CAPE TOWN - Asylum applications could be streamlined with the launch of the Asylum Backlog Project.

It's a joint endeavour by the Home Affairs Department and the UN Refugee Agency.

It aims to eliminate the backlog in South Africa’s asylum system by 2024.

Home Affairs Minister Aaron Motsoaledi said that the Asylum Backlog Project would include hiring more staff to help deal with a backlog.

"We provided a sum of U$9.6 million for this project over a period of four years. They'll also provide technical assistance in the form of training. The money will be used to employ 36 extra lawyers because at the moment there are only three."

Motsoaledi said that when the Refugee Act came into effect in 1998, the country had 11,000 asylum applications and in 2006 it reached 53,000.

"In 2008, it increased fourfold - 207,000 people just arrived and said they're looking for asylum. Now while the system was still shocked, the following year another 223,000 followed, which means there's still 400,000 people within a period of two years. Since that time, the system has never recovered."

He said that they'd still not been able to clear that backlog.

"The number of people now who must be cleared via this backlogs is 163,000 applications

 

www.samigration.com

In a move to prevent the introduction of SARS-CoV2-variants, the German Government on 30th January 2021 has imposed a general ban on travel and entry from countries with widespread occurrence of such virus variants (referred to as areas of variant of concern). These include South Africa, Eswatini and Lesotho.

The ban has been extended until 14.04.2021 and may be further extended depending on the development of the pandemic.

Transport companies, e.g. air carriers and railway companies, may not transport any persons from these countries to Germany. Entry for such travellers into Germany is not allowed under Art. 14 (1) / Art. 6 (1) lit e of the Schengen Borders Code.

There are only a few, strictly defined exceptions to this travel ban:

• German citizens
• Members of the nuclear family of Germans who travel jointly with them. The nuclear family comprises spouses, legal partners, minor children and parents of minor children
• Citizens of the EU-countries and Switzerland, Norway, Liechtenstein or Iceland who have their permanent residence in Germany
• Third country nationals with permanent residence and lawful residence in Germany
• Transit passengers (in international transit only, not within the Schengen Area)
• Repatriating crews
• Health Workers
• Persons traveling on urgent humanitarian reasons
• Persons traveling in official mission for EURATOM, the International Atomic Energy Organization or the United Nations or UN-organizations.

Please find more details on the Website of the German Federal Foreign Office  concerning the following topics:

Travel ban, general entry restrictions, test requirements, digital entry registration, quarantine regulations

Answers to frequently asked questions regarding the Corona-Virus situation in Germany can be found here.

Applications for long-term visa
If you are planning a long term stay in Germany (such as for work or family reunification) you can find more information here. Please note that although it is currently possible to submit a national visa application the visa itself will not be issued as long as the above mentioned travel ban is in place.

PLEASE NOTE:
The following information only applies for the time after the travel and entry ban from areas with virus variants of concern will have been lifted:

Applications for Schengen visa - only in exceptional cases

Entry to Germany from South Africa, Eswatini and Lesotho under certain conditions - after lifting of the entry ban - will be possible. Please find below the list of exceptions where travel is permitted and a Schengen visa application may be submitted.

If you already have a valid Schengen visa issued before 17.03.2020 you will only be permitted entry to Germany - after lifting of the entry ban -  if one of the exceptions apply to you and the additional documentation (as mentioned below) are provided upon entry.

How to apply for a Schengen visa – additional documentation required

Should you be planning a trip under one of the exception categories, you may schedule an appointment with the external service provider TLS to submit your application.

Please make sure that, in addition to all the documents required for the basic purpose of the trip (e.g. business or visit), you also submit the documentation listed below in the respective category with your application. 

You can find general information on Schengen-Visas here

Applications for which the required documentation is missing, including proof of the existence of an exceptional case, must unfortunately be rejected. Neither the visa fee nor the service providers’ fee will be refundable in these cases.

Info

When travelling please make sure that the documentation is on hand at all times in case requested by the Federal Border Police upon entry.

Quarantine in Germany - still mandatory

When entering Germany you are subject to quarantine regulations. Check carefully whether the duration and circumstances of the quarantine make it possible to achieve your purpose and duration of the trip, justifying the current trip.

Further Information regarding current quarantine regulations can be found here and on the Website of the Federal Foreign Office.

