'Family joining': What our new court ruling means for refugees' families

17 May 2023 | EWN

The Western Cape High Court has handed down a ruling that will allow family members of asylum seekers to document themselves as dependents.

CAPE TOWN – A new court order seeks to cut the red tape for refugee families seeking asylum.

The Western Cape High Court on Monday handed down a ruling that will allow family members of asylum seekers to document themselves as dependents. This is likely to take place in process called “family joining”.

The Refugee Rights Unit at the University of Cape Town took the matter to court in 2016. The new court order means refugee families can be documented together, ensuring their rights to family unity and dignity in South Africa.

Popo Mfubu of the Refugee Rights Unit said many applicants experienced barriers when they tried to join their families in South Africa.

“This is an opportunity to document spouses, dependents and children in a way that is clear and consistent. There is a written policy that allows for them to be joined,” he said.

Wives, husbands, children and other dependents of asylum applicants and refugees were often left with no way to document themselves. Applicants will have to provide certain documents where possible, such as a marriage or birth certificates.

If there are serious doubts about the validity of a parent's claim over a child, Home Affairs can request a DNA test.

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Automatic abandonment of asylum application: An analysis of the Scalabrini Centre of Cape Town v Minister of Home Affairs judgment

SA Migration | 17 May 2023

The process of applying for asylum in South Africa is governed by the Refugees Act 130 of 1998 (Refugees Act). Sections 22(12) and 22(13) were introduced into the Refugees Act by the Refugees Amendment Act 11 of 2017, which came into effect on 1 January 2020. These provisions, and their subsequent Regulations, were the subject of litigation launched in the Western Cape High Court.

The Scalabrini Centre of Cape Town instituted proceedings against the Department of Home Affairs (DHA), challenging the constitutional validity of sections 22(12) and 22(13) and Regulation 9 and Form 3 of the Refugee Regulations. These impugned provisions create an automatic presumption that asylum seekers have abandoned their application if they do not renew their asylum visa within 30 days after its expiry – the effect of this automatic presumption can be far-reaching and may lead to asylum seekers who have genuine claims being deported back to circumstances in which they can face further persecution.

Non-refoulement

At the heart of this matter lies the principle of non-refoulement. “The principle of non-refoulment is the cornerstone of international refugee protection” – it ensures that an individual is not returned to any place where there lies a possibility that they may face persecution. South Africa has ratified various international treaties which speak to this principle, and in so doing has bound itself to abide by the tenets of the international covenants. Further, in compliance with its international obligations, South Africa promulgated the Refugees Act, which entrenches the principle of non-refoulement in section 2. This demonstrates the commitment South Africa initially had to the protection of forced migrants.

However, over the years, we have seen our commitment to the progressive values underlying the Refugees Act dwindle, and the ability to apply for asylum become more stringent and difficult to access. The provisions in question in this matter are a direct reflection of the times we are in and the arbitrary barriers foreign nationals face in trying to remain documented.

The applicants in this matter succinctly placed before the court the consequences of the impugned provisions, which are:

• Asylum applications can automatically be deemed abandoned, without considering the merits of the individual’s claim.

• While in theory the individuals can make representations, no clear procedures exist to do so.

• Children are also at risk of being arrested, detained and undocumented.

Regulation 9(3) of the Refugees Act provides that the DHA can only allow for the late renewal of a permit if the asylum seeker has a compelling reason and proof thereof (such as hospitalisation) for the delay. This ultimately means that asylum seekers who simply cannot afford to travel to the Refugee Reception Offices within that month, could be left undocumented and would then struggle to obtain employment, gain access to healthcare and education – they would, as a result, be dealt with as an illegal foreigner in accordance with section 32 of the Immigration Act 13 of 2002.

The respondent argued that the provisions were necessary to help prevent recalcitrant asylum seekers from abusing the asylum system. Further, it argued this was necessary to aid in dealing with the current backlog of dormant applications and put in place more severe penalty provisions for abusive claims.

However, the applicants argued that the respondent failed to acknowledge and accept what the major contributing factors to the backlog are. These factors include the respondent’s decision to close Refugee Reception Offices in certain urban areas, its inefficient adjudication processes, and its lack of capacity to deal with the asylum applications.

