Faith in Canadian visitor visa system thin as twice-rejected South African orphan launches federal challenge

CBC News | 10 Mar 2023 

Swamped visitor visa process under fire from B.C. family of nine-year-old girl and prime minister

Lisa Pyne-Mercier and her great-niece, Ryleigh Ridland. Pyne-Mercier has spent the last two years fighting legal red tape to have Ridland, whose mother died in South Africa in 2021, come live at her B.C. home. (Submitted by Lisa Pyne-Mercier)

After a two-year fight to bring her to Canada, the family of a nine-year-old South African orphan is asking the federal court for a judicial review of her visitor visa application that was rejected last October. They want that rejection overturned to open the door to bring her to her new home.

Ryleigh Ridland is caught in a snarl of red tape and her family fears that her two-year bid to get into the country will now get lost in an unprecedented surge of temporary visitor applications — as world events send more people racing to apply for temporary access to Canada. The backlog of applications spiked to well over 1.2-million in early March, according to data from the ministry of Immigration, Refugees and Citizenship Canada (IRCC).

Ridland's great aunt, Lisa Pyne-Mercier, has been fighting to bring the girl to Canada ever since January 2021, when Ridland, then just seven years old, was found alone days after her mother died unexpectedly on their remote South African farm property. Ridland's father relinquished his parental rights in a recent affidavit and South African courts named Pyne-Mercier the girl's legal guardian, but she says she is still facing frustrating delays. 

Ridland's temporary visitor application was rejected on Oct. 17, 2022, and a bid for a study visa was rejected on Nov. 3, 2022. Then an application for permanent residence on humanitarian and compassionate grounds was refused on Jan. 4.

Ridland is currently living with a foster family in South Africa. Pyne-Mercier has visited her there and the two often communicate via video chat.

Michael Battista, Ridland's new Toronto-based lawyer, hopes to argue in federal court that the immigration officer with IRCC who deemed her ineligible for a temporary visitor visa made an error. 

He filed an appeal with the federal court on Feb. 22 requesting a judicial review of her rejected temporary visa application on the grounds that the initial denial failed to consider "relevant evidence."

He said the application was rejected because immigration authorities suspected Ridland would stay illegally, beyond the usual allowed time of six months. 

The lawyer, who is also a professor at the University of Toronto's Faculty of Law and Munk School of Global Affairs and Public Policy, has written about what he sees as the need to stop tying visitor eligibility to suspicions that people may overstay their welcomes.

Ridland is shown here in South Africa, where she is staying with a foster family. Her Canadian relatives are asking the federal court for a judicial review of her visitor visa application that was rejected last October. (Submitted by Lisa Pyne-Mercier)

"It's infuriating. It's torture," said Pyne-Mercier, who has spent thousands of dollars and worked for years to try to have Ridland come to live at her Shawnigan Lake, B.C., home while she applied for permanent residency. 

She says she's worried that waves of new applications driven by ongoing international emergencies will bury her great niece's bid and leave the girl separated from relatives even longer than she has been.

Ridland's visa application rejection is just one among thousands filed to a strained, backlogged system that's come under attack from applicants, MPs and even the prime minister himself.

Trudeau signalled need for softer approach

In February, Justin Trudeau said he is pushing the Ministry of Immigration, Refugees and Citizenship to soften its approach to processing visa applications to put less focus on the risk of visitors overstaying short-term visas.

"We're also trying to do a better job around temporary visas," Trudeau said in remarks during an hour-long meeting with 25 Algonquin College Nursing students on Feb. 10 in Ottawa.

"The system — I'll be honest — is still based around, 'Prove to me that you won't stay if you come,' right?" he said, arguing that it is easier for applicants to "convince" immigration officials to grant them visas if they have "a good job and a home and a house and a good status back home."

During a question and answer session with the prime minister, several international students mentioned having visa issues. 

Prime Minister Justin Trudeau shakes the hand of a nursing student at Algonquin College in Ottawa on Feb. 10. (Spencer Colby/The Canadian Press)

One student described feeling isolated during a long hospital stay during which she said her mother tried twice to get a visa to visit, but was rejected.

