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Foreign nationals file class action against Home Affairs to avoid separation from their children

Groundup 26 September 2021  

Forced to stay in unbearable marriages and faced with the constant fear of being separated from their children, three foreign nationals have asked the Cape High Court to declare parts of the Immigration Act unconstitutional as it requires them to leave the country if they get divorced and leave their children behind.

In a desperate fight to stay with their kids, three single parents faced with having to leave South Africa immediately without their children, have filed a class action suit against Department of Home Affairs in the Cape High Court.

In court papers the parents, represented by immigration attorney Gary Eisenberg, described how they are forced to stay in marriages characterised by verbal abuse, drug addiction and abandonment to remain with their children as South Africa’s immigration laws make no provision for their situation.

The Department has indicated that it will oppose the legal action.

The Immigration Act does not provide a visa for the purpose of parenting South African children by foreign nationals once a spousal relationship breaks down. As a result foreigners must leave the country regardless of whether they are the primary caregiver of the children.

The court has been asked to declare these parts of the law unconstitutional and order Parliament to remedy the defects and also for an order that will allow for the three parents to stay in the country.

The names of the applicants are known but withheld to protect the identities of their children.

One of the applicants, a 45-year old German woman, from Kommetjie said she has two sons, aged 10 and 11, who live with her.

She said her husband became aggressive and abusive. “Things have deteriorated to such an extent that the children have no desire to see [him]…He is an absentee father and I am, in effect, a single mother.”

She said while her husband provides minimal financial support she cannot get a divorce as she fears she will be forced to leave the country without her children who are South African citizens.

Her visa will expire in November.

“I should be leaving South Africa immediately … it would be tantamount to abandoning my children.”

She said while she applied for permanent residence her application will likely not be finalised before 2023.

“I am at a loss for what to do,” she added. “It is [the children] who will suffer the most.”

Another applicant, a 46-year old French citizen, has separated from his wife after she became addicted to tik and alcohol and had abandoned him and their two sons.

He is currently in South Africa on a visitors visa and is not allowed to work.

“I can never forgive her for her final abandonment of our two minor children, a trauma that will take them a long time to resolve. I cannot again leave them alone … I am their father,” he said.

The third applicant, a 30-year old boxing coach from Zimbabwe was declared “undesirable” in South Africa and has been banned from returning until 2024.

He has a two year old son and was paying for the flat where the boy was living with his mother, paid maintenance and saw him every day.

In April 2019 he was apprehended at the airport and in terms of a new directive he was declared undesirable for “overstaying” and deported. He can only return to South Africa legally in April 2024.

“I was forced by the policewoman and her superior, and by Passport Control officials, to buy a one-way air ticket to Zimbabwe. I was given no opportunity to make representations … if I did not leave that day, I would be incarcerated and I preferred to leave rather than to sit in jail.”

He admits that he returned to South Africa later in 2019 but did not pass “through passport control.”

“This was the only way I could continue to provide for [my son] and remain part of his life.”

He has also requested the court that this new directive, be declared invalid and set aside as it denies people access to a administrative action if they wish to dispute the finding that they are undesirable.

No date has yet been set for the hearing

www,samigration.com

‘Why I can’t leave’: Home Affairs is part of the problem for refugee and migrant women stuck in abusive situations

Daily Maverick – 20 September 2021

Under lockdown, with no in-person services available to refugees and asylum seekers at Home Affairs, a woman who wants to separate her documentation from that of an abusive husband or partner cannot do so.

“I cannot leave, because of my children.”

“There is no place for me to go.”

“My documents are all linked to my husband, so if I left I would be without legal status in South Africa.”

“My job would not support me and the children if we left, so we have to stay.”

Many refugee, asylum seeker and migrant women have experienced many departures – departure from their home country, departure from their home, departure from the comfort and familiarity of speaking their home language, of being surrounded by those they know or feel at home with. 

These departures are by no means easy. They are acts of faith, journeys of hope and often grasps at the chance of a better, safer future, for themselves and their families. 

However, there is one other departure that is often not possible for (mainly) women who find themselves in another country far from their hometowns, their mother tongues and the support networks they grew up with – leaving a situation where they are at risk of sexual and gender-based violence (SGBV). 

For the 16 Days of Activism Against Gender-Based Violence campaign in 2020, the Scalabrini Centre of Cape Town, in partnership with UNICEF, ran a communications campaign on SGBV to highlight the resources available for migrants, refugees and asylum seekers. Through the campaign we found that while some resources are made available to victims and survivors of SGBV, many of these are contingent upon an individual having valid documentation in South Africa.

