Constitutional Court protects rights of detained immigrants

The Citizen – 18 August 2021

This despite the fact that it will now become very expensive to process the arrests of undocumented migrants.

Lawyers for Human Rights (LHR) has welcomed a unanimous Constitutional Court ruling upholding the rights of all detainees – also alleged illegal immigrants – to access our courts.

The Constitutional Court ruled that sections 34(1)(b) and (d) of the Immigration Act were inconsistent with the constitution and therefore invalid and gave parliament 24 months to issue new legislation to correct the defects in the act.

Although the ruling of invalidity was suspended, the court ruled that pending the enactment of amended legislation, any undocumented foreigner detained under section 34 of the act must be brought before court in person within 48 hours from the time of arrest or not later than the first court day thereafter if the 48 hours fall outside ordinary court days.

This also counts for foreigners currently already in detention.

The court ruled that the rights guaranteed in section 12 and 35 of the constitution – the right to challenge in court a detention within 48 hours of arrest and the right to be protected against arbitrary detention without trial – applied to foreign nations as well as South African citizens.

LHR said in a statement the ruling affirmed that all persons living in South Africa were protected by the law and not subject to arbitrary violations of their rights by authorities.

“This ruling will most importantly protect vulnerable individuals whose detention have in the past fallen beyond the reach of judicial oversight, resulting in widespread rights violations,” the rights group said.

LHR thanked Legal Aid South Africa, without whose financial support they would not have been able to wage a successful battle against state injustice, as well as People Against Suffering, Oppression and Poverty (Passop), which intervened in the application as a friend of the court.

LHR took the matter to the Constitutional Court for confirmation after the High Court in Pretoria ruled that the sections of the act were invalid, but Home Affairs appealed the ruling, arguing that the sections were consistent with the constitution and denying that arrested foreigners enjoyed the same protection under the constitution.

The Constitutional Court dismissed the state’s appeal and upheld the LHR’s argument that the legislation illegally authorised administrative detention without trial for purposes of deportation in violation of the constitution.

The organisation had instituted 115 cases against home affairs since 2009 and provided free legal assistance to arrested and detained foreigners who were in some instances detained without trial for periods of up to six months or longer.

Judge Chris Jafta said the LHR’s papers painted an unfortunate picture of widespread disregard for statutory requirements, which led to a violation of the rights of vulnerable people.

These lapses revealed shortcomings enacted by the Immigration Act in a system that was supposedly designed to promote dignity and human rights.

The state argued that it would increase costs as about 500 foreigners would have to appear in court daily countrywide, which would require a massive number of magistrates, but Judge Jafta said the mere increase in costs alone could not justify denying detainees the right to challenge the lawfulness of their detention.

He said an increase in costs would be unavoidable if each foreigner decided to exercise their right to challenge the decision to deport them, but the state should have budgeted for these costs, which are necessitated by the implementation of the act.

The court found that the reasons advanced by the state fell woefully short of justifying the limitation created by the impugned provisions of the act.

Judge Jafta stressed that arrest and detention without trial had been commonly used to suppress opposition to laws and policies of the former apartheid government, with detainees in most cases being beyond the reach of judicial oversight and subjected to torture and other forms of violence.

The constitution included section 12 in the Bill of Rights to outlaw this abuse of power and deprivation of personal freedom by guaranteeing everyone physical freedom and protection against detention without trial, Judge Jafta said.

www.samigration.com

 

Time to rethink immigration

The Citizen – 15 August 2021

Without a sound immigration policy in place, our economy is at serious risk of a severe skills shortage.

The United Nations estimates that one in every 113 people worldwide are migrants. That’s more than 250 million people who have left their country of birth to seek better opportunities or apply their skills in other countries.

Unfortunately, our immigration policy has not kept up to global standards, with decisions about migration being made on a mechanical application of rules instead of the integrated intelligence-based approach that is best practice globally.

To date, government has seen international immigration as a routine administrative function instead of a process that can bring tremendous benefits to South Africa. The latest Green Paper on International Immigration is designed to overcome these limitations and bring South Africa in line with global best practice.

Key to this is the country’s immediate need to integrate with a highly connected world and to start taking advantage of the influx of talented migrants from other parts of Africa and the world. A recent McKinsey report estimates that the global economy will have 40 million fewer workers with university degrees in 2020 than is required.

Without a sound immigration policy in place, our economy is at serious risk of a severe skills shortage. In South Africa, pressure on the economy is exacerbated by a lack of skilled workers.

South Africa has also been criticised for its lack of competitiveness in terms of attracting skills internationally. Considering the political instability prevalent in many sub-Saharan African countries, including our immediate SADC neighbours, the need for an effective and equitable refugee policy is paramount.