"It would seem unfair to Canadians and to all sorts of people if there was a back door, but I absolutely hear you. Your mom should have been able to come and see you," Trudeau said.

Trudeau and Immigration Minister Sean Fraser declined interview requests about Ridland's case.

World events overburdening system

Liberal MP Julie Dzerowicz, chair of the Liberal immigration caucus, says applications to visit Canada that don't involve an immediate threat to life are probably not the top priority at this time.

She's one of a group of Liberal MPs who welcomed Trudeau's recent call to change the slow, restrictive system that she says is under pressure due to the war in Ukraine, the situation in Afghanistan and an ongoing crisis in Turkey and northern Syria following two massive earthquakes last month that killed tens of thousands of people and left hundreds of thousands more displaced. 

Last March, Canada launched a fast-track option for Ukrainians fleeing the war. Dzerowicz says it's "right" for Canada to prioritize such cases.

A woman carries her child as they flee a residential building hit by a Russian rocket in Kharkiv, Ukraine, on Jan. 30. A group of Liberal MPs say they welcome Trudeau's recent call to change the slow, restrictive immigration system that is under significant pressure due to world events, including the war in Ukraine. (Andrii Marienko/The Associated Press)

"When someone's in imminent danger, I have seen our government move mountains," she said. 

The pressure to speed the process has the immigration ministry considering unusual options.  

In January, the Globe and Mail reported a leaked draft policy memo that appeared to suggest that the ministry was considering relaxing eligibility requirements to help deal with a backlog of more than 700,000 applications as of December 2022.

As of March 3, that backlog had grown to 1.2 million applications for temporary residence, according to IRCC data provided by the ministry. They include applications for study and work permits and visitor and temporary resident visas. 

Of the 3.5-million temporary residence applications received in 2022, IRCC data shows a total of 2.1 million were approved.

Fraser's press secretary Bahoz Dara Aziz said in an email that "enormous" progress has been made on the backlog with more than 500,000 applications processed in recent months. She said the ministry has hired 1,250 new staffers and is working to digitize the application process.

B.C. woman fights to bring orphaned niece to Canada

A Canadian is fighting to bring her nine-year-old great-niece to Canada, after being named the child's legal guardian when her mother died. But she says the girl is being left in limbo because of Canadian immigration rules.

That is small comfort for Pyne-Mercier, who just wants to be reunited with Ryleigh. 

"They are separating us as a family. This is a little girl. She doesn't have anyone or anything," said Pyne-Mercier, noting that it doesn't seem right that a nine-year-old with no other family would have such a hard time coming to Canada. "That's unfair." 

www.samigration.com

Zimbabwean gov't to begin identifying locals needing help to relocate from South Africa

CGTN |  Xinhua News Agency | 09 March 2023

The Zimbabwean government will begin a 20-day physical mapping exercise on March 12 to identify locals who wish to be helped in relocating from neighboring South Africa before their special work permits expire on June 30.

About 180,000 holders of the Zimbabwe Exemption Permits (ZEP), which allowed them to work in South Africa under a special dispensation, will have to return home at the expiry of the permits unless they acquire special skills visas that qualify them to stay on.

These are part of an estimated 800,000 Zimbabweans staying in South Africa, most of them illegally and surviving on menial jobs where they are often taken advantage of by unscrupulous employers.

A public notice, issued on Monday by Zimbabwean Ambassador to South Africa David Hamadziripi, said the government would help repatriate its nationals who wanted to voluntarily leave the country, as had been previously announced.

"The Embassy of the Republic of Zimbabwe in South Africa wishes to recall its announcement on 2 February, 2023, that the Government of Zimbabwe has taken a decision to assist and facilitate the repatriation of its nationals, holders of the Zimbabwe Exemption Permits, who voluntarily wish to return home before the expiry of their permits on 30 June, 2023," the notice said.

"In that regard, an in-person/physical mapping exercise will be undertaken across all the provinces of South Africa from 12 to 31 March, 2023, to identify and register ZEP holders and their dependents who may require assistance or facilitation to return to Zimbabwe," the notice said, giving locations where the exercise would be done.