Yet it is often those without valid documentation who are most at risk. Perpetrators of SGBV do not distinguish between citizens and non-citizens, or those who have an ID and those who don’t. Those who are not citizens and might not have an ID have less access to support, less recourse and fewer departure options.

Contrary to the claim that “illegal” migrants have chosen to enter the country without the correct papers, the truth of the matter is that there are few who would choose to live in another country undocumented. For many, valid documentation is a luxury. In fact, the lack of papers which afford them the right to work, to study and to access support services is yet another departure – from security, safety and the acknowledgement of their rights as human beings. 

And while the challenge of obtaining documentation has been widely reported, it is still hard to comprehend the complex, contradictory and confusing processes created by Home Affairs for migrants to follow – often to then only reach a dead end. 

During the course of South Africa’s nationwide lockdown in response to the Covid-19 pandemic, this situation has worsened as refugees and asylum seekers have not been able to access in-person services at the country’s refugee reception offices. This initially meant that if an asylum seeker permit or refugee status document expired, its holder could not renew it. In June 2020, the Minister of Home Affairs issued a blanket extension of all asylum and refugee documents that expired during lockdown. This extension was reissued from time to time, with the most recent one providing for an extension to 30 June 2021. 

The services that have not been offered, though, include new asylum applications, as well as family joining, and file separations – services that could mean the difference between someone being able to leave an abusive partner or not.  

“I cannot leave, because of my children.”

Often children are documented through only one parent. If that parent is an abusive partner a file separation and subsequent process of joining the child or children to the other parent’s file have to take place. This cannot happen at present, because Home Affairs’ refugee reception offices are not offering these services and haven’t been providing them since at least March 2020. Moreover, there are often intersecting issues such as financial dependence, child support and family networks that make a departure impossible. 

“I cannot leave, because there is no place for me to go.”

One of the many departures a migrant, asylum seeker or refugee initially makes is leaving their support structures and community behind. Shelters in South Africa, aside from being full, often require a valid document in order for someone to be placed there. Due to Covid-19 they also require a negative Covid-19 test. For some the cost of a Covid test is prohibitive. For others their lack of documentation or access to Home Affairs services in order to obtain the required documentation means they cannot get placed at a shelter. 

The devastating economic consequences of the lockdown, as well as the lack of in-person services at refugee offices, add to the barriers facing asylum seeker, refugee and migrant victims and survivors of SGBV when trying to find a way out of an abuse situation. Subsequently, they are forced to remain in abusive situations without any option to exit. Another departure denied. 

“My job would not support me and the children if we left, so we have to stay.”

Financial dependence and the inability to support their children are often why someone might remain in an abusive situation. This applies regardless of nationality, documentation or immigration status. South African citizens and permanent residents, as well as refugees who have refugee identity documents, have access to support options such as social grants they might qualify for, for example the child support grant. For those without documentation or immigration status, or for asylum seekers, these are not an option. 

Indeed, even the social relief of distress grant created to support people during the lockdown was initially only made available to South Africans and refugees. It took litigation to make it available to asylum seekers and special permit holders as well. These interventions and initiatives, and campaigns like the Basic Income Grant, are key in trying to help some of society’s most vulnerable. They could be vital for victims and survivors of SGBV by providing the potential for a necessary and needed departure from an abusive situation. 

I cannot leave, because my documents are all linked to my husband, so if I left I would be without legal status in South Africa.”

A key intersecting issue can be that many children, and women and children, are documented through the father in a household. In Home Affairs terms this is known as the “principal applicant” or the “main file holder”. This person must always be present when a document is being renewed, following which the dependents in the file receive their renewed document. When faced with the choice between being undocumented or staying in an abusive situation many refugee and asylum seeker women have no options. 

It is an impossible choice. To stay means they remain documented and maintain lawful immigration status in South Africa. To leave means they are rendered undocumented; at risk of possible arrest, detention and deportation; and lose documentation allowing them to work. Under lockdown, with no in-person services available to refugees and asylum seekers from Home Affairs, a woman who wants to separate her documentation from that of an abusive husband or partner cannot do so. 

In South Africa it is reported that between 25% and 40% of women have experienced SGBV or intimate partner violence. It is a systemic and deeply entrenched issue. For refugees, asylum seekers and migrants, it is exacerbated by lack of access to immigration status and documentation. 

