Cape Town – A Western Cape High Court judgment will come as a relief to many asylum seekers who have been unable to renew their visas for valid reasons.

A ruling handed down by Judge Elizabeth Baartman on Monday will give them an opportunity to do so without the fear of being treated as an illegal foreigner and returned home, law firm Norton Rose Fulbright Inc said in a statement on Tuesday.

Home Affairs has been interdicted from implementing certain provisions of the Refugees Act and new regulations (both implemented on 1 January 2020), which sought to return asylum seekers back to their home country, where they could face detention without trial, rape, torture or death, simply for being a month late in renewing a visa.

The Scalabrini Centre of Cape Town, represented on a pro bono basis by Norton Rose Fulbright and advocates David Simonsz and Nomonde Nyembe, sought to prevent the short- and long-term operation of the abandonment provisions, as the provisions infringed on asylum seekers’ rights to life, freedom and security of person, dignity and equality; and prevented South Africa from fulfilling its international law obligations towards refugees, including the international law principle of non-refoulement. The suspended provisions are commonly referred to as the ’’abandonment provisions’’.

The suspension will operate until the constitutional attack against the impugned provisions has been adjudicated on by the Western Cape High Court and, to the extent necessary, confirmed by the Constitutional Court.

’’The abandonment provisions meant that in the event that an asylum seeker fails to renew their asylum visa timeously, their applications for asylum are deemed abandoned. Arrest and deportation would follow for individuals with valid and undecided claims for asylum. Only where an asylum seeker has a compelling reason (and proof thereof) for delaying to renew a permit following a lapse (such as hospitalisation or imprisonment), can the Department of Home Affairs pardon the late renewal.

’’This is deeply problematic as it means that refugees can be returned to face persecution, without ever having the substantive merits of their asylum application determined.

’’It also leaves asylum seekers vulnerable in South Africa as essentially undocumented foreigners who will struggle to access health care, employment and education while they await the decision of whether their reason for late renewal meets the Department of Home Affairs high threshold,’’ Norton Rose Fulbright Inc said in a statement.

’’The reality for asylum seekers is that they are frequently required to renew their asylum visas. In the renewal process, they experience extraordinary delays caused by the administrative failures of the Department of Home Affairs.

’’These are often exacerbated by socio-economic factors such as not having the means to travel to far away Refugee Reception Offices as frequently as is required, waiting in long queues at the Refugee Reception Offices, facing corruption from officials who refuse to renew visas without bribes, or the general inefficiency of the Refugee Reception Offices that are overworked but understaffed. In light of these realities, many asylum seekers fail to renew their visas for valid reasons.

’’Judge Baartman delivered a powerful judgment, emphasising that the case does not involve imaginary victims – the suspended abandonment provisions affect real asylum seekers who could face serious human rights violations should the provisions continue to operate. She criticised the department’s conduct in the case, which was characterised as regrettable and unhelpful.

’’This includes many asylum seekers who may have been prevented from renewing their asylum documents prior to the pausing of services at Refugee Reception Offices during the national lockdown – a pause which is set to remain in effect until at least 31 January, 2021.

’’Scalabrini Centre, represented by Norton Rose Fulbright, firmly believes the abandonment provisions are unconstitutional and persists in a challenge to this effect.’’

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ASYLUM SEEKERS PERMIT EXPIRED during LOCKDOWN – Don’t know what to do ?

Apply Now for Temporary Residence even with EXPIRED LOCKDOWN PERMITS

The Constitutional Court handed down a judgement in the Ahmed matter as well as a Court Order opening the door for Asylum Seekers and Refugees to apply to change their status to  temporary residence visa . Contact us now before this fantastic opportunity is lost .

Contact us now and ask me HOW CHANGE TO TEMPORARY RESIDENCE . Travel abroad from South Africa , get a Canada , Schengen Visa afterwards .

Under the new rules they don’t have to cancel their asylum or refugee status and can change to any visa class if they qualify from within
South Africa

please contact us on :
Sa Migration International

 Whatsapp  Tel No : +27 (0) 82 373 8415

 

Tel No office : +27 (0) 82 373 8415 ( Whatsapp )

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Undocumented migrant children attend a class at the Refugee Social Services at the Diakonia Centre in Durban. (Photo: Leila Dougan / Daily Maverick) Less

Citizenship as a tool of exclusion was a staple of apartheid-era oppression in South Africa. It was with this in mind that the opening words of the Freedom Charter and later the preamble of the Constitution proclaimed, ‘South Africa belongs to all who live in it’.

Unlike the US or our neighbour Lesotho, South Africa does not confer citizenship simply because you were born in its territory – there must be a further tie to the country. Children born to South African citizens (whether one or both parents) are automatically citizens, and children born and registered to foreign parents who were admitted for permanent residence qualify for citizenship when they turn 18 if they have lived in South Africa their whole life.

