What should I do if my passport is on the V-list?

What should I do if my passport is on the V-list?

SA Migration | 06 Feb 2023

The short answer

You can contact Home Affairs to appeal your status as a "prohibited person".

The long answer

To be on the V-list means that you are a “prohibited person”, which means that you are banned from entering South Africa. A prohibited person is different from an “undesirable person” as the undesirable person is often a person who has overstayed their visa, and they can usually enter South Africa again after one to five years. 

Section 29 of the Immigration Act 13 (2002) sets out the grounds for someone to be declared a prohibited person, but usually you get put on the V-list for two things:  

  1. Being found with a fraudulent visa, permit, passport or identity document;
  2. Having been previously deported from South Africa.

If you are applying for asylum, they may reject it on the grounds of it being “manifestly unfounded”, which usually means that the Department of Home Affairs (DHA) thinks that you are not fleeing persecution but have come to find work. Whatever the reasons are, DHA must give you written reasons within five days of the rejection, not just stamp your passport with "V-list”.

The Norton Rose Fulbright Handbook on Refugee Law explains that this is because asylum seekers are granted the same Constitutional rights in terms of the Bill of Rights, except for the rights which are specifically granted only to citizens. One of these Constitutional rights is administrative justice (Section 33 of the Constitution). This means that any administrative action of an organ of state when exercising its public power or performing a public function must be lawful, reasonable and procedurally fair.

Le Roux Attorneys note that: “In practice, offending individuals are often told by the Department of Home Affairs (‘DHA’) that they have been placed on the ‘V-list’ or ‘No Entry List’ and no proper declaration of their prohibited status is ever communicated to them.”

Not to give you written reasons for making you a prohibited immigrant, as signified by the V in your passport, is not procedurally fair, and this should be mentioned in your appeal. The only way you can overturn the V decision by DHA is to appeal to the Director-General (DG) of DHA to overturn the decision if there is good cause. The DG has to take into account the reasons for making you a prohibited person, the seriousness of the offence and your personal circumstances. 

You would have to appeal in writing, giving the reasons why you think the DHA V listing was wrong.

Appeals must be sent to Home Affairs – Seek expert assistance

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What happens to ZEP holders' bank loans if they are forced to leave SA?

What happens to ZEP holders' bank loans if they are forced to leave SA?

SA Migration | 06 Feb 2023 

The short answer

Usually a person's debts remain active if they leave the country, but it is unclear what will happen if they are forced to leave, as with ZEP holders.

The long answer

It’s a murky, sorry business. Seemingly the banks are mostly not willing to say outright that ZEP holders’ accounts will definitely be frozen, though several, including FNB, which is apparently the only bank that has been willing to open accounts for asylum seekers and refugees, has “warned” that ZEP holders must apply timeously for other visas in order to keep their accounts open. Some banks have refused to renew ZEP holders’ bank cards.

A skilled ZEP holder who works in IT but has no degree, and thus does not qualify for a critical skills visa, and who also does not have R5-million to invest in a business, wrote in an article for the Mail & Guardian on 2 June 2022, “… as of 31 December, bonds, car loans and even medical aid, life policies and more will be lost as bank accounts are frozen, making it impossible to transact.”

Myggsa.co.za says that a frozen account cannot be opened by creditors, so no money can be withdrawn from it. It goes on to say that if your bank account is frozen in South Africa, you have the right to request a written explanation from your bank within 5 days. You also have the right to have the freeze lifted within 10 days unless your bank has good reason to believe that you have committed a crime.

No bank seems willing to actually answer the question upfront of whether Zimbabweans are obliged to pay back loans they took in South Africa if they are forced to leave the country. The banks talk only of loans made in the ordinary way, for example, Nedbank says, “When you take out a loan and sign a credit agreement, you enter into a legal contract. You agree to pay back the amount you have borrowed, as well as the specified interest and costs, within the period of time required. When you don’t pay, you are in breach of contract.”

Generally, a person’s debts remain active even if they have left the country and creditors can try to recoup the debt. (It seems that no one wants to say what the situation is if they were forced to leave, as in the case of the ZEP holders.)

 www.samigration.com

 


Can holders of expired ZEPs withdraw their provident funds and UIF?

