Home affairs stuck in costly legal limbo, worsened by Covid

Business Day | 31 January 2023

The Covid-19 pandemic has proven to be yet another stick in the spokes for the department of home affairs, further delaying processes that were already slow and inconsistent, and causing despair and disruption for thousands of people and businesses. In addition, an apparent lack of will to rectify the situation is costing the state millions in unnecessary legal fees as unsuccessful applicants head to the courts to appeal.

For years our practice has noted that SA loses skills, business capital and jobs by apparently regarding all foreigners with suspicion, making visa, residency and citizenship applications a complex nightmare that deters foreigners. The pandemic has worsened the problem. Indeed, it would appear that the department is not well equipped to adapt to change: in 2010, when adjudication was centralised to a hub, services collapsed. In 2014, when the law changed, we saw more court cases and further delays. Covid has forced significant change across society and the economy, and again services have ground to a halt.

Racking up costs to the state

As we warned  in 2021, the pandemic has further delayed and derailed immigration processes and caused a backlog that could take years to clear – particularly in permanent residence and citizenship-related services. We have noted an increase in rejections of critical skills visa applications, freelance work applications by foreign spouses of South Africans, and work authorisations for foreigners with a retired persons visa.

This situation has not changed, forcing applicants to go to court to appeal against their rejections. These cases may be escalated several times — each time at a legal cost to the state. As a seasoned immigration expert I have never litigated so much in my life as I have in recent years. In most cases a court case relates to a delay, which is easy to prove and results in the state losing, with cost orders against it.

One gets the impression that the state often appeals as a delaying tactic. With the services of an attorney and a junior advocate costing anywhere from R30,000 to R200,000 per case — before the case has even been referred to the Supreme Court or Constitutional Court — these delays can cost the state a substantial amount.

Exactly how much this may be costing is difficult to pinpoint. According to the department’s 2018-2019 and 2019-2020 annual reports immigration affairs management is the third programme within the department of home affairs.  The line item for legal services records that in 2018-2019 it spent about R32m on legal services, and in 2019-2020 R43m. Unfortunately, there is no further information on how exactly this total is broken down. Both years also record some R2bn in contingent legal liabilities, but “contingent” means the liability may not occur. In other words, the department is being sued for R2bn, but those suits have not yet been concluded.

There is a statement that “claims in immigration services arise mainly from the unlawful arrest and detention of illegal foreigners, and damages arising from the department’s failure to make timely decisions on visas and permits. Of the total claims, 11 major claims (R5m and above) amounting to R696m, reside under the branch.”  But this may refer to damages, not legal costs, and such damages claims are likely to fail.

Home Affairs at a standstill

Efficiency and consistency would clearly be a more cost-effective approach, yet home affairs remains at a standstill, even though the wheels of business are starting to turn again. Thousands of people have been in limbo for about a year as they await outcomes.

Among our clients is a German film director and corporate general manager who has applied for a critical skills work visa and is experiencing lengthy delays in the process. This businessman has companies in SA with the capacity to create jobs and drive investment into the country. On top of this, he has invested over R5m in NGOs and NPOs benefiting children.

Another client is a Ghanaian ICT professional who studied in SA and has applied for a critical skills work visa. He has been informed his application was rejected because he is on a visa restricted “V List”, while simultaneously another home affairs division states that he is not on the V List.

Home affairs recognised in its 2021 budget  that “the  timeous issuing  of  permits and visas enables economic growth and removes impediments to foreign investment” and said it aimed to maintain the percentage of business  and general work visa applications per year that are adjudicated within eight weeks at 90% over the medium term, and targeted an increase in the  percentage of critical skills visa applications per year adjudicated within four weeks from 82% in 2021/2022 to 95% in 2023/2024. 

The department also recently announced that it was resuming the processing of applications for permanent residency after a hiatus of nearly two years and an estimated backlog of up to 50,000 applications. It is commendable that the department recognises that there is a problem, but it should be noted that service delivery cannot be achieved when offices are closed or manned by a skeleton staff, and that rushing through adjudication is not enough: adjudication needs to be done consistently, fairly, and in line with the relevant acts.

By improving efficiencies and eliminating poor and inconsistent processing of immigration and work visas the department of home affairs could not only slash the costