Pretoria - The Department of Home Affairs has been interdicted from implementing certain provisions of the Refugees Act as well as new regulations which make provision for asylum seekers to be sent away if they are a month late in renewing their permits.

In most cases, these asylum seekers face persecution, death or rape when they return to the countries from which they had fled, according to the Sclabrini Centre, a non-profit organisation assisting them.

Judge Elizabeth Baartman handed down judgment in the Western Cape High Court, which suspended the operation of certain provisions of the act and the 2018 regulations thereto, both of which came into effect on January 1. The suspended provisions are commonly referred to as the “abandonment provisions”.

The suspension will operate pending a later application before the Constitutional Court in which it will be asked to confirm the high court judgment.

The Scalabrini Centre of Cape Town, represented on a pro bono (free of charge) basis by Sandton law firm Norton Rose Fulbright, turned to court to prevent the short and long-term operation of the abandonment provisions.

It was argued that the provisions infringed on asylum seekers’ rights to life, freedom and security of person, dignity and equality. The court was told that the provisions also prevented South Africa from fulfilling its international law obligations towards refugees, including the international law principle of non-refoulement.

The abandonment provisions provided that in the event that an asylum seeker failed to renew their asylum visa timeously, their applications are deemed abandoned. Arrest and deportation would follow for individuals with valid and undecided claims for asylum.

They would be returned to countries of origin where they could face death, torture, sexual violence and other forms of persecution from which they had fled, or to countries experiencing grave disturbances to the public order.

In the past, only where an asylum seeker had a compelling reason – accompanied by proof – for delaying to renew a permit following a lapse (such as hospitalisation or imprisonment) could the department pardon the late renewal.

The court was told that this was problematic as it meant that refugees could be returned to face persecution, without ever having the substantive merits of their asylum application determined. It also left asylum seekers vulnerable in South Africa.

This is because, essentially, undocumented foreigners struggle to access health care, employment and education while they await the decision of whether their reason for late renewal meets the department’s high threshold.

The centre said the reality for asylum seekers was that they were frequently required to renew their asylum visas.

In the renewal process, they experienced extraordinary delays caused by the administrative failures of the department.

These are often exacerbated by socio-economic factors such as not having the means to travel to far away Refugee Reception Offices as frequently as is required and waiting in long queues.

They also face officials who refuse to renew visas without receiving bribes or the general inefficiency of the Refugee Reception Offices that are over-worked but under-staffed.

In light of these realities, many asylum seekers fail to renew their visas for valid reasons. Judge Baartman delivered a powerful judgment, emphasising that the case did not involve imaginary victims. She said the suspended abandonment provisions affected real asylum seekers who could face serious human rights violations should the provisions remain in place. She criticised the department’s conduct in the case, which she characterised as regrettable and unhelpful.

Lawyers acting for the asylum seekers said the judgment had come as a relief to many who had been unable to renew their visas for valid reasons and would give them an opportunity to do so without the fear of being treated as illegal foreigners and returned home.

These include many asylum seekers who may have been prevented from renewing their documents before the pausing of services at refugee reception offices during the lockdown.

This is to remain in effect until at least the end of January.

www.samigration.com

Cape Town - The Home Affairs Department is investigating close to a million "blocked" identity documents that were found to be suspicious, duplicate or fraudulently issued with falsified supporting documents.

This was revealed by Home Affairs Minister Aaron Motsoaledi when he was responding in writing to Parliamentary questions from EFF MP Lorato Tito.

Tito had enquired about the total number of cases of blocked identity documents in his department.

She also wanted to know how long it took his department to investigate and resolve the matter of blocked IDs.

In his written response, Motsoaledi said the department has 813 343 identified cases of blocked identity documents falling under different categories.

"The afore-mentioned total includes cases that have to remain blocked as these cases are already investigated and/or marked for deletion so that they should not be used again as such," he said.

Motsoaledi stated that when the department delivered services to citizens and non-citizens, it came across cases of identity theft where an ID was acquired illegally, fraudulently, where supporting documents were falsified or inadvertently where identity numbers are duplicated.

"In all such cases markers are set on the National Population Register as a means of ensuring the integrity and credibility of the National Population Register.

"In addition, markers are set on identity numbers such as cases that are referred to as 'under investigation' for various reasons or causes."

Motsoaledi also said there are 517 249 duplicate IDs for cases where individuals have multiple identity numbers and in other cases two persons sharing the same ID number.