Can holders of expired ZEPs withdraw their provident funds and UIF?

SA Migration | 06 Feb 2023

Can holders of expired ZEPs withdraw their provident funds and UIF?

The short answer

When the visa expires, the member can apply to withdraw their provident funds. Claiming UIF might be trickier, unless the courts find a solution.

The long answer

SARS issued a Tax Directive on 27 July 2022 regarding withdrawing provident or pension fund benefits if “emigrating” in terms of an expired visa (as such a benefit would be taxed):

Viz:

“In terms of paragraph (b)(x)(dd) of the definition of annuity fund in section 1(1) of the Act, a member who discontinues his/her contributions to a retirement annuity fund, and his/her emigration is recognised by SARB for the purposes of exchange control, can withdraw his/her retirement annuity fund benefit prior to his/her retirement or at the expiry of the visa that was issued in terms of paragraph (b) or (i) of the definition of ‘visa’ in section 1 of the Immigration Act, No 13 of 2002.

“WITHDRAWAL DUE TO EXPIRY OF VISA (LEAVING SOUTH AFRICA)

With effect from 1 March 2016 the definition of ‘retirement annuity fund’ was amended to allow a member who discontinues his/her contributions prior to his/her retirement date to be entitled to the payment of a lump sum benefit at the expiry of the visa that was issued in terms of paragraph (b) or (i) of the definition of ‘visa’ in section 1 of the Immigration Act, No 13 of 2002.

“The retirement annuity fund administrators, trustees or insurer must complete a manual Form C, preservation fund administrators or trustees must complete a manual Form B and attach the following supporting documents for submission to SARS: 

  • A copy of the Certificate of residence obtained from the relevant Tax Authority of the country in which the member resides or is employed;
  • A copy of the passport indicating an exit from South Africa;
  • A copy of the Visa indicating the expiry date and the applicable paragraph in the definition of ‘Visa’ in section 1 of the Immigration Act in terms of which the visa was issued or a ‘Visa / Permit Compliance and Cancellation of Visa’ letter from Home Affairs that is issued or obtained in terms of paragraph (c)(ii)(bb)(A) of the definition of ‘pension preservation fund’ / ‘provident preservation fund’ in section 1(1) of the Act will be treated the same as the expiry of a work visa. Please attach the copy to the directive application.

Only on the expiry of the visa can the member apply for the withdrawal. If the visa has not yet expired the application cannot be processed.”

In terms of UIF, as per the 18 December 2017 amendments to the Unemployment Insurance Act 2002, foreign nationals working on contract and their employers are obliged to make UIF contributions.

But Maruping, an official of the UIF, said in 2020: “What is true, however, is that payments to workers of foreign nationality have taken longer because of multi-layered processes that are used to capture their information.

“Generally, UIF uses the ID number to capture information and process payment. In this particular case, passport numbers are used and these have to be verified through interaction with sister institutions like the Department of Home Affairs, and at times with the South African Revenue Services.

“Clearly, with such processes involved, it is likely that there would be some delays but the Minister has instructed the UIF to ensure that these delays are minimised or shortened tremendously. It is also important that these workers are legally in the country, properly documented and are declared by their employers.”

The labourguide.co.za says: “If you have been contributing to the Fund for four years or more, then you can claim for up to 238 days. If you have been contributing for a shorter period, then you can claim 1 day for every 6 days that you worked while you were contributing to the Fund. If you take maternity leave, you can only claim up to 121 days. The Fund pays a percentage of the wage/salary that you earned while you were contributing to the fund. The highest amount that can be paid is 58% of what you earned per day.”

But what might be tricky for the ZEP holders is that to claim UIF unemployment benefits, you have to sign the unemployment register at a Labour Centre and be told when to come back and sign again, and you have to sign every four weeks to show you are still unemployed and needing UIF. You can’t claim UIF if you resigned, only if you were dismissed, retrenched or the contract expired. (I assume that with the ZEP holders, the expiry of the ZEP means the contract has expired.)

