2020.

Victor Chikalogwe of People Against Suffering, Oppression and Poverty (PASSOP) said thousands of people have arrived in the country since March 2020.

He said PASSOP has assisted about 200 newcomers to date. The organisation has been issuing “newcomer letters” since the closure of the Cape Town reception office in 2012.

He said the letter could be presented to law enforcement and immigration officers and basic service providers while the newcomer was raising money to travel to Pretoria, Durban or Musina to apply for asylum papers when these offices opened. “We thought newcomer numbers would decrease because of the pandemic but people are still coming,” he said.

Documented asylum seekers and refugees also at risk

All refugee permits that expired on or after the national state of disaster was declared in March 2020 are considered valid under a blanket extension until 31 December 2021, according to SAMCO. But many institutions, from banks to schools, do not seem to accept this when presented with expired documents.

Home Affairs activated an Online Renewal System in April 2021. By 8 September, it had extended 24,333 Section 24 (refugee status) and 69,185 Section 22 (asylum seeker permits), the department said in a statement.

“The extension applies to people who applied for waivers and holders of asylum seeker visas/permits or refugee status. Holders of such visas are permitted to remain in the country under the conditions of their visas until the expiry of their applicable extension. Those wishing to be repatriated to their countries within this period can depart without being declared an undesirable person,” said Home Affairs.

The extension, however, does not apply to people who entered the country from 15 March 2021. The normal validity period of visas of people admitted into the country from 15 March 2021 applies,” said Home Affairs.

Chikalogwe said PASSOP has helped 75 people in September who never got responses after submitting their documents online for renewal. “The number of people seeking online renewal help is increasing. Last week, I served three people within a period of four hours.”

A volunteer at PASSOP, who asked not to be named, said he submitted his documents in June for online renewal and is still awaiting feedback. When he tried to resend his documents in July he received an email from the Port Elizabeth office saying, “Kindly refrain from sending multiple requests. The office will attend to your request immediately when it is open. It is currently closed due to Covid alert level 4.”

Huge backlog and growing

The non-processing of any new refugee applications since March 2020 could have serious implications for South Africa’s refugee response.

PASSOP and LHR are sceptical that Home Affairs will be able to clear the already massive backlog in South Africa’s asylum system from before the pandemic.

In March, Home Affairs, with US$9.6 million in assistance from the United Nations High Commissioner for Refugees (UNHCR) launched the asylum backlog project to clear in four years what was going to take 70 years (at the department’s pace) to process.

Sarah-Jane Savage, from UNHCR, said the backlog clearance project started on 1 April. The current phase, the first, involved recruiting and training 37 new members for the appeal authority to add to Home Affairs’ existing three officers. The appeals of 153,391 people need to be heard.

It is therefore too soon to tell if the goal of clearing the backlog by 2024 will be achieved. The project was also meant to prevent another backlog building up in the meantime. It appears this is not happening.

The quality of decision-making on asylum cases by Home Affairs “is resulting in more people actually joining the backlog”, says the manager for LHR’s Refugee and Migrant Rights Programme, Sharon Ekambaram.

The LHR says it has seen an increase in rejections of people from Ethiopia and the DRC. Individual assessments appear not to be done. LHR is seeing Refugee Reception Officers simply duplicating the reasons they give for rejecting one person’s asylum claim on different individuals’ applications.

Hlengiwe Mtshatsha, attorney at LHR, said the backlog is building up again because asylum seekers are referred back to be re-interviewed every time the High Court on judicial review overturns a decision on their status.

Mtshatsha said that they have noticed that people who applied for permanent residency will get a notice of intention to withdraw their refugee status or in some cases a withdrawal notice. They have 30 days to appeal. After that, they lose their refugee status and are classified as “illegal foreigners”, and will be notified to leave South Africa within 14 days.

Chikalogwe said appeals against the withdrawal of refugee status were also piling up.

GroundUp has tried numerous times since 16 September to get clarity from Home Affairs on a number of issues addressed in this article, but to date no clarification has been forthcoming from the department.

www.samigration.com

 

How can a mother with an expired visa register her children?

Groundup – 27 October 2021

The short answer 

There are a few possible options, but the best route may be to get legal help. 

The whole question

My girlfriend is from Zimbabwe. Her visa has expired but her passport is still valid. She and her children (aged three and five) have been with me at my home for the last two years. Both children were born in South Africa but, for whatever reason, they were never issued with any registration papers - only the hospital card. We urgently need birth certificates or ID numbers for the children as the five-year-old needs to enrol in school. Currently they are both attending a registered creche that does not require any documents.