The Consortium for Refugees and Migrants in South Africa was admitted as an amicus curia in the matter and put forward submissions that these “abandonment” provisions were not in the best interests of children as they would result in children becoming stateless and being at risk of statelessness. 

International obligations

In its assessment of the matter, the court confirmed South Africa’s responsibility to comply with its international obligations and to establish systems and allocate resources thereto. The impugned provisions constitute a significant limitation on the right to non-refoulement, because they had the potential to force an asylum seeker to return a country they previously fled from and face further persecution. A bureaucratic review by the Standing Committee on Refugee Affairs cannot serve as a legitimate constitutional basis for limiting the right to non-refoulement.

The court therefore held that the “abandonment” provisions were arbitrary as asylum seekers would be deported based on external circumstances, such as failing to renew their permit instead of the merits of their claim. This would result in a violation of the core principles of refugee law, which are to ensure to ensure forced migrants are awarded the full protection of the Constitution, until the merits of their claims have been adjudicated.

It was therefore declared that:

• Sections 22(12) and 22(13) of the Refugees Act are inconsistent with the Constitution and invalid to the extent that they provide that asylum seekers who have not renewed their visas in terms of section 22 of the Refugees Act within one month of the date of expiry, are considered to have abandoned their asylum applications.

• The state is to amend and ameliorate the impugned provisions, in line with the spirit of the Constitution.

• Regulation 9 and Form 3 are inconsistent with the Constitution and invalid and reviewed and set aside.

• The order of invalidity referred to the Constitutional Court for confirmation.

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Home affairs ramps up biometrics-driven movement system

IT Web | 10 May 2023

The Department of Home Affairs (DHA) is looking to increase coverage of its Biometric Movement Control System (BMCS) across all ports of entry during the 2023/24 financial year.

This, up from the 34 ports of entry the system currently covers, revealed Thulani Mavuso, deputy director-general for institutional planning and support at the DHA.

The department today briefed Parliament’s Portfolio Committee on Home Affairs on progress in regards to the implementation of the system.

Mavuso said the BMCS deployment included the creation of user profiles, training of users and change management. Meanwhile, in other ports, the department had to upgrade the network capacity and backup power.

“We envisage 100% deployment of BMCS to 72 ports by 31 March 2024,” said Mavuso. “In the 2023/24 financial year, the system will be rolled out in the remaining 38 ports of entry.

“There are some ports where we are trying to install new infrastructure; for example, Mossel Bay and Port of Ngqura. In the other areas, we will be upgrading what we already have on the ground.”

He noted the department wants to finalise the upgrades in the first two quarters of the 2023/24 financial year.

The project was initiated to replace the enhanced Movement Control System (eMCS) by capturing the biometrics of travellers coming into the country, explained Mavuso.

It will replace the eMCS, which has reached its end of life. The eMCS was implemented just before the World Cup in 2010, with enhancements in 2013, he told MPs.

The BMCS aims to enable the capturing of fingerprint and facial biometric data for all travellers who enter and exit SA. It also serves to trace the movement of travellers in the country, aHome affairs ramps up biometrics-driven movement system

IT Web – 10 May 2023

The Department of Home Affairs (DHA) is looking to increase coverage of its Biometric Movement Control System (BMCS) across all ports of entry during the 2023/24 financial year.

This, up from the 34 ports of entry the system currently covers, revealed Thulani Mavuso, deputy director-general for institutional planning and support at the DHA.

The department today briefed Parliament’s Portfolio Committee on Home Affairs on progress in regards to the implementation of the system.

Mavuso said the BMCS deployment included the creation of user profiles, training of users and change management. Meanwhile, in other ports, the department had to upgrade the network capacity and backup power.

“We envisage 100% deployment of BMCS to 72 ports by 31 March 2024,” said Mavuso. “In the 2023/24 financial year, the system will be rolled out in the remaining 38 ports of entry.

“There are some ports where we are trying to install new infrastructure; for example, Mossel Bay and Port of Ngqura. In the other areas, we will be upgrading what we already have on the ground.”