There were 17 747 fraudulent cases of deaths, 222 cases of immigrants that did not qualify for automatic citizenship and 8214 South West Africa cases.

Others included 145 619 illegal immigrants, 70 323 cases under investigations for various reasons and 53 978 cases referred to identification to investigate fingerprints records.

Motsoaledi said when the department received cases of that nature, they first have to investigate these cases to establish if indeed the ID was acquired illegally and those Identity numbers are definitely blocked.

"Where there is sufficient evidence provided to the contrary, markers are lifted accordingly."

He also said some of the reasons that mainly attribute to IDs being blocked and markers are set on the National Population Register included duplicated ID numbers and illegal immigrants who obtained SA documents fraudulently.

There were also false registrations of births, marriages and deaths as well as investigation purposes of suspicious ID obtained fraudulently with falsified supporting documents.

Motsoaledi said it takes the department approximately six to eight weeks to resolve and to finalise blocked IDs provided all required supporting documents to resolve these cases were obtained from the applicant.

"This includes the time when the client visits the front office and the receipt of all requested documentation to resolve the case in line with the standard operating procedures," he said.

www.samigration.com

 

British citizenship could be more attainable than you think, writes Mishal Patel of Sable International. Amendments to the UK’s laws and new rulings make it possible to claim nationality from your parents, grandparents and in some cases even your great-grandparents.

These are the different ways you can become a British citizen.

1. British citizenship by Crown service

If your UK-born parent or UK-born grandfather was employed by the UK government at the time of your or your parent’s birth you could be eligible for British citizenship.

Crown service includes service in the:

• British military
• Overseas Civil Service
• Colonial Service
• Diplomatic Corp
• The Salvation Army
• The Red Cross
• The Church Army
• Roles within the Civil Service or local colonial government
• The BSAP in Rhodesia
• The NAAFI
• The YMCA and YWCA
• The Seaman’s Mission
• The Australia, New Zealand and Malaya Defence Organisation

There are numerous other organisations that fall under Crown Service. If your parent worked for an applicable organisation, you should have a British nationality assessment done to find out if you’re eligible.

 

2. British citizenship by marriage

Generally, you can qualify for a UK spouse visa if you are married to a British citizen. However, under old colonial law, rights were given to women who were married to a British man before 1 January 1983, and to the children of women married before 1949. Here’s how you can qualify for British citizenship by marriage.

Women married to British men between 1 January 1949 and 31 December 1982

A woman from a Commonwealth country who married a British citizen before 1 January 1983 can claim the right of abode.

A Commonwealth citizen is someone who:

• Was born in a country that remained a Commonwealth country on 1 January 1983 (this excludes South Africa)
• Has a father who was born in a Commonwealth country
• Right of abode takes the form of a stamp in your passport and allows you to live and work in the UK without any visa restriction. You can eventually naturalise as a UK citizen at a later stage. Right of abode can be claimed from a previous marriage, even if a woman remarries, divorces or becomes widowed.

Women married before 1 January 1949

If your mother married a British man (who is British by birth or descent) before 1 January 1949, she became a British Subject. This makes you eligible to claim British citizenship.

Your mother remains a British Subject even if she divorced, remarried or became widowed.

3. British citizenship by statelessness

You are stateless when you don’t hold any nationality. This happens when a child is born and cannot take on the nationality of their parents or their country of birth. However, if one of the parents was British at the time of the child’s birth it is possible for the child to be registered as British.

The child must claim citizenship before the age of 18 or their rights to register fall away and are lost forever. The rules around British nationality and statelessness are complex and it’s often best to consult an expert should you find yourself in this situation.

4. British citizenship by adoption

A child adopted in the UK after 1 January 1983 by a parent who was British at the time, can claim British citizenship.

In the case of a child adopted outside of the UK, the nationality of biological parents will determine whether the child has a claim to British nationality. If you were adopted by British parents, you will need to look into your family lineage to find out if you have a claim to British citizenship.

We were able to secure British citizenship for a child adopted outside of the UK by a UK-born parent. We were also successful in securing British citizenship for a child adopted outside of the UK where the relevant parent was also born out of the UK and the child’s nearest UK-born ancestor in the adoptive line, was a UK-born grandfather.