Initially, the permits were to expire on Dec. 31, 2022, but the South African government extended them to the end of June to allow holders to apply for mainstream work permits.

However, there have been reports that the number of applicants has remained low because the Zimbabweans are not sure that they can convince the authorities to keep them in the country.

One of the affected Zimbabweans said he would definitely be returning home in June because he did not possess a special skill that would qualify him for a work visa.

"Also, employers must show proof that they are paying you a salary that is in line with the standard one, for example, for a teacher. To avoid this, companies have to apply for waivers for employees. It is a complicated process," said the Zimbabwean who declined to be named.

Zimbabweans and other foreigners have often come under attack from xenophobic South Africans who allege that they are stealing their jobs.

www.samigration.com

LGBTIQ+ migrants and asylum seekers in South Africa: major new study identifies a diverse, wide-spread community

African Security | Published: March 5

Authors:

John Marnell.  Doctoral Researcher at the African Centre for Migration & Society (ACMS), University of the Witwatersrand

B. Camminga. Research associate, University of the Witwatersrand

Thea de Gruchy. Researcher, University of the Witwatersrand

Disclosure statement

This project was made possible through research funding from the Williams Institute Global LGBTI Small Grants Program, the Open Society University Network Engaged Research Fund and the Other Foundation. Thea de Gruchy receives funding from the National Institute for Health and Care Research (NIHR).

Partners:

• University of the Witwatersrand
• University of the Witwatersrand provides support as a hosting partner of The Conversation AFRICA.

The Conversation is funded by the National Research Foundation, eight universities, including the Cape Peninsula University of Technology, Rhodes University, Stellenbosch University and the Universities of Cape Town, Johannesburg, Kwa-Zulu Natal, Pretoria, and South Africa. It is hosted by the Universities of the Witwatersrand and Western Cape, the African Population and Health Research Centre and the Nigerian Academy of Science. The Bill & Melinda Gates Foundation is a Strategic Partner.

Since 1998, South Africa has recognized persecution based on gender and sexuality as legitimate grounds for asylum. This makes it the only African country to formally extend refugee protection to lesbian, gay, bisexual, transgender and intersex (LGBTI+) persons. However, as research shows, the promise of freedom contained in its Refugees Act is yet to materialise for LGBTI+ people. Scholars, activists and human rights bodies continue to document worrying trends in the asylum system. A recent analysis of refugee status denials involving LGBTI+ applicants identifies egregious misapplications of domestic and international law. Other studies suggest that homophobia, transphobia and corruption are common within the Department of Home Affairs, which is responsible for managing immigration and asylum.

These barriers to protection make it difficult for LGBTI+ asylum seekers to regularize their legal status, access services or find jobs. This increases their vulnerability to discrimination, exploitation, poverty and homelessness.

Earlier studies show that LGBTI+ people who move to South Africa face unique challenges. But they do not say much about the size and constitution of this population or the degree to which certain social, legal and economic issues affect it. There are two reasons for this. First, research to date has been qualitative, small in scale and focused on particular cities or subgroups. Second, South Africa, like many refugee-hosting countries, does not release disaggregated data on grounds for asylum.

The absence of reliable quantitative data makes it difficult – if not impossible – to hold Home Affairs, the police and other state entities to account. When reports emerge of LGBTI+ migrants and asylum seekers being mistreated, the government can dismiss these incidents as isolated or anomalous.

To respond to this knowledge gap, we developed a survey tool that could be distributed using WhatsApp. This allowed us to collect data from people who might otherwise be unwilling or unable to participate in research. We sourced information from 381 respondents, making it the largest data set of its kind in South Africa.

Our data shows that South Africa hosts significant numbers of LGBTI+ migrants and asylum seekers – something long suspected but difficult to prove. It also shows that this population is more dispersed and diverse than previously thought. Where someone lives, how they identify and how long they have been in the country can affect their ability to apply for or renew documentation or to generate income. It can also increase their susceptibility to violence and harassment.