But what about the many children born in South Africa to parents who were neither South African citizens nor foreigners admitted for permanent residence?

While the Citizenship Amendment Act of 2010 has been criticised for restricting citizenship rights, including the “midnight deprivation” of the right to citizenship  acquired under previous legislation, it took one positive step towards inclusion by broadening the category of persons eligible to apply for citizenship.

The Citizenship Amendment Act, which came into force on 1 January 2013, provided a new pathway to citizenship: children born and registered in South Africa to parents who were neither South African citizens nor permanent residents at the time of birth and who live their whole life in South Africa until they turn 18 have the right to apply for “citizenship by naturalisation”.

This progressive provision recognises the attachment and lived experience that young adults born and raised in South Africa have in their country of their birth. The provision promotes the spirit of those opening words of the Freedom Charter.

However, while the right to apply for citizenship in terms of this provision exists, there is no formal way to apply. This is because the minister of home affairs (including the six ministers who occupied that position since the Citizenship Amendment Act came into force) has not made the necessary regulations or application forms.

In 2017, five frustrated young adults who were eligible but unable to apply for citizenship approached the Western Cape High Court with the assistance of the Legal Resources Centre. The minister’s response? The provision only applies to children born after 1 January 2013, not before.

They should apply for asylum, or permanent residence, not citizenship. The court disagreed.

The court determined that the provision also applies to children born before 1 January 2013, and that by preventing them from obtaining or even applying for citizenship, the minister infringed on their dignity and personhood and effectively granted them “a status of ‘second-class’ citizens”.

The minister appealed the matter, but the Supreme Court of Appeal was equally scathing in its review of his interpretation of the provision. It found that sending the group of young adults from “pillar to post” infringed on their constitutional rights, and concluded that the “state of affairs cannot be countenanced.” It upheld the High Court’s finding that the provision also applies to children born before 1 January 2013, and ordered the minister to make the necessary regulations and application forms, and to accept applications on affidavit in the meantime. 

This was in 2018. The minister appeared to do nothing. No regulations were processed, no forms published. The young adults who brought the matter to court still weren’t assisted by the department.

About nine months later, in 2019, well beyond the normal prescribed periods for appealing a judgment, the current minister (Aaron Motsoaledi) sought to appeal the matter again, effectively sending the group of young adults from pillar to post, to the doors of the Constitutional Court. Earlier this month, the Constitutional Court refused the minister’s application to appeal. The minister’s appeal was refused as he had failed to provide adequate reasons for the delay in appealing.

It is now a decade since the Citizenship Amendment Act was passed into law, and seven years since it came into effect. Despite this, there is no indication from the Department of Home Affairs or the minister that we should expect the regulations to be made soon. The minister has been under order of the Supreme Court of Appeal to make the necessary regulations by November 2018.

This delay does not come as a surprise given the department’s history of delayed implementation of court orders. One need only look to the unreasonable delay in implementing the court orders to reopen the Port Elizabeth Refugee Reception Office (which was only done three years after the deadline given in the court order), the ongoing non-implementation of a September 2017 Supreme Court of Appeal order to reopen a fully functional Refugee Reception Office in Cape Town by 31 March 2018, or most recently, a November 2019 Supreme Court of Appeal judgment ordering the department to assist foreign nationals to conclude civil marriages in South Africa, which according to this news article is still not happening.

The minister’s failure to make the regulations and give effect to the Citizenship Amendment Act – in spite of the act having been passed by Parliament, signed into law by the president, and being ordered to do so by the Supreme Court of Appeal – poses serious challenges to the Constitution, the rule of law, and the democratic values that South Africa is so proud of. This should concern every South African, and not only those would-be citizens most impacted in this case.

The Scalabrini Centre of Cape Town, a not-for-profit organisation, is one of many organisations that have been approached by several young adults who hold this right to apply for citizenship but are unable to exercise it.

Many of these young adults are children of Angolan former refugees, children of refugees from Rwanda, Somalia and the Democratic Republic of Congo whose parents claimed asylum in South Africa in the late 1990s or early 2000s, or other long-time migrants in the country.

In stark contrast to the words of the Freedom Charter and the Constitution, these young adults are living in a state of exclusion. They hold the right to apply for citizenship, but cannot exercise this right. They are asked to have a passport and visa to continue living in the only country they have ever known.

While the minister did not create this problem, he is well-poised to fix it. Motsoaledi should act where his predecessors did not.

 

 

 

South African law provides for two kinds of visa categories temporary and permanent. A temporary status is called a visa and a permanent residence dispensation is called a permit. 

Why would someone need permanent residence?

For a foreigner who intends to come and reside in South Africa on an indefinite permanent basis, they are well advised to apply for a permanent residence permit. To do so they need a long-term temporary residence visa. 