5. British citizenship by an unmarried father

In 2006, the UK government passed legislation that allowed those born after 2006 to claim British citizenship regardless of their parents’ marital status. Prior to this, claims through British fathers were only possible if the parents were married at the time of the child’s birth.

In 2014, further legislation was passed that allowed those previously deemed to be illegitimate to have a claim. This means that those born prior to 2006 can acquire British citizenship.

6. British citizenship by naturalisation

To naturalise as a British citizen, you must have lived in the UK for five years and have held indefinite leave to remain or permanent residency for 12 months before applying. You can only naturalise as a British citizen if you:

• Are over 18 years old
• Are of good character
• Have the requisite language ability
• Have passed the Life in the UK test
• Intend to continue to live in the UK
• Have spent enough time in the UK over those five years

How to naturalise if you’re an EU citizen

EU and Swiss nationals also have to meet the requirements above to naturalise. If you’re not yet a permanent resident and wish to remain in the UK, you need to apply to the EU Settlement Scheme. It will allow you to live in the UK after the deadline of 30 June 2021.

If you already have ILR, you do not need to apply to the scheme.

7. British citizenship by descent

If you weren’t born in the UK, but you have a parent who was, then you may be eligible to claim based on descent.

You have a UK-born father

British nationality rights can be passed down to children whose father was born in the UK. The claim will depend on when the child was born, when the father was born and whether the parents were married at the time of the child’s birth.

Two circumstances will affect your claim:

• Whether your father was born in the UK before 1 January 1983
• Whether your father was born in the UK after 1 January 1983

There are exceptions if your parents were married at the time of your birth.

Father born in the UK before 1 January 1983

If your father was born in the UK before 1 January 1983 and was British at the time of your birth, you are a British citizen at the time of your birth. You can apply for your British passport.

Father born in the UK after 1 January 1983

If your father was born in the UK after 1 January 1983 and was British at the time of your birth, you are already a British citizen.

If your father was not British at the time of your birth, then your rights to British nationality depend on your age (whether you are 18 years old or under), the status of your parents at the time of your birth and their status now.

Again you will need to have registered for British citizenship before turning 18. Thereafter, your rights to citizenship fall away and can be lost forever.
Your parents were not married at time of birth

In the past, you could not claim citizenship from your UK-born father if your parents were not married at the time of your birth. Legislation has now been passed to allow those who were previously disadvantaged by this to claim British nationality.

You were born after 1 July 2006

Whether or not your parents were married is irrelevant. You should have your rights to British citizenship assessed.

You were born before 1 July 2006

This route to citizenship is quite complex as it could potentially remove rights from any children already born to that person or remove citizenship of another country. You will need to do Status Trace before applying for British citizenship.

You have a UK-born mother

If you were born outside of the UK to a UK-born mother, you could fall into one of two categories:

• Your mother was born in the UK after 1 January 1983
• Your mother was born in the UK before 1 January 1983

Mother born in the UK after 1 January 1983

Mother was British at the time of your birth

Your mother is considered as being British other than by descent and can pass British citizenship to her children. You can apply for a British passport.

Mother was not British at the time of your birth

Your rights to British citizenship depend on whether you are under 18 or not, the status of your parents at your birth and their status now. Once you turn 18 your rights to British nationality fall away and can be lost forever.

Mother born in the UK before 1 January 1983

You are born after 1 January 1983

You are a British citizen at birth and do not need to apply for citizenship.

You are born before 1 January 1983

Mothers were previously not allowed to automatically pass on British citizenship to their children born before 1983; however, new legislation now permits you to qualify.
Parent born outside of the UK

If your parent is classified as British otherwise than by descent, they can pass British nationality to their children, allowing you to claim citizenship. However, this area of British nationality can be quite complex and an analysis of how your parents became British will first need to be done.

You should explore your rights to citizenship if any of the following apply to you:

• Your parents were married before 1949
• You (or a parent) were born in a former British territory
• You (or a parent) were registered or naturalised as a British citizen
• You have/had a parent or grandparent in Crown service
• You were born in a country that is different to the country of birth of either parent or any grandparent
• You have a grandparent who was born in the UK
• Your maternal grandfather was born in the UK and you were born in a “foreign country” (including South Africa, the USA and most European countries)

8. British citizenship by birth

Being born in the UK does not automatically make you a British citizen. It depends on the date of your birth and the status of your parents at the time of your birth.

A child will have automatic right to British citizenship if they were born in the UK and one parent had settled status at the time of the child’s birth.