The proposed establishment of a Border Management Authority to balance the facilitation of legitimate trade and travel with security is a welcome development. Integrated border control would help ensure the effective and efficient management of refugees and asylum seekers who have fled their countries of birth.

As a whole, South Africa has not been overly welcoming to refugees and asylum seekers. Of the 70 000 applications for asylum the country receives per year, more than 90% are rejected.

At present, there are fewer than 100 000 legally recognised refugees in South Africa. And in 2015 alone, more than 54 000 people were deported – at high cost to taxpayers.

In addition, asylum seekers are often met with corrupt officials who demand payment for services that should be rendered freely. A recent research report by Lawyers for Human Rights and the African Centre for Migration & Society found that 30% of asylum seekers encountered some form of corruption during the asylum process.

In fact, 13% reported that they were unable to access an office because they were not able to pay the officials demanding payment. The new legislation will potentially address such discrepancies.

. Considering the national economic and strategic importance of South Africa’s immigration policy, it is imperative that citizens play an active role in shaping our country’s approach to international skills migration

www.samigration.com

 

Stateless man may work and stay in SA

The Citizen – 21 August 2021

Acting Judge MB Mokoena set aside the minister’s refusal to grant an exemption and a permanent residence permit to Frederick Ngubane and gave the minister 90 days to reconsider his application.

The High Court in Pretoria has granted an order to a stateless man, allowing him to work and live in South Africa while the home affairs minister reconsiders his application for permanent residence.

Acting Judge MB Mokoena set aside the minister’s refusal to grant an exemption and a permanent residence permit to Frederick Ngubane and gave the minister 90 days to reconsider his application.

Ngubane, assisted by Lawyers for Human Rights, initially asked the court to declare that stateless ness was a special circumstance for purposes of the Immigration Act.

But Mokoena ruled that it would be premature to make a pronouncement on the issue before it was established by the department if Ngubane was indeed stateless and before the minister decided if statelessness constituted special circumstances for purposes of the Act.

The judge said the minister was the one to decide, after investigations, if Ngubane was stateless or not and if such status constitutes special circumstances.

Ngubane could again approach the court for relief if he was not satisfied with the ultimate decision. Ngubane alleged he was born in Newcastle in South Africa in 1990, but went to live in Kenya with his mother after his father’s death in 1993.

After his mother was murdered in 2002, he went to live in Uganda with a friend of his mother, but in 2009 returned to SA via Tanzania and Mozambique.

He alleged he was allowed to enter South Africa by producing his birth certificate, but he was robbed of the certificate and that home affairs then refused a late birth registration.

The Ugandan and Kenyan governments confirmed that he was not their citizen but the Tanzanian government linked his origin “to some other East African countries”.

www.samigration.com

 

Home Affairs a byword for corruption, long queues and inefficiency

17 August 2021 – The Citizen

In court papers, , an immigration practitioner since 2007, said that 10 years ago, residence applications were handled in less than six months.

There can be few better, two-word phrases to sum up South African state incompetence and inertia than “home affairs”.

The department is a byword for corruption, long queues and inefficiency.

Now, it emerges, it is also potentially stifling economic growth by slowing down the already long and tedious process for permanent residence permits.

In doing so, it is not only delaying the arrival of badly needed skills possessed by potential immigrants, but is also preventing those immigrants bringing with them millions of US dollars each in potential investments.

According to local immigration practitioners – who are now desperately trying to get the courts to intervene – the shambles at home affairs could be costing the economy between R10 billion and R15 billion a year.

In court papers, Leon Isaacson, an immigration practitioner since 2007, said that 10 years ago, residence applications were handled in less than six months. Now, they take up to six years.

Estimates are that as many as 180 skilled and wealthy people are waiting for their requests to be processed.

Yet, the government continues to dither with border control policy, allowing South Africa to have some of the most porous borders in the world and a tsunami of illegal immigration.

www.samigration.com

Asylum seekers can now apply for residence visas

The Citizen – 22 August 2021

Constitutional Court ruling overturns Home Affairs directive.

 

The Constitutional Court has ruled that asylum seekers whose refugee applications have been refused, can apply for a visa. Archive photo: Ashraf Hendricks/GroundUp

 

If you are an asylum seeker and your application to be a refugee is refused, you are still allowed to apply for a visa. The Constitutional Court ruled this in a unanimous judgment handed down in October.

Background

The case was brought by three asylum seekers whose applications for refugee status had been refused. They each then made applications for visas in terms of the Immigration Act.

Arifa Fahme applied for a visitor’s visa so that she could remain in South Africa with her husband and children. VFS Global, a company contracted by Home Affairs to process immigration applications, rejected her application because she was an asylum seeker. The company said that it cannot issue temporary residence visas to asylum seekers.