I have been in South Africa since 1984 and am a permanent resident with an ID number. I am prepared, with pleasure, to have the children under my name as we are living as a loving family. My girlfriend is worried about making noise at Home Affairs because of her visa status, even though we know that the Constitution guarantees an identification to every child born here regardless of the parents' race, nationality or status. 

Despite numerous attempts with Home Affairs, we have been unsuccessful. After queuing for four hours every time, we get mixed messages about what we need to do. The bribing option has been offered to us but we are law-abiding people and want to do this legally. 

The long answer

Firstly, as the children were not registered within thirty days of birth, as is required by law, you would need to apply for late registration of birth. If it is after 1 year but before 15 years, you would need to give Home Affairs the following documents:

• A completed Form B1-24/1, together with written reasons why the birth wasn’t notified, and as many as possible of the following documents to confirm the child’s identity as are relevant, given their age:

1. A certificate from the hospital or maternity home where the child was born. The certificate must be signed by the person in charge, and contain the institution's official stamp;

2. Official confirmation of the child's personal details, extracted from the school register of the first school attended by the child. The confirmation must be on the school's official letterhead, be signed by the principal, and contain the school's official stamp. (This could refer also to the creche they presently attend.);

3. The child's baptismal certificate – if relevant;

4. Sworn affidavits by the parents;

5. A clinic card.

There was a great constitutional victory for unmarried fathers on 22 September 2021, when the Constitutional Court declared Section 10 of the Births and Death Registration Act (BDRA) unconstitutional and ordered it to be deleted entirely from the BDRA. It was found to be unconstitutional because it did not allow unmarried fathers to register their children’s births in their name when the mother could not do so or was unwilling to do so, or when the mother could not be present. The judgment specifically mentioned the problem of undocumented mothers “…who live and give birth to children in South Africa and are unable to register the births of these children. Third, another difficulty arises as a result of the requirement that parents, who are non-South African citizens, must produce a certified copy of a valid passport or visa.”

All of the above left children without birth certificates.

The Centre for Child Law, which took the case to the Constitutional Court and was represented by Lawyers for Human Rights, said that children are vulnerable members of society who were even more vulnerable when they don't have valid birth certificates because, not only could they be excluded from education, social assistance and health care but, crucially, could be excluded from access to their nationality and become stateless.

As you rightly said in your email, the Constitution guarantees the right of every child born here to an identity, and the 2021 court judgment means that this right must now be realised. The Constitutional Court found that it was not justified to distinguish between children born to married parents and children born to unmarried parents when it came to deciding what surname could be given to a child. Section 10 penalised children born to unmarried parents and was thus unconstitutional. Unmarried fathers will now be able to register their children under their surname, in the absence of the mother or without her consent.

But although this was a crucial victory for children and unmarried fathers, it will not solve your problem with Home Affairs as you are not the children’s biological father.

Given that the visa of your Zimbabwean girlfriend and mother of the children has expired, she obviously does not wish to expose herself to possible deportation by going to Home Affairs to do the late registration of birth for the children. It would seem that your choices are either to sort out her visa with Home Affairs, which may well be a difficult and lengthy process involving your girlfriend returning to Zimbabwe and re-applying for a visa from there, or to legalise your own relationship with the children. This could be by adopting them.

Adoption of South African children is done in terms of the Children’s Act, 2005 (Act 38 of 2005) and is administered by the Department of Social Development, while the notice of adoption must be recorded by Home Affairs in the birth registration of the children.

Under the Children’s Act, written consent to the adoption must be given by the parent or parents or legal guardian of the children. This consent (Form 61) must be signed in the presence of the presiding officer of the Children’s Court who will then attest to the signature. This written consent can be withdrawn by the person giving it within 60 days if they change their mind.

Alternately, if you were to marry your girlfriend to legalise your relationship with the children, the following documents would be required by Home Affairs to marry you, according to their website:

"On the day of the marriage a couple must present the following documents to the person officiating at the wedding:

• Identity documents (for each person getting married);

• If a foreign national is marrying a South African citizen, they should both present their valid passports as well as a completed BI-31 Form (Declaration for the Purpose of Marriage, Letter of no impediment);

• If any of the persons getting married are divorced, then the final decree of divorce should be furnished;

• If any of the persons getting married are widowed, the deceased spouse’s death certificate must be submitted.

Because these are all weighty matters, perhaps you should approach an organisation like Lawyers for Human Rights to advise on your best options, given their extensive experience in dealing with Home Affairs. They have a special statelessness unit in Johannesburg.

www.samigration.com

Visitors Visa

The maximum duration for this Visa is 3 months. If a longer stay is required the applicant must apply in advance abroad or he can extend the visitor’s Visa locally, confirming the purpose of stay.