The search for more data

Our goal was to collect baseline data that could not only augment existing research but also guide and support future advocacy work. As well as capturing basic demographic information, the survey posed simple questions about respondents’ gender, sexuality, documentation status and reason for migrating.

We wanted the survey to reach as many people as possible so we partnered with three well-known activists: Thomars Shamuyarira, Masi Zhakata and Anold Mulaisho. Each coordinates a network of LGBTI+ migrants and asylum seekers in a different part of the country. The community fieldworkers shared information about the project and enrolled anyone who wanted to take part.

We opened the survey to all LGBTI+ people who have crossed an international border, regardless of their documentation status. We did this because the distinction between migrants and asylum seekers is blurred in South Africa. Failings in the asylum system push those who may be eligible for refugee protection into the migration system or force them to remain undocumented. Official legal categories can also differ from people’s experiences and self-identifications.

Old issues, new insights

The survey results provide further evidence that South Africa is failing to meet its legal obligations. It also offers surprising insights into respondents’ identities, locations, motivations and experiences. We limit our discussion here to five key findings:

Geographic spread

Our analysis shows that LGBTI+ migrants and asylum seekers are dispersed across the country far more widely than first thought. It is commonly believed that LGBTI+ people move to major economic hubs, such as Johannesburg and Cape Town, which are perceived to be more “gay friendly” than other locations. As a result, services targeting them are concentrated in these areas.

The number of survey respondents living outside metropolitan areas suggests a need to reconsider how resources and services are delivered.

Diversity of language

The survey responses show that LGBTI+ migrants and asylum seekers use a wide range of terms to describe their identities. Most remarkable was the use of terms commonly understood to indicate gender – such as “transgender” – to signal sexuality, and vice versa. Of equal interest was the widespread use of “non-binary”, a relatively new term in South Africa, and the limited use of “queer”, a much older term commonly used in advocacy circles.

This finding is of interest to researchers, activists, lawyers, service providers, state bureaucrats and other stakeholders who engage with this population.

Gender-based claims

South Africa extends protection from persecution based on both gender and sexuality. However, previous research indicates that transgender and gender-diverse people have had to claim asylum – or have been classified as claiming asylum – on the basis of sexual orientation.

Our data suggests a shift in this pattern. A number of respondents reported claims based on gender identity or expression. The long-term impacts of this remain to be seen, such as how these claims are treated by Home Affairs and whether they result in refugee status being conferred. It also raises questions about what kinds of advocacy are necessary to ensure these outcomes.

An inaccessible and confusing system

Most respondents reported being undocumented, an anticipated result given the barriers obstructing LGBTI+ people from claiming protection in South Africa. More interesting was the number of answers that seem to indicate confusion over asylum-related terms, categories, systems and processes. This tells us that programmes intended to inform and support LGBTI+ asylum seekers are not reaching all segments of this community.

There were many people who wanted to participate in the project but could not. Sometimes this was due to language issues, but mostly it was because they had a SIM card but no cellphone. This is concerning given how much advocacy and outreach work is delivered via digital channels.$

Where to from here?

A survey such as this cannot tell us everything, but it does provide crucial data on an under-researched and largely invisible population. Our hope is that state agencies use these findings to develop sensitisation programmes and improve service delivery. At the very least, this means treating LGBTI+ migrants and asylum seekers with dignity, respect and compassion, and upholding the rights guaranteed in law. Only then will the dream of freedom be realised for LGBTI+ people who move to South Africa.

www.samigration.com

Who is defined as an illegal worker?

SA Migration | 10 March 2023

Who is defined as an illegal worker?

1. A person who has not entered South Africa through one of its official ports and presenting the necessary documents.

2. A person who is not undertaking the same job as endorsed in the visa.

3. A person who is not using a work permit in SA.

Can you employ someone without a work permit?

No, you are not allowed to employ someone without a South African work visa as this is illegal and the company or person can be fined or face imprisonment. The responsibility falls on the employer when they decide to employ a foreigner and the law does not penalize the foreigner for accepting or working with no visa.