Kuzikesa Swinda and Jabbar Ahmed each applied for a critical skills visa. Their applications were rejected because their asylum applications were before the Refugee Appeal Board.

The main reason for all of the rejections, however, was a directive issued by Home Affairs in February 2016. This directive said asylum seekers are only entitled to visas under the Immigration Act when they have been certified as refugees by the Standing Committee for Refugee Affairs. This effectively barred asylum seekers from applying for any type of visa.

High Court and Supreme Court of Appeal

Fahme, Swinda and Ahmed approached the High Court to set aside the directive. The High Court found that the Immigration Act and Refugees Act are complementary and not mutually exclusive. It found that the Immigration Act entitled foreign nationals to apply for a visa or permit.

The court reasoned that there was no reason to exclude asylum seekers from this definition. Also, the court found that denying Fahme the right to be with her family unjustifiably infringed her right to dignity. It ruled that Swinda and Ahmed should be entitled to critical skills visas if they otherwise met the requirements of the legislation.

Home Affairs appealed against the decision to the Supreme Court of Appeal (SCA). The SCA found in its favour. In a nutshell, the SCA found that it was impossible for the applicants to apply for permits in terms of the Immigration Act because such applications had to be made from outside the country.

The case then went to the Constitutional Court.

Constitutional Court proceedings

The Constitutional Court considered two main issues. First, whether an asylum seeker can apply for a permit or visa in terms of the Immigration Act. Second, whether the directive should be set aside. PASSOP (People Against Suffering, Oppression and Poverty) joined the case as a friend of the Court.

Can an asylum seeker apply for a permit or visa in terms of the Immigration Act?

An asylum seeker is a person who has arrived in South Africa who asks to become a refugee. A person is eligible to be a refugee if they are fleeing another country due to persecution for their political beliefs or their membership of a particular social group. When a person enters South Africa as an asylum seeker they may be issued an asylum transit visa. This visa is valid for five days. During this period an asylum seeker must report to a Refugee Reception Office to apply for refugee status. If the application for refugee status is successful, the person is entitled to live and work in South Africa and may apply for permanent residence.

The Immigration Act allows any foreigner to stay in South Africa by applying for two categories of applications: temporary residence permits or permanent resident permits. The Act includes several different temporary residence visas such as spousal visas and critical skills visas.

An application for a temporary residence visa must be made at a South African embassy in the country in which that person lives.

The court found therefore that Ahmed and Swinda could not have applied for their permits in South Africa. Those applications had to be made from outside the country. The court found therefore that the SCA’s ruling in this regard was correct.

But the court then considered whether the directive should be set aside. It found that the directive imposed a blanket ban on asylum seekers from applying for a temporary residence permit or a permanent residence permit. The directive only enabled asylum seekers to apply for a permanent residence permit if they had been certified indefinitely as a refugee by the Standing Committee for Refugee Affairs.

The court then considered whether this particular interpretation of the Refugees Act and Immigration Act was justifiable.

It pointed out that unlike applications for temporary residence permits, applications for permanent residence permits do not have to be made from outside the country. Also, the court said, the Immigration Act entitled “any foreigner” to apply for a permanent residence permit and there was no reason to exclude asylum seekers from this definition.

The court noted that to request Fahme to leave the country and leave her family behind would be unfair and unjust.

For all these reasons the court found that to the extent that the directive imposed a blanket ban on an asylum seeker from applying for a permanent residence permit it was unlawful and must be set aside.

What about the applications of Swinda and Ahmed? The court said that unfortunately they were not in the same position as Fahme. Critical skills visas are a category of temporary residence permits visas and such applications can only be made from outside the country. However, the court pointed out that the Immigration Act entitles a person applying for a temporary residence permit to apply for an exemption from the requirements of the Act. This meant that Swinda and Ahmed were entitled to apply for an exemption in order to apply for their visas locally. The court pointed out that there was good reason to allow asylum seekers to apply for an exemption because they often do not have proper documentation and cannot return to their country of origin. The court found that to the extent that the directive imposes a blanket ban on asylum seekers from applying for a temporary residence permit it was unlawful and must be set aside.

Why this judgment is important

Having worked in a state institution assisting refugees and asylum seekers for more than a year, I have witnessed first hand their plight. The asylum system in South Africa is critically understaffed and under-resourced. Many asylum seekers are struggling to regularise their stay and have no proper documentation. They need this in order to open bank accounts, find employment, run their businesses and improve their quality of life.

This judgment provides an alternative avenue for them to make a home in South Africa by applying for permits in terms of the Immigration Act. Hopefully the judgment will be a reminder that South Africa belongs to all who live in it, whatever their background or immigration status.

www.samigration.com