I am assuming that the three court cases being brought against Motsoaledi’s decision to end the ZEP by the Helen Suzman Foundation, the Zimbabwean Exemption Permit Holders Association (Zepha), and the Zimbabwe Immigration Federation, will still be taking place, even though the ZEP has been extended for a further six months. It may be that the courts will come to the rescue and shed some light on these matters. Let’s hope so.

www.samigration.co.za


Who inherits the house of a man who was married to but separated from one woman and in a long-term partnership with another?

Who inherits the house of a man who was married to but separated from one woman and in a long-term partnership with another?

06 Feb 2023 | SA Migration

The short answer 

It may be that your mother and children and the separated wife and her children are both entitled to inherit. 

The whole question

My mother, my siblings and I lived with my father in his house although he was married to another woman. There is a lobola letter for my mother. Can we change the title deed to my or my mother's name? 

The long answer

The Constitutional Court ruled in December 2021 in the Bwanya case that life partners must have the same rights as married people, and that Parliament must change the Intestate Succession Act and the Maintenance of Surviving Spouses Act within 18 months so that life partners are not discriminated against on the basis of not being married. In the meantime, these laws must be read to include life partners as spouses. 

The problem is that your late father did not divorce his wife, and so she would automatically have a claim to 50% of the joint estate, because a civil marriage in community of property means the surviving spouse inherits 50% of the joint estate set up by their marriage. A customary marriage is also automatically in community of property, unless the spouses take out an ante-nuptial contract before their marriage.

The Intestate Succession Act (which is the law that is applied when a person does not leave a will) says that the spouse or spouses inherit the greater of R250,000 per spouse or a child’s share, and the children the balance of the estate. A child’s share is determined by dividing the intestate estate by the number of surviving children of the deceased and deceased children who have left issue, plus the number of surviving spouses.

So it may be that your mother and her children and the separated wife and her children are both entitled to inherit. If this is the case, it would probably mean that the house would have to be sold to pay both women and their children.

In terms of the Maintenance of Surviving Spouses Act, a surviving spouse (or life partner now) is entitled to claim against the deceased estate as follows: 

“If a marriage is dissolved by death after the commencement of this Act the survivor shall have a claim against the estate of the deceased spouse for the provision of her reasonable maintenance needs until her death or remarriage in so far as she is not able to provide therefor from her own means and earnings.”

In other words, maintenance is not automatic – it depends on the circumstances of the surviving spouse. As the other spouse has her own house, it may be unlikely that she would be able to successfully claim maintenance from the deceased estate.

And as your mother is living in your late father’s house with her children while the other spouse has her own house, the other spouse would not need her late husband’s house for accommodation.

But is this a situation of two spouses who have equal claims to the deceased estate, or does it make a difference that there was a separation? These are questions that you will need to put to the Master of the High Court, who supervises and administers deceased estates.

You and your mother should take your father’s death certificate, his ID and your own IDs and the children’s birth certificates and any documentation about the house, to the Master of the High Court and ask for assistance. 

www.samigration.com

How can I get legal permission to work in South Africa?

How can I get legal permission to work in South Africa?

SA Migration | 06 Feb 2023

The short answer 

Legal permission to work in South Africa is accessed by getting a visa. In you case it can be a relatives visa, spousal visa or life partner visa 

The whole question

How I, a Zimbabwean man, can get a visa to be able to stay in South Africa and care for my seven-month-old child and her mother, when my critical skills visa expires in March and I cannot renew it as the skills list was changed this year.

The long answer

There are three possible visas:

• Relatives visa;

• Spousal visa;

• Life partner visa.

The Relatives visa:

You can apply for a relative’s visa if you are first kin (i.e. a parent or a spouse) to a South African. This is a temporary visa, usually issued for about two years. It is like a long tourist visa. You are not allowed to work and your South African partner has to be your sponsor and prove that they can support you in an amount of at least R8,500 per month. Thus, it may not be appropriate for you, as you need to support your partner and baby. 