Regulations on accomodation in Germany

Due to the partial lockdown in Germany many Hotels, pensions and guest-houses are closed or may close. When a Schengen visa is issued, the German Missions in South Africa cannot foresee that the booked accommodation will still be open at the time of arrival in Germany. Hotel closures due to a lack of demand can be expected. If there is no additional booking confirmation, the traveler may be denied entry by the German Federal Police.

Therefore for Schengen visa applications, additional documents regarding accomodation must be submitted with immediate effect:

• A hotel booking confirmation for business travelers, which was issued after 29.01.2021 and confirms the reservation. The applicant needs to travel with the requested document on hand.
• Confirmation from the family that was issued after 29.01.2021 that accommodation will be provided by them. The applicant needs to travel with the requested document on hand.

List of exceptions from entry restrictions for short-term stays in Germany

A) Family Visits:

Visits by members of the so-called nuclear family (i.e. spouses, registered partners, minor children and parents of minor children) of the following group of persons:

• German citizens
• European Union citizens
• Citizens of the United Kingdom, Liechtenstein, Switzerland, Norway or Iceland
• Third-country nationals with an existing long-term right of residence and residence in an EU or Schengen member state or the UK (residence permit or long-term visa)

To be submitted additionally:

• Proof of the family relationship and passport copy of the family member who is being visited

Short-term visits of first or second degree relatives not belonging to the “nuclear” family for imperative family reasons such as

• Births; Weddings; Deaths / Funerals
• Special exceptional cases for which there is compelling reason.

To be submitted additionally:

• Proof of the urgent reason for travel and the family relationship

Short-term visits by the third-country partner to a nonmarried/non-registered partner in Germany and for marriage if:

• It is a long-term, permanent relationship / partnership;
• Both partners having met at least once in person;
• The partner issuing the invitation is a German citizen, a citizen of another EU country, Iceland, Liechtenstein, Norway, Switzerland or the United Kingdom or a third-country national with a long-term residence permit for Germany.

To be submitted additionally:

• a written invitation from the person living in Germany, as well as a copy of the identity documents of the person issuing the invitation,
• a declaration of the existence of the relationship, signed by both partners and including the contact details of both partners, and
• other suitable evidence of previous personal meetings, in particular passport stamps, travel documents / flight tickets or a shared residence in another country; additional documentation such as photos, social media posts, postal/email correspondence etc. may also be provided.

Joint visits by unmarried couples from abroad if

• There are urgent reasons (e.g. wedding, illness or funeral of close relatives)
• One of the partners is a German citizen or a citizen of another EU country, Iceland, Liechtenstein, Norway, Switzerland or the United Kingdom.
• The relationship/partnership is of a long term-nature, i.e. intended to be lasting and both partners having a joint place of residence abroad.

To be submitted additionally:

• A written explanation of the urgent reason for the joint entry with a declaration of the existence of the relationship, signed by both partners and including the contact details of both partners, and
• Proof of the existing relationship, particularly proof of a joint place of residence abroad (e.g. residence registration certificate). Supplementary proof may be provided in the form of photos, social media, letters and email correspondence.

B) Business trips and work purposes

Business trips for specialists or highly qualified people

To be submitted additionally:

• A declaration on the absolute necessity for a business trip at short notice personally signed by the business partner or employer in Germany. (n.B: a declaration by a business partner or employer in the sending State (third country) is not sufficient by itself). The letter by the German business partner / employer must contain the declaration that the trip cannot be postponed, the work cannot be carried out abroad and is absolutely necessary for economic reasons. (Sample letter)
• Proof that the business traveler is a specialist or highly qualified Person

Trade Fair exhibitors

To be submitted additionally:

• Confirmation of participation by the trade fair organizer

Trade Fair visitors

To be submitted additionally:

• Entry ticket to the fair
• Confirmation by at least one exhibitor that an appointment has been scheduled for a business meeting at the trade fair

Assembly specialists

To be submitted additionally:

• Contract for work and services
• Contractor´s employment confirmation for the traveller
• Labour Agency´s confirmation of receipt for the notification made by the customer having commissioned the assembly or disassembly in question

Seafarers

To be submitted additionally:

• Confirmation from the employer about the purpose of the trip
• Seafarers' book

Professional athletes taking part in competitions / tournaments

To be submitted additionally:

• Invitation / confirmation of participation from the German organizer

Umpires taking part in competitions / tournaments or international sporting events in Germany

To be submitted additionally:

• Invitation by the respective German Federal Sports Federation or accreditiation by the organizing committee

Journalists in particularly justified individual cases

To be submitted additionally:

• Letter by the employer specifying the particular need for travel

Employees for religious reasons in particularly justified cases

To be submitted additionally:

• Letter by the employer in Germany specifying the particular need for travel

Artists in particularly justified individual cases

To be submitted additionally:

• Letter by the German organizer specifying the particular need for travel

C) Other travel purposes:

Travel for compelling medical reasons

To be submitted additionally:

• Verification and confirmation that treatment cannot be carried out in SA and that without the treatment; the condition would be life threatening and further damage could occur (sample doctors' certificate)
• Confirmation by the receiving clinical institution in Germany about scheduled medical Treatment

Participation in court hearings

To be submitted additionally:

• Summons from the German court

If you are planning a long term stay in Germany (such as for work or family reunification) you can find more information here.

Frequently asked questions to the Corona-Virus situation in Germany can be found here.

www.samigration.com

Many South African families have been forced to live apart for up to a year now as a result of New Zealand’s extended border closure and the halting of its visa issuing processes.

There is however good news on the horizon for South Africans who have been desperately trying to get to New Zealand.  The country’s immigration department has revealed a timeline for the expected dates of its visa processing restart.

For several years, New Zealand was one of only a few countries that South Africans were able to travel to with visa-free access. The New Zealand government ended visa-free entry to South African nationals when it implemented a visa regime for South Africans in January 2017. 

Since then, South Africans have been required to obtain visitor visas prior to travelling to the “Land of the Long White Cloud”.

CLOSURE OF SA VISA PROCESSING CENTRE

New Zealand’s borders have been closed since March 2020 in an effort to limit the spread of COVID-19 infections in the country by prohibiting entry to individuals from outside of its borders.

While New Zealand has not been receiving visitors or issuing visas, it came to the attention of Immigration New Zealand that visa processing could be done in New Zealand. To save costs, the Immigration New Zealand (INZ) decided to close its visa processing centres in three locations: South Africa, India and the Philippines.

RESTART OF NEW ZEALAND VISA PROCESSING

According to Imagine Immigration, a migration company specialising in migration assistance to Australia and New Zealand, senior officials at Immigration New Zealand have outlined the following timeframe for the resumption of visa processing:

• Visitor visas from July 2021;
• Student and partnership temporary visas from October 2021; and
• All resident class visas within 12 to 18 months.

PRESSURE TO PRIORITISE SPLIT FAMILIES

Imagine Immigration also stated that there is pressure on the New Zealand government to allow entry to families who have been separated for lengthy periods of time due to New Zealand’s border closure and the halting of visa issuing.   

It is believed that priority will be given to those whose visas had been approved when the country shut its borders, where a partner or parent is already living in New Zealand. Next in line will be those who did not have visas when the border closed, but who have a partner or parent in New Zealand.

www.samigration.com

While accommodation establishments grapple with record low occupancy levels, slow recovery, and health and safety protocols, there is another worry looming in the background – how do you protect yourself from potential COVID-19 litigation? Is an accommodation establishment liable if a guest falls ill? And what steps can an establishment take to make sure they are never on the wrong side of a negligence claim?

Insurers offer cover for pretty much any incident, accident or sudden illness on your property; they no longer offer liability cover for COVID-related cases – leaving clients vulnerable to a potential lawsuit.

What then can operators, guesthouses, lodges, hotels and B&Bs do to mitigate their risk during a global pandemic that may well become endemic? 

According to corporate, commercial and contract attorney, Stefan de Beer, in a negligence claim, business owners will need to show that they took all reasonable steps to protect their patrons and guests from COVID-19 – but that burden of proof rests with the claimant.

“Negligence comes down to an objective test,” says De Beer. “What would the reasonable person in your position do? This is not someone who is an expert, or someone who has endless resources. It’s someone with similar access to resources, information and experience as you have: what would they do? The rule of thumb is that he who alleges must prove. If someone alleges that you are negligent, they must prove that allegation. Keeping records of all efforts made and information around the events in question will, however, only make it easier to disprove allegations of negligence.”

Any successful claim of negligence will come down to an intentional or negligent breach of duty of care. You can minimise the possibility of litigation by following a few key steps:  

1. Update your paperwork

Have you updated your contracts and terms and conditions to meet post-COVID traveller needs? Your contract – and related T&Cs – will be your first line of defence against possible litigation. There is no ‘one size fits all’ solution as every business is different, so look carefully at your own situation and consider:

• Your refund policy if a guest’s stay is impacted by a COVID incident out of their control.
• Waiving penalty fees due to travel bans/travel restrictions out of a guest’s control.
• How to deal with penalty clauses, for example, if a guest is turned away at the airport due to fever (i.e. fails medical screening).
• A provision in your T&Cs that guests/participants are obliged to undergo testing and remove themselves from the tour/group until a negative test result is received.
• Disclaimers/indemnities that offer a layer of protection against COVID claims – if standard, reasonable measures are taken to avoid the spread of COVID-19.