A foreigner on a short-term tourist visa cannot apply for permanent residence in South Africa. 

Am I ready to apply for a permanent residence permit?

According to the Immigration Act, there are 11 specific permanent residence permit categories that an applicant can fall under. Some of these categories which fall under section 26 of the Act are referred to as “direct residency”, and others which fall under section 27 of the Act are referred to as “residency under other grounds”.   

• You are eligible to apply for permanent residence if have been in possession of work visas for at least the past five consecutive years, with a permanent job offer secured in South Africa.  A minimum of five years work permits need to have been endorsed in a passport. Intra-Company Transfer work visas are excluded and are not considered for this purpose. 
• You are eligible to apply for permanent residence If you have been espoused (by marriage or life-partnership) to a South African citizen or permanent resident for at least five years.
• You qualify to apply for permanent residence if you are the child, under the age of 21, of a citizen or permanent resident.
• You qualify to apply for permanent residence if you are the child of any age of a citizen.
• You are eligible to apply for permanent residence if you hold a critical skills work visa, as per Critical Skills List published in the Government Gazette, AND you have accrued at least five years of post-qualification experience (not necessarily related to the critical skills).
• You may be eligible to apply for permanent residence on the basis of your intended investment in an existing South African business or if you intend to establish and invest in South African business.  This investment should be no less than R5 million, or a lesser amount as agreed by the DHA should the business enterprise fall within one of the prescribed National Interest sectors of the South African economy.
• You may be eligible to apply for permanent residence on the basis that you have held refugee status in South Africa for at least the past five years.  For this purpose you will require obtaining a certification from the Refugee Standing Committee confirming that you will remain a refugee indefinitely.
• You may be eligible to apply for permanent residence on the basis of your receipt of pensions or irrevocable annuities for the rest of your life.
• You are eligible to apply for permanent residence on the basis that you can demonstrate your net worth to be equivalent to no less than R12 million AND undertake to pay to the DHA a non-refundable once off fee of R120,000.00 upon the approval of your application.

 

How do you apply for a permanent residence permit in South Africa?

Once a foreigner is in South Africa on a long-term temporary residence visa enabling him or her to apply, he or she will be eligible to apply for permanent residence in a category they comply with.

Short-term  and long-term visitor visa holders are not eligible to apply for permanent residence from within South Africa unless exceptional circumstances as regulated apply.  Spousal-based visitor visa holders may however apply for permanent residence.

The submission category of a permanent residence permit application may, in some cases, also determine the type of long-term visa the foreigner must hold to comply with the permanent residence application’s specific requirements.

Applications for permanent residence made in terms of sec 26(a) of the Immigration Act for instance, require the foreign applicant to be in possession of a work category visa at the time of submission.

Applications made in terms of sec 27(b) of the Act require the foreign applicant to be in possession of a critical skills work visa.  No minimum period of work in South Africa is required to comply with this category of permanent residence.

If I studied in South Africa can I apply for permanent residence in South Africa?

Having studied in South Africa alone does not make a foreigner eligible to apply for permanent residence in South Africa.

Foreign graduates of South African tertiary institutions who graduate in the area of critical skills are eligible to apply for permanent residence with no delay in terms of sec 27(b) of the Immigration Act.  The Minister of Home Affairs has granted these students a special waiver in April 2016.

If you were born in South Africa of foreign parents and if your birth was registered with the Department of Home Affairs, upon turning 18 years of age if you have lived in South Africa since your birth, you may be eligible to apply for South African citizenship by naturalization.

I am married to a South African can I apply for permanent residence?

Only the spouse, by marriage or life-partnership, of at least 5 years of a South African citizen or permanent resident is eligible to apply for permanent residence on the basis of the spousal relationship.

My children are South African citizens can I apply for permanent residence?

The relative within the first step of kinship of a South African citizen or permanent resident is eligible to apply for permanent residence in terms of sec 27(g) of the Immigration Act.  The first step of kinship includes parents and children.

The South African relative needs to satisfy the Department of Home Affairs that he or she can financially support the foreign relative in South Africa.  Minor dependant children cannot give financial assurance to their parents and for this reason this category of permanent residence applications is restricted to the parent of a minor child.

Can my accompanying family apply for permanent residence with me at the same time?

Yes, as long as the applications of the whole family are submitted at the same time then the immediate accompanying family of foreigners applying for permanent residence may apply together.

Should the applications not be submitted at the same time, the accompanying family will need to wait for the successful outcome of the main applicant’s permanent residence application to be in a position to apply for permanent residence as his or her immediate family.

The foreign spouse of a permanent resident applicant is only eligible to apply for permanent residence having been espoused for at least 5 years.

The foreign spouse of a critically skilled individual applying for permanent residence in terms of sec 27(b) of the Immigration Act does not need to have been espoused for 5 years to apply for permanent residence.

