The Department of Home Affairs clarifies any confusion that may have been caused by the statement issued by The African People First Organisation.

The Department of Home Affairs clarifies any confusion that may have been caused by the statement issued by The African People First Organisation

DHA | 17 May 2023

The Department of Home Affairs has been made aware of a media statement doing the rounds on social media about a meeting the Minister held with representatives of the African People First which purports to communicate the outcomes of that meeting.

To set the record straight, the Minister did meet the representatives of the African People First, at their own request. In the normal course of his work, the Minister does honour requests for meetings, for one reason or the other, from various individuals, institutions and organisations that request to meet with him. He honours the requests only if they are appropriate.

In this instance, the Minister has neither appointed nor delegated the African People First to speak on his behalf.

In that meeting, the Minister outlined the general provisions of the Citizenship Act of 1995, the Refugee Act of 1998 and the Immigration Act of 2002. The Minister further outlined the international conventions and protocols on refugees and asylum seekers which South Africa has ratified.

The Minister did not prescribe any special route for any group of migrants but was outlining the general provisions in the laws highlighted above.

Immigration laws of the country apply to everyone equally. There are no alternative pathways to citizenship. All applicants must meet all the requirements applicable to the permit they are applying for.

Any migrant who has applied for an extension of their permit is issued with a receipt whose authenticity can be verified by officials in the Inspectorate Unit of the Department. Authentic receipts give the holders a legal right to be in the country, pending the finalisation of their application.

To ensure that immigrants have access to services that help them to legalise their stay in the country, the Department has five Refugee Reception Centres where they can apply. Some of these centres have self-help kiosks which means that applicants can apply for the extensions themselves without requiring assistances of officials. There is also an online service for the renewal of permits for qualifying applicants.

On the issue of children born of migrant parents, who when they turn the age of majority in South Africa (18), can apply for citizenship, the Minister was just outlining the outcome of a court ruling to that effect.

When reading the contents of the African People First statement, the Department is worried they could easily be misconstrued as the Minister entering into some special arrangement with a particular grouping of people.

There is no such. All applicants must meet the conditions of the permit they are applying for in full.

'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.

www.samigration.com

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.

www.samigration.com

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