A valid return air / bus ticket, proof of sufficient financial means, the application fee andmust be accompany an application for extension. Pease note that a visitor’s Visa can only be extended once for a maximum of 3 months.

Please be aware that all extensions and changes need to be applied for 30 days before expiry of the current Visa. Missing the cut-off date without demonstration of good cause (e.g. illness, accident) will mean that you have to leave South Africa.

Countries exempt from South African visas:

The exemptions pertain to ordinary, diplomatic and official passport holders. Official visits (on invitation of the South African Government) and accreditation for holders of diplomatic and official passport holders are not dealt with here.

Visas are not required by citizens of the following countries for the periods and subject to the conditions indicated:

Holders of South African passports, travel documents and documents for travel purposes.

Holders of passports of The United Kingdom of Great Britain and Northern Ireland including the British Islands Bailiwick of Guernsey and Jersey, Isle of Mann and Virgin Islands as well as the Republic of Ireland are totally exempt from South African visa control and thus do not require visas for any purpose regulated by visas.

Please Note:

Angola: Bona fide holiday and business visits not exceeding 30 days and transits
Antigua and Barbuda: Bona fide holiday and business visits not exceeding 30 days and transits
Argentina: Bona fide holiday and business visits not exceeding 90 days and transits
Australia: Bona fide holiday & business visits only (period unspecified) and transits
Austria: Bona fide holiday & business visits only (period unspecified) and transits

Barbados: Bona fide holiday and business visits not exceeding 30 days and transits
Belgium: Bona fide holiday & business visits only (period unspecified) and transits
Belize: Bona fide holiday and business visits not exceeding 30 days and transits
Benin: Bona fide holiday and business visits not exceeding 30 days and transits
Bolivia: Bona fide holiday and business visits not exceeding 30 days and transits
Botswana: Bona fide holiday and business visits not exceeding 30 days and transits
Brazil: Bona fide holiday and business visits not exceeding 90 days and transits

Canada: Bona fide holiday & business visits only (period unspecified) and transits
Cape Verde: Bona fide holiday and business visits not exceeding 30 days and transits
Chile: Bona fide holiday and business visits not exceeding 90 days and transits
Costa Rica: Bona fide holiday and business visits not exceeding 30 days and transits
Cyprus: Bona fide holiday and business visits not exceeding 30 days and transits. Diplomatic and official passport holders visiting the RSA for holiday purposes are exempt for 90 days.
Czech Republic: Holders of diplomatic and official passports for holiday visits not exceeding 90 days and transits

Denmark: Bona fide holiday and business visits only (period unspecified) and transits

Ecuador: Bona fide holiday and business visits not exceeding 90 days and transits
Egypt: Holders of diplomatic and official passports for holiday visits not exceeding 30 days and transits

Finland: Bona fide holiday & business visits only (period unspecified) and transits
France: Bona fide holiday & business visits only (period unspecified) and transits

Gabon: Bona fide holiday & business visits not exceeding 30 days and transits
Germany: Bona fide holiday & business visits only (period unspecified) and transits
Greece: Bona fide holiday & business visits only (period unspecified) and transits
Guyana: Bona fide holiday and business visits not exceeding 30 days and transits

Hong Kong: Bona fide holiday and business visits not exceeding 30 days and transits This exemption is only with regard to holders of Hong Kong British National - Overseas (BNO) passports, Hong Kong Special Administrative Region (HKSAR) passports and Hong Kong Certificates of Identity.
Hungary: Bona fide holiday and business visits not exceeding 30 days and transits Diplomatic and official passport holders visiting the RSA for holiday purposes are exempt for 120 days.

Iceland: Bona fide holiday & business visits only (period unspecified) and transits
Israel: Bona fide holiday and business visits not exceeding 90 days and transits
Italy: Bona fide holiday & business visits only (period unspecified) and transits

Jamaica: Bona fide holiday and business visits not exceeding 90 days and transits
Japan: Bona fide holiday & business visits only (period unspecified) and transits
Jordan: Bona fide holiday and business visits not exceeding 30 days and transits

Lesotho: Bona fide holiday and business visits not exceeding 30 days and transits
Liechtenstein: Bona fide holiday & business visits only (period unspecified) and transits
Luxemburg: Bona fide holiday & business visits only (period unspecified) and transits

Macau: Bona fide holiday and business visits not exceeding 30 days and transits This exemption is only with regard to holders of Macau Special Administrative Region passports (MSAR).
Malaysia: Bona fide holiday and business visits not exceeding 30 days and transits
Maldives: Bona fide holiday and business visits not exceeding 30 days and transits
Malta: Bona fide holiday and business visits not exceeding 90 days and transits Malta: Holders of diplomatic and official passports for holiday visits not exceeding 90 days and transits
Mauritius: Bona fide holiday and business visits not exceeding 30 days and transits
Mexico: Bona fide holiday and business visits not exceeding 30 days and transits
Morocco: Holders of diplomatic and official passports for holiday visits not exceeding 30 days and transits