It’s not an offence when you do the following:

• Accepting a job offer with a visa

• Signing a contract without a visa

Employers must remember that a foreigner who is employed without a work visa or whose work visa expires during his or her employment is still regarded as an employee of the company. The labour relations act stipulates that an employer may not dismiss a foreigner due to an expired visa or who is employed without a work permit.

An accompanying spouse may not work in South Africa, therefore there is no accompanying spouse work permit in South Africa. Accompanying spouses must apply for their own work visas.

Therefore it’s best to ask the foreign applicant whether he or she is in the process of applying for a visa or the company can offer to assist the person in obtaining a work visa, provided they qualify for a South African work visa. This way the employer is not held responsible and caught off guard when the Department of Home Affairs investigates the company or the foreigner. You should not assist a foreigner if they are illegal.

Employers need to verify the immigrant’s status when they produce a work visa and our guide: “How to spot a fake work permit in South Africa“, this guide will give you all the tips you need to look for when looking at a visa.

If the applicant does not qualify for a visa, the next option would be for them to apply for an asylum or refugee visa but this can take a while before they the visa for this.

What are the visa options for applicants?

1. General work visa South Africa (How to apply for a general work permit in South Africa)

2. Intra company transfer visa

3. Critical Skills Visa

4. Corporate Workers Visa

What are the consequences of hiring illegal immigrants in South Africa?

The immigration act of South Africa stipulates that anyone who knowingly employs foreign applicants without work permits will be in direct violation of the act and will be fined or might face imprisonment which will not exceed 12 months for their first offence.

It is easy to get caught by the Department of Home Affairs, one of the company’s employees might report this and DHA will visit your workplace unannounced. This is why you should always follow the correct procedure even though it might take longer but it’s the best way to stay on the right side of the law and prevent any legal proceedings.

Therefore it is important to ensure that all foreign employees’ visas or permits are valid and that they are taking responsibility to renew their visas before it expires. When applying for a work visa, the company drafts an undertaking letter to DHA ensuring that at all times they’ll ensure that the applicant’s visa remains valid.

The Department of Home Affairs has over the past few years cracked down on employers who are illegally employing foreigners which is has stemmed from audits and investigations into suspected companies. Do not at any moment expect that DHA is ignoring the fact there are many illegal workers in SA and they are slowly but surely approaching it on a case by case basis.

www.samigration.com

Work Visa

SA Migration | 10 March 2023

Want to know more about work visas:

1. What you need to know about work permit South Africa.

2. Apply for work permit South Africa for Zimbabweans

3. Apply for a work permit South Africa for Malawians

4. Who is defined as an illegal worker?

5. A person who has not entered South Africa through one of its official ports and presenting the necessary documents.

6. A person who is not undertaking the same job as endorsed in the visa.

7. A person who is not using a work permit in SA.

Can you employ someone without a work permit?

No, you are not allowed to employ someone without a South African work visa as this is illegal and the company or person can be fined or face imprisonment. The responsibility falls on the employer when they decide to employ a foreigner and the law does not penalize the foreigner for accepting or working with no visa.

It’s not an offence when you do the following:

• Accepting a job offer with a visa

• Signing a contract without a visa

Employers must remember that a foreigner who is employed without a work visa or whose work visa expires during his or her employment is still regarded as an employee of the company. The labour relations act stipulates that an employer may not dismiss a foreigner due to an expired visa or who is employed without a work permit.

An accompanying spouse may not work in South Africa, therefore there is no accompanying spouse work permit in South Africa. Accompanying spouses must apply for their own work visas.

Therefore it’s best to ask the foreign applicant whether he or she is in the process of applying for a visa or the company can offer to assist the person in obtaining a work visa, provided they qualify for a South African work visa. This way the employer is not held responsible and caught off guard when the Department of Home Affairs investigates the company or the foreigner. You should not assist a foreigner if they are illegal.

Employers need to verify the immigrant’s status when they produce a work visa and our guide: “How to spot a fake work permit in South Africa“, this guide will give you all the tips you need to look for when looking at a visa.

If the applicant does not qualify for a visa, the next option would be for them to apply for an asylum or refugee visa but this can take a while before they the visa for this