The foreign spouse of an applicant who submits an application for permanent residence on the basis of a business in terms of sec 27(c) of the Act does not need to have been espoused for a period of five years.

Can I apply for permanent residence if I was v-listed?

Permanent residence may be issued, subject to the prescribed requirements, to a person of “good and sound character”.  Police Clearance Certificates from any country a foreigner has resided above the age of 18 are required for the purpose of all permanent residence applications.

In terms of section 30(1) of the Act, a foreigner who is declared an undesirable person does “not qualify for a port of entry visa, visa, admission into the Republic or a permanent residence permit”.   An undesirability needs to be uplifted to enable a foreigner to obtain permanent residence.   A pending application for permanent residence may be rejected on the basis of the foreigner being an undesirable person.

In terms of Section 29(1) of the Act: “…prohibited persons …do not qualify for a port of entry visa, admission into the Republic, a visa or a permanent residence permit”.   A prohibited person cannot be granted permanent residence.  Only upon the successful upliftment of a prohibition a foreigner is eligible to apply and/or obtain permanent residence.

Can I lose permanent residence in South Africa?

Each permanent residence permit certificate is issued, based on category of submission, with specific conditions which are endorsed on the certificate. Permanent residence permit holders are advised to read carefully the conditions and when necessary to seek professional advice.

For instance:

• A permanent residence permit issued to the spouse of a South African citizen or permanent resident shall lapse if at any time within two years from the issuing of that permanent residence permit the good faith spousal relationship no longer subsists, save for the case of death. As per section 26(b) of the Immigration Act.
• A permanent residence permit issued to the child under the age of 21 of a citizen or permanent resident “shall lapse if such foreigner does not submit an application for its confirmation within two years of his or her having turned 18 years of age.  As per section 26(c) of the Immigration Act.
• A permanent residence permit issued on the basis of a business shall lapse if the holder fails to prove within two years of the issuance of the permanent residence permit and three years thereafter, to the satisfaction of the Director-General, that the prescribed financial contribution to be part of the intended book value is still invested.  As per section 27(c) of the Immigration Act.

All permanent residence permit holders are required not to be absent from the Republic for more than 3 consecutive years to maintain their status valid.

www.samigration.com

Unsung, unpaid and overworked is how foreign health workers working in hospitals around the country have been described.

Recent reports have brought to light some of the challenges faced by supernumeraries in the health sector.

In a letter published on IOL last week, the wife of a supernumerary detailed the hardships faced by her husband and many others in his position.

“Many supernumeraries already face untold financial hardship. Now, with Covid-19, the strain has doubled financially, mentally, emotionally and socially. Unlike their South African counterparts, they do not enjoy the same occupational compensation and protection, as they are not regarded as employees. Their medical oath when they started practising medicine has proven to be beyond their country of origin,” she said.

Unknown to many in the public, supernumerary doctors have been part of the South African healthcare system for almost 25 years.

What is a supernumerary registrar?

They are unpaid non-South African residents, mostly from beleaguered facilities in Africa, working in local hospitals to attain competence in aspects of surgical practice.

What role do they play at health centres?

Supernumeraries participate in the same training program with the same service delivery requirements as South African registrars.

They work under supervision of the relevant department head or his/her designate, as a registrar. But they will receive no remuneration from the university, department, hospital or Department of Health.

On completion of their training, they return to their home country with clinical and academic experience to expand existing specialist services or create units providing specialised care.

Where are they from?

Currently, the majority of the supernumeraries originate from African countries with limited or no access to specialist training.

They are either self-funded or sponsored by their respective countries. They finance their own board and lodging and transport to the different hospitals they rotate through for their specialised training.

In 2015, supernumeraries attached to the Department of Surgery at the University of KwaZulu-Natal (UKZN) constituted 21% of the entire registrar complement and 26% during 2016.

Non-South African citizens who have refugee or permanent residence status are not eligible to join the university in such a position. They are contractually bound to leave South Africa upon completion of their studies.

Challenges

They struggle to registration with the Health Professions Council of South Africa (HPCSA) and to obtain work permits and visas. There’s a lack of health insurance and financial support provided to the supernumerary registrars.

In 2017, a study on the experience of supernumerary registrars in the country highlighted many of them experienced xenophobia from patients (24%) and colleagues (48%).

Following the arrival of the Cuban doctors to help the country during the height of the pandemic, Stellenbosch University's Centre for Medical Ethics and Law’s AJ Arendse, JF Coelho and SH Gebers have argued although supernumerary programmes provided training to these doctors, the SA healthcare system benefited substantially from their services.

“The vast amount of money spent on Cuban doctors recruited to aid SA during the pandemic – in contrast to the lack of health insurance and financial support provided to the supernumerary registrars – raises a contentious point. In light of this neglect, their duty to SA during the pandemic remains an ethical quandary,” they wrote.

www.samigration.com