Apart from the application form, the following documents have to be submitted for the relatives’ visa:

• Your passport, which is required to have at least one blank page for the insertion of the permit/visa;

• A yellow fever vaccination certificate, if applicable;

• Payment of the application fee (not required where the applicant is a spouse or dependent child of a South African citizen/permanent resident);

• A statement and/or documentation showing the purpose and duration of your visit (temporary residence visa applications);

• Proof of the relative’s relationship, such as birth certificates, marriage certificates etc;

• Police clearance certificate from each country in which you resided for 12 months or longer since the age of 18 years;

• Medical and radiology reports;

• The ID book and/or passport that proves the South African relative is indeed a citizen or permanent residency holder; and

• Documentation that proves the availability of at least R8,500 per month per person for financial assurance (a waiver can be applied for spouses or dependent minor children of a South African citizen/permanent resident to waive the minimum financial requirements).

Sa Migration.com notes that “The spouses, life partners and children (minor or major) of South African citizens and permanent residents can submit their relative visa applications in South Africa from a visitor’s visa, following the issuance of Directive 7 of 2019, implemented in July 2019.

"Unfortunately, this does not extend to parents of South Africans. Parents and other eligible relatives must submit their visa applications at an embassy or consulate abroad.”

You can apply for a relative’s permit, which is a permanent residence permit where you are allowed to work, study, or set up a business, but it can take a long time for this to be issued (normally about two years) and in the meantime you would have to keep applying for the temporary relative’s visa.

The Spousal Visa:

You can apply for a temporary spousal visa if you are married to a South African citizen or permanent resident. The spousal visa is normally given for two to three years. You are not allowed to work on the temporary visa but you can get the visa endorsed to allow you to work or study or start a business. The documents you have to submit are the following:

• A marriage certificate;

• Proof of your South African spouse’s citizenship or residence;

• A letter of support from your South African spouse;

• Proof of good health and standing;

• A completed temporary residency application form.

If you have been married for more than five years, you can apply for a spousal permit which is a permanent residence permit. That means you can work or study or start a business. But even if you qualify for a spousal permit, it can take two years for Home Affairs to issue it, so it might be safer to apply for the temporary spousal visa first. 

The Life Partner Visa:

Intergate Immigration notes that with a spousal visa you can simply prove the relationship with a marriage certificate, but it’s harder to prove the relationship for a life partner visa. Home Affairs says that “such relationship must be intended to be permanent, exclude any other person and involve cohabitation, an obligation of mutual emotional support between the parties and a reciprocal obligation to support one another financially …” 

Besides proving that there is both an emotional and financial bond, you would also need to provide affidavits or letters of support from family and friends, attesting to your relationship.  

You would need to prove that you share financial responsibilities, like bond or rent, electricity payments, etc. You would need to open a joint bank account to show that you will not become a burden on the state.

You can apply for endorsements to the life partner visa for work and study once you have got the visa. You are advised to renew it at least 20 to 24 weeks before it expires because if the visa expires, you could be deported and banned from re-entering the country for five years. Home Affairs is ordinarily very slow and currently, it could take 20 weeks to process from the date of submission in South Africa.

You can apply from South Africa if you have a visitor’s visa (generally issued for 90 days). Presumably you can apply from South Africa on your critical skills visa, as long as that is valid.

These are the documents you would have to submit:

• Valid passport with at least two free pages and valid for 30 days after the end of your visit;

• Photocopy of any temporary residence visas in the passport;

• Proof of your relationship and that you have lived together for two years before submitting the visa application;

• A joint bank account;

• Proof of a minimum of R8,500 per month per person;

• Police clearance certificates from any country you’ve lived in for a year or more since the age of 18;

• Documentation proving cohabitation and the extent to which the related financial responsibilities are shared by the parties;

• Medical Certificate – not older than 6 months from date of issuance;

• Radiological Report – not older than 6 months from date of issuance.

Since VFS Facilitation Centres started managing the submission process of all visas and permits for Home Affairs in 2014, Home Affairs officials do not generally conduct interviews, so you may not be asked to undergo an interview to prove the validity of your relationship.

But if Home Affairs has any doubts about the relationship at any stage, they could still request an interview. 

After five years of the life partner visa, you can apply for permanent residence if the relationship is ongoing.

Intergate Immigration says that it can take up to three years for Home Affairs to process life partner visa applications for permanent residence. So it is advisable to apply for a temporary visa in the meantime.

It seems to me (from the outside, of course) that the simplest one to apply for would be the spousal visa, if you were married.

www.samigration.com