Once you have looked carefully at your own business’s operational needs and formulated your T&Cs, it is important to get an attorney to assist you in finalising the contract. 

1. Follow strict health and safety protocols

The National Disaster Management Act lays out certain regulations around gatherings, social-distancing, curfews, testing, self-isolation, quarantine and the wearing of masks. This is law and has to be followed. In addition, the Tourism Business Council of South Africa (TBCSA) has a comprehensive list of health and safety guidelines in place – and these demonstrate that that you are taking all precautions necessary against COVID-19.

While the TBCSA guidelines are not legal requirements, if you have made the pledge that you will follow the protocols – and you have received your stamp of certification that confirms you are compliant – you are bound to the protocols. In other words, if you portray your business as fully compliant, then you can be held liable if found negligent in your duty of care.

1. Have a plan of action

Imagine the scenario; a guest arrives at your guesthouse displaying COVID symptoms, or arrives symptom-free but has received word en-route that they have been exposed to a close family who has just tested positive for COVID-19. Do you have a plan of action?

According to the law, anyone displaying symptoms, or who was within an enclosed space for more than 15 minutes with a COVID-positive individual without PPE, must isolate.

This means isolating guests in their room, providing room service, access to COVID testing, access to medical care if necessary, and PPE (including a medical kit with pulse oximeter if possible). Ensure that you have developed a good relationship with your local health authority – and know exactly whom to call for testing and support. SATIB clients have the added benefit of just calling SATIB24 Crisis Call, who will guide you through any protocol.

1. Draw up SOPs

A standard operating procedure (SOP) is a great way to ensure that all staff know the process – and their responsibilities – should a COVID-19 incident occur. An SOP leaves no room for interpretation and describes the necessary steps to take (in accordance with government regulations) should a guest fall ill.

An operator or establishment can draw up SOPs to cover (for example):

• Health screening and recording keeping,
• Steps to take if a guest arrives displaying COVID symptoms,
• Steps to take if a guest comes down with symptoms during their stay,
• Steps to take if a member of staff becomes ill/displays symptoms, and
• Steps to take if a guest refuses to follow agreed protocols (for example, wearing a mask in public).

1. Enforce COVID-compliant behaviour

But an SOP is not worth the paper it is written on if it is not followed to the letter. Model COVID-compliant behaviour, ensure that each and every staff member follows your agreed protocols – and ask your guests to do the same. No one is exempt from wearing masks in public areas, for example; it is the law. Have it clear in your contract, T&Cs, check-in information – and signage around your establishment.

www.samigration.com

Scalabrini Centre in Court seeking an interdict against the Department of Home Affairs, in first step to challenging the constitutionality of the Refugee Amendment Act’s ‘deemed abandonment’ provisions.

On 28 October 2020, the Scalabrini Centre of Cape Town, represented by Norton Rose Fulbright South Africa Inc, is in the Western Cape High Court, seeking to interdict the Department of Home Affairs from implementing or operating specific provisions related to the deemed abandonment of asylum applications, which provisions were implemented with the coming into effect of the Refugees Amendment Act and Regulations from 1 January 2020.

Scalabrini Centre, in its own right as well as in the public interest, has brought a constitutional challenge against certain provisions in the Refugees Amendment Act and Refugees Regulations, which came into effect on 1 January 2020. The specific provisions being challenged are those relating to the ‘deemed abandonment’ of asylum applications simply because the asylum applicant is a month or more late in renewing their asylum document. In this challenge, Scalabrini Centre has first sought an interdict against the Department of Home Affairs, stopping the Department from implementing or applying the specific provisions. This interdict is to ensure that anyone who may have, or might still, fall foul of those provisions is protected against refoulement pending the final hearing of the main matter – the constitutional challenge of the impugned provisions.

Today, 28 October 2020, Scalabrini Centre is in court to argue why the interdict is necessary pending the finalisation of the main matter. The Department of Home Affairs has opposed the interdictory relief being sought by Scalabrini Centre. It has also opposed the constitutional challenge.

For more on the main challenge, see below.

www.samigration.com