He noted the department wants to finalise the upgrades in the first two quarters of the 2023/24 financial year.

The project was initiated to replace the enhanced Movement Control System (eMCS) by capturing the biometrics of travellers coming into the country, explained Mavuso.

It will replace the eMCS, which has reached its end of life. The eMCS was implemented just before the World Cup in 2010, with enhancements in 2013, he told MPs.

The BMCS aims to enable the capturing of fingerprint and facial biometric data for all travellers who enter and exit SA. It also serves to trace the movement of travellers in the country, as well as identify both citizens and foreign nationals to improve national security.

According to the DHA, development of the system was completed in 2021. A pilot project was then implemented at the four airports: OR Tambo International Airport, Cape Town International Airport, King Shaka International Airport and Lanseria.

Commenting on some of the challenges the department has encountered with the implementation of BMCS, Mavuso listed inadequate networking bandwidth at some of the ports, especially in the previous (2022/23) financial year.

“We have had some delays with some of the ports that needed to be upgraded. For example, in Kosi Bay there were issues, so we ended up getting one of the telcos to help install connectivity there.”

He also noted the negative impact of load-shedding on the rollout of the project in some areas due to lack of backup power.

“We are working with the Border Management Authority and immigration services to ensure we install alternative power generation in all ports of entry.”

Other challenges include change management and insufficient capacity of staff at some of the ports, he concluded.

www.samigration.coms well as identify both citizens and foreign nationals to improve national security.

According to the DHA, development of the system was completed in 2021. A pilot project was then implemented at the four airports: OR Tambo International Airport, Cape Town International Airport, King Shaka International Airport and Lanseria.

Commenting on some of the challenges the department has encountered with the implementation of BMCS, Mavuso listed inadequate networking bandwidth at some of the ports, especially in the previous (2022/23) financial year.

“We have had some delays with some of the ports that needed to be upgraded. For example, in Kosi Bay there were issues, so we ended up getting one of the telcos to help install connectivity there.”

He also noted the negative impact of load-shedding on the rollout of the project in some areas due to lack of backup power.

“We are working with the Border Management Authority and immigration services to ensure we install alternative power generation in all ports of entry.”

Other challenges include change management and insufficient capacity of staff at some of the ports, he concluded.

www.samigration.com

Western Cape concerned about high rejection rate of e-visas

BL Premium | 05 May 2023

Over half of e-visa applications are rejected, because they were not processed in time

The poor performance of the department of home affairs in the issuance of e-visas is of great concern to Western Cape finance & economic opportunities minister Mireille Wenger, who says this hampers tourism recovery in the country.

She noted on Wednesday that according to a presentation made by the department in the National Council of Provinces, 58% (3,697) of failed e-visa applications totalling 6,329 were rejected because the date of travel had already passed.

“They simply weren’t got to in time,” Wenger said.

“This follows an earlier revelation by the same department that, at that time, only 48.7% of all e-visa applications received had been processed. It was further revealed that of those that had been processed, only 3.2% of the total received had been granted.”

Wenger said e-visas were intended to provide a convenient option for visitors to make their applications online, instead of having to visit an SA mission abroad. Fourteen countries are eligible for e-visa applications: Cameroon, China, the Democratic Republic of the Congo, Egypt, Ethiopia, Kenya, India, Iran, Mexico, Nigeria, the Philippines, Pakistan, Saudi Arabia and Uganda.

‘Deeply concerning’

“It is deeply concerning that inefficiencies in our e-visa regime continue to add a barrier to our tourism recovery, and our drive to increase connectivity within the African continent and attract more African tourists to our destination. This should be fully enabled by our visa regime, and not restricted, as is currently the case,” Wenger said.

“While the recent commitments from President Cyril Ramaphosa to address the serious issues with the visa system are welcomed, words no longer count. Decisive action is required along with timelines to address the well-known challenges,” she said.

According to another statement, the department said in a presentation to the provincial standing committee on finance, economic opportunities & tourism on Wednesday that it would finalise implementation of the remote working visa next month, and that the state law adviser approval process was under way.

Decisive action is required along with timelines to address the well-known challenges.