Namibia: Bona fide holiday and business visits not exceeding 30 days and transits
Netherlands (Kingdom of the): Bona fide holiday and business visits only (period unspecified) and transits
New Zealand: Bona fide holiday & business visits only (period unspecified) and transits
Norway: Bona fide holiday & business visits only (period unspecified) and transits

Paraguay: Bona fide holiday and business visits not exceeding 90 days and transits
Peru: Bona fide holiday and business visits not exceeding 30 days and transits
Poland: Holders of diplomatic and official passports for holiday visits not exceeding 90 days and transits
Portugal: Bona fide holiday & business visits only (period unspecified) and transits

Romania: Holders of diplomatic and official passports for holiday visits not exceeding 120 days and transits

San Marino: Bona fide holiday and business visits not exceeding 90 days and transits
Seychelles: Bona fide holiday and business visits not exceeding 30 days and transits
Singapore: Bona fide holiday and business visits not exceeding 30 days and transits
Slovak Republic: Bona fide holiday and business visits not exceeding 30 days and transits
South Korea: Bona fide holiday and business visits not exceeding 30 days and transits
Spain: Bona fide holiday & business visits only (period unspecified) and transits
St Helena: Bona fide holiday and business visits not exceeding 90 days and transits
St Vincent & the Grenadines: Bona fide holiday and business visits not exceeding 90 days and transits
Swaziland: Bona fide holiday and business visits not exceeding 90 days and transits
Sweden: Bona fide holiday & business visits only (period unspecified) and transits
Switzerland: Bona fide holiday & business visits only (period unspecified) and transits

Thailand: Bona fide holiday and business visits not exceeding 30 days and transits
Tunisia: Holders of diplomatic and official passports for holiday visits not exceeding 30 days and transits
Turkey: Bona fide holiday & business visits not exceeding 30 days and transits

United States of America: Bona fide holiday and business visits only (period unspecified) and transits
Uruguay: Bona fide holiday and business visits not exceeding 90 days and transits

Venezuala: Bona fide holiday and business visits not exceeding 90 days and transits

Zambia: Bona fide holiday and business visits not exceeding 30 days and transits
Zimbabwe: Bona fide holiday and business visits not exceeding 30 days and transits. Only government officials, including police on cross border investigation

General Work Visa

Under the General Work Visa there are very strict requirements. The South African government, although trying to promote work and trade in South Africa, recognize the need to give South Africans the chance to obtain employment ahead of any foreigner.

You will have to prove that you are the only person who can fill that position and that no other South African can play that role. This is done by placing an advert in a national newspaper advertising the position.

A Department of Labour report would need to be obtained.

You will also need to have a job offer/contract from your future employer.

The most important part of the process is skills assessment by SAQA (South African Qualifications Authority) in SA which evaluates your formal qualifications and compares them to a SA qualification. This process is mandatory and for this we would need your academic transcripts and award diplomas. Note under the regulations provision is made for the recognition of work experience in the absence of formal qualifications and this therefore makes provision recognition of prior work experience (RPL).

This is a paper based system which merely compares the foreign qualifications and arrives at an equivalent qualification in SA, and if qualified in SA then no SAQA needed.

Next your employer has to prove that you are the only person that can fill the position and no other South African can fill that role. This is done by placing an advert in a national newspaper advertising the position.

Please note the work Visa is issued in the name of the employer so the person is tied to the employer. If they change the job they will require a new work Visa.

There is some good news for people who are qualified through work experience only and they can qualify if they don’t require formal qualifications, ie SAQA.

Inter Company Transfer Visa

An intra-company transfer work Visa may be issued by the Department to a foreigner who is employed abroad by a business operating in the Republic in a branch, subsidiary or affiliate relationship and who by reason of his or her employment is required to conduct work in the Republic.

An important factor is that the applicant has to have been employed with the company abroad for a period of not less than 6 months.

The Intra company transfer is not designed to be a long term visa. The idea is to bring in foreign workers employed by the company abroad with a branch or subsidiary branch here in South Africa; they work or conduct training for four years, and then return home.

This Visa does not require the hassle of proving the company could not find suitable applicants and it does not require the hassle of verifying an applicant’s formal qualifications. It is based purely on employment. If you are a company that needs to transfer in foreign employers, please contact us and we will make this go as smoothly as possible.

It is important to note that this category of work Visa cannot be granted for more than four (4) years and this type of Visa is not extendable.