If the government were truly committed to combating GBV, one way to support victims and survivors is to ensure that they can access documentation services throughout the country.

www.samigration.com

Residency in limbo: Living in hope of the stamp of approval from South Africa’s Home Affairs

Daily Maverick - 21 September 2021

Years of waiting for permanent residence to be granted, unable to work, open a bank account or sign for a cellphone contract, exact a heavy toll on a person.

“I can’t sign contracts with industry partners. I can’t open bank accounts. I am completely dependent on my partner,” says James (not his real name), who’s been waiting for word on his permanent residence application for several years.

The two established a business that has created five permanent jobs and kept it going during Covid-19 by dipping into their savings. 

“It’s grim,” says Alice (not her real name), who is considering taking the children and leaving South Africa for a country that would allow her to work and support her family.

“My cellphone is not mine… I don’t have a bank account,” says Alice, whose application for permanent residence has been in the system for years.

Jason (not his real name) says he is tired of calling the Home Affairs helpline as the years tick by and his child gets older. 

Daily Maverick reported in late August (Home Affairs, where permanent residency applications go…) that a presidency briefing document to the National Economic Recovery Committee, part of the architecture to drive key structural reforms, advised Home Affairs that “the processing of applications need to resume as soon as possible”.

Home Affairs told Daily Maverick that the backlog included pre-Covid-19 permanent residence applications and that a team had been put together to deal with the 33,700 applications.

With the state of disaster declared in March 2020, Home Affairs suspended the processing of permanent residence applications. However, a June 2021 gazetted directive stated that this would resume on 1 January 2022.

*James and Alice, along with their partners, have invested in South Africa – in the case of Alice, the forex equivalent of well over R9-million over a decade or so. They have created jobs for locals. And yet they, along with tens of thousands of others who have applied for permanent residence, remain in limbo.

Without a permanent residence permit, it’s not possible to work legally, open a bank account or even renew a car licence. It’s illegal to drive an unlicensed vehicle. Some might be rich enough to hire cars, but not everyone is.

When the driver’s licence of a permanent resident applicant’s originating country expires, even renewing an AA-approved international driver’s permit is no longer an option – and with only a temporary permit it’s impossible to apply for a South African driver’s licence. The school run has just become impossible to do legally.  

Day-to-day life is difficult, says Alice: “Because of the situation, I’ve never felt really part of the country. I never felt legitimate.”

Anxiety is also real for James, who says he can’t leave the country pending his still-in-progress application in case he isn’t allowed back in. Never mind having to wait for years for a decision. “All the documents, all the time, all the stress.”

At times, it seems everyone knows someone, or of someone, caught in this bureaucratic loop. And a whole industry seems to have arisen around permanent residence applications.

This includes so-called agents who charge up to R10,000 to ensure the paperwork is put together right and facilitated through VFS Global, the service provider engaged by Home Affairs.

“All permanent residence permits applications must be done online: www.vfsglobal.com/dha/southafrica. Once your application has been submitted online, you need to book an appointment at the nearest Visa Facilitation Centre in which you intend to live and work to submit supporting documents and have your biometrics taken…” according to the Home Affairs website (PRP).

Establishing a business, retiring, having critical skills or being financially independent are grounds to apply for permanent residence under the Immigration Act, according to the Home Affairs site.

“VFS Global is glad to support DHA [Department of Home Affairs] in delivering an integrated service which encourages proactive measures towards delivering a modern and seamless service.”

Pending the official determination of a permanent residence application, the applicant must have a temporary permit. These lapse every two years – and every application not only requires the payment of fees, but also X-rays to prove the absence of TB, a doctor’s report, police clearance certificates from every country lived in since the age of 18, birth certificates, marriage certificates and so on. The list is long. 

And the complaints are endless, as outlined by Twitter user @tomaton following the initial Daily Maverick report:

 @BonganiMrara2 mentioned a relative’s application that has been stuck in the system for three years:

Some people have simply given up, like the Cape-based couple who, according to the grapevine, closed their business and relocated to another country after years of unsuccessful battles with Home Affairs.

James says South Africa competes globally for investment and entrepreneurs, but it’s a challenge. “The authorities are not making it easy. It’s definitely not easy due to all the administrative hurdles.” 