Mireille Wenger, Western Cape finance and economic opportunities minister

A remote working visa was a no-brainer, DA Western Cape MPP and tourism spokesperson Cayla Murray said. “The Vulindlela report on visa reform ... [received only this week], despite already writing to the president in February, confirms as much, and recommends the implementation of a remote working visa with suitable requirements such as proof of employment, a minimum level of income, and health insurance.

“I am hopeful that home affairs will stick to its commitment, as this will help to boost job creation in our province. It must be noted, however, that such commitments from ANC-led national government departments often aren’t worth all that much,” Murray said.

The DA says it will make sure that this shortcut to economic growth is implemented as soon as possible, and will use every mechanism available to hold DHA to account should they not live up to their commitment.

In March the department granted relief to applicants for long-term visas or waivers who were awaiting the outcomes of their applications by extending the blanket concession to December 31. This was due to a backlog in processing waiver and visa applications by foreign nationals. The backlog, which runs into the tens of thousands and extends back to 2016, is due to a lack of personnel in the department and the lengthy procedures involved in processing an application.

The department said in March it only expected to clear the backlog in 15 months’ time.

The total backlog for permanent residence permits in the system amounted to 49,529, with 40,340 of those at end-May 2022 outstanding for more than eight months. Of these, 3,524 date back to 2016; 5,187 to 2017; 7,303 to 2018; 10,621 to 2019; 2,968 to 2020; three to 2021 (when the world was in the grip of the Covid-19 pandemic) and 10,759 to 2022.

With regard to temporary residence permits, the backlog of applications totals 75,814, with 23,988 having been received within eight weeks by March 1.

www.samigration.com

Solutions to skills crisis evade only the government

Business Day | 05 May 2023

The inertia in the face of excellent offers of help is just baffling

SA has an unemployment crisis. It also has a skills crisis. This toxic combination is slowly poisoning the economy and raising the risk of a democracy-threatening social explosion. The proportion of South Africans with no hope for a better future and little to lose has probably already reached the tipping point.

All of the above is trite — hardly a day goes by without some or other political analyst or business leader warning that we are “on the precipice”. The solutions to the unemployment crisis are no secret either. But they demand political will, and that is evidently in short supply. It is also not a crisis that can be resolved in a hurry, even with all the will in the world.

At core, both SA’s jobless crisis and the shortage of appropriate skills to fill those positions that do exist are a result of a failure of the basic education and technical training system. That too will not be resolved overnight, even if the government were to tackle impediments such as the shortage of appropriate institutions and qualified teachers, excessive trade union influence and inadequate infrastructure.

But there is low-hanging fruit, and it is bewildering that a government faced with such an obvious existential crisis has been so slow to pluck it. Life Healthcare CEO Peter Wharton-Hood recently wrote an impassioned piece for publication in Business Day appealing to the government to allow the private healthcare sector to help it deal with the critical shortage of nurses in SA, which on the current trajectory is expected to reach as many as 100,000 by 2030 (“SA needs to invest in nurses to avoid a healthcare catastrophe”, April 12).

Private healthcare groups have both the facilities and the capacity to train several thousand new nurses each year, yet SA Nursing Council and Council on Higher Education regulations place strict limitations on their ability to do so, for no rational reason. Failing to deliver on your constitutional obligation to govern is bad enough, but deliberately preventing others from filling the void that is left by that failure is unforgivable.

The skills shortage in business at senior and middle management level, especially when it comes to technical qualifications and experience, has been exacerbated by emigration. It is sensible, therefore, to make it as easy as possible for firms to bring in scarce skills from abroad. Yet it remains exceedingly difficult for foreign work visa applicants to obtain certainty that they will be allowed to stay in SA.

The department of home affairs recently announced that holders of long-term visas that are due to expire, and those awaiting the outcome of their applications for work visas, now have an extension to end-December. But with a backlog that exceeds 75,000 applications, some dating as far back as 2016, few are holding their breath

There is a global talent shortage, particularly in areas such as IT, finance, engineering and health care. It makes no sense to simultaneously fail to address the “push” factors driving skilled South Africans overseas, and make it unreasonably difficult for those who have the skills we need, to live and work in this country.

www.samigration.com