Born after 1 January 1983

If you were born in the UK after 1 January 1983, you’ll qualify for British nationality based on the status of your parents. You can claim in one of two cases:

• A parent was settled in the UK at the time of your birth
• You spent the first 10 years of your life in the UK

Born before 1 January 1983

If you were born in the UK before 1 January 1983, you could already be British and should be able to apply for a British passport immediately. You are classified as British otherwise than by descent and can pass British nationality to your children, irrespective of where they are born.

9. Double descent

You can claim British citizenship by double descent if you have a grandparent (and in rare cases a great-grandparent) born in the UK. This is known as double descent.

You were born after 1 January 1983

Children under the age of 18 will need to claim citizenship before the age of 18 or they will lose all rights to British nationality.

If you are 18 years and older and were born outside of the UK with UK-born grandparent, you can claim by double descent if:

Your grandfather was in Crown service when your parent was born

Your parent:

• Had a UK-born mother
• Did not have a UK-born father
• Was registered as a British citizen between 2 February 1979 and 31 December 1982
• You or a parent were born in a former colony (subject to further criteria being met)

You were born before 1 January 1983

If you were born outside of the UK between 1 January 1949 and 31 December 1982, claiming citizenship can be complex and your circumstances will need to be assessed.

You may have a claim if:

• You (or a parent) were born in a former British territory. This excludes the main Commonwealth countries of 1949 (Australia, Canada and New Zealand) but includes India, South Africa and (Southern) Rhodesia at various times
• You or a parent was registered as a British citizen, a citizen of the UK and colonies (CUKC) or a federal citizen of Rhodesia and Nyasaland
• A parent was in Crown service at the time of your birth
• Your parents married before 1949 and your paternal grandfather was born in the UK
• Your maternal grandfather was born in the UK and you were born in a “foreign country” (including South Africa, the USA and most European countries)

You were born before 1 January 1949

You may have a claim if the following circumstances apply to you:

• You and your parent are not born in a Commonwealth country
• You or a parent were born in a former British territory
• You are a woman who married a British man before 1949

Double descent through your maternal grandfather

In March 2018 the Supreme Court in the UK opened a new route to British citizenship. This ruling allows you to claim citizenship through your mother who inherited citizenship from her father.

You may qualify if:

• Your mother’s father was born in the UK or Northern Ireland
• You were born between 1 January 1949 and 31 December 1982
• You were born during (and in) what was characterised as a “foreign country”*

This includes South Africa during the period 31 May 1962 and 31 December 1982, the United States of America and most European countries.

Your potential claim will be complicated if:

• Your paternal grandfather was also born in the UK
• You (or your mother) were born out of wedlock
• Your circumstances fall outside the context of the court judgements

www.samigration.com

Scalabrini’s ‘abandonment’ court case challenges constitutionality of South African refugee laws

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.

www.samigration.com

 

The United Kingdom (UK) government has announced a new points-based visa route to encourage international students to study and live in the UK.

South African students interested in starting the application process need to ensure they meet the basic entry requirements; this includes securing an offer from their chosen university.

 "Due to complicated and confusing visa processes, local students have often been discouraged from applying to international universities," says Rebecca Pretorius, Country Manager at global mentorship company Crimson Education.

 

"The UK's new student visa route opens up an opportunity for South Africans with dreams of studying overseas, provided they have applied to and been accepted at a UK university," she explains.

Prospective international students are required to achieve a total of 70 points to be granted a UK student visa.For 50 points, students must present proof of an unconditional offer from an approved educational institution, including a reference number from the Confirmation of Acceptance for Studies (CAS).

The course must also lead to an approved qualification, at an appropriate level of study.

For a further 10 points, students must demonstrate that they can speak, read, write and understand English to the required standard for the level, of course, they intend to study.

To secure the remaining 10 points, students must show that they can financially support themselves throughout their studies in the UK.

Students can apply via the new student visa route from October 2020, at a cost of £348 (around R7 500, depending on the current exchange rate).

The most difficult part of the process for many hopeful students will be the process of applying to international universities.

"Every country and university has its requirements, including extracurriculars, essays, admissions tests and portfolios," says Pretorius.

"Considering the complexity of the applications and competitiveness of top universities abroad, students should consider the services of an admissions company, who can assist in all areas of the candidacy building and application process," she advises.

www.samigration.com