For Alice, difficult family decisions lie ahead. For Jason, the wait continues – as it does for thousands of others hoping to live in South Africa legally.

Government’s review of the immigration regulatory framework – the presidency document described the current process as “lengthy, unnecessarily complicated” – is expected to be completed by the end of October. It’ll come with recommendations of what should be changed to support skilled immigration and investment deemed vital for economic growth.

 It remains to be seen whether this is a silver lining for those who have been waiting for years to make South Africa their home and contribute to the economy and their communities

www.samigration.com

Skewed attitudes against migrants in South Africa’s public health system fuel medical xenophobia

By Paul Kariuki and Tawanda Matema• 26 September 2021 2021

The basic human right to healthcare for all, including migrants, refugees and asylum seekers, is being hamstrung by bureaucracy and passing the buck of policy interpretation on to healthcare provision staff. The government needs to enact a significantly less exclusive and more coherent healthcare policy.

Dr Paul Kariuki is the executive director, Democracy Development Program (DDP) and Tawanda Matema is the project manager (Migration Project) at the Konrad Adenauer Stiftung (KAS) Johannesburg. The perspectives shared are their own.

The Covid-19 pandemic which crippled the world in 2020 exposed the importance of efficient healthcare systems by accentuating the challenges affecting healthcare provisions, such as poor infrastructure, limited medical resources and unequal access to healthcare services the world over.

Moreover, access to vaccinations has remained a persistent challenge though most of the developing countries have made significant efforts towards securing vaccines for their citizenry.

In South Africa, as in many other countries around the world, the pandemic has heightened the cleavage of unequal access to public services, particularly healthcare which has negatively affected populations at risk, such as the poor, women, children, the homeless, the LGBTQI+ community and migrants, including refugees and asylum seekers. 

The ongoing challenge of providing healthcare services equitably remains elusive. For instance, black African migrants continue to be compromised given the recent xenophobic attacks in some parts of the country and the ongoing inaccessibility to quality healthcare services based on their nationality, a phenomenon referred to as “medical xenophobia”.

Medical xenophobia generally refers to the negative attitudes and practices of health sector professionals towards migrants. A ground-breaking study by Jonathan Crush and Godfrey Tawodzera on Zimbabwean migrants found that the South African public health system was marred by medical xenophobia, and this directly contradicted the country’s Constitution and Bill of Rights.

The situation is complex, due to various reasons such as cultural and language differences between local health personnel and black African migrants. In some instances, the research found that some health practitioners from other African countries practising in the country also face some forms of discrimination, often blamed for taking health jobs “meant” for South Africans. While these claims are unfounded and false, concerns remain on why a critical sector such as health would be discriminatory.   

So then, what fuels xenophobia in the healthcare sector? The first challenge is a policy one. For instance, the South African Constitution, National Healthcare Act of 2004 and Refugee Act provisions assert that everyone in South Africa has the right to primary healthcare and, based on international law, no person should be denied emergency healthcare services.

Moreover, the Immigration Act places the onus on healthcare staff to determine the legal status of patients and report to Home Affairs any migrants that do not produce appropriate documentation.

This policy dislocation has resulted in many African migrants being denied medical services simply because they do not produce documentation or payment for medical services. Additionally, the National Health Insurance Bill of 2019 limited the rights of undocumented migrants in accessing healthcare. This happened even though migrants, including undocumented ones and particularly pregnant women and children under six years old, are entitled to free healthcare services.

Second, institutional challenges such as a shortage of healthcare facilities, medicines and healthcare personnel can also contribute to medical xenophobia. A recent study found that institutional challenges often led to poor treatment for both migrants and South Africans.

Similar studies conducted by the Scalabrini Centre of Cape Town, Sonke Gender Justice and Lawyers for Human Rights found that in some cases and areas the South African healthcare system is not capacitated enough to provide adequate healthcare services to patients in spite of their nationality.

The way forward begins on the policy level. Healthcare is a basic human right and the South African government must have a coherent overarching healthcare policy to avoid leaving the interpretation of the policy to healthcare provision staff. The policy must also be comprehensive enough to include African migrants.

Moreover, the healthcare system needs additional personnel to support the increasing demand for health services, especially at the moment, due to the Covid-19 pandemic.

In addition, other factors such as sociocultural and communication factors as well as other bureaucratic barriers must be addressed to promote equity in healthcare. In this way, populations at risk such as refugees and asylum seekers are catered for and can more easily access public health services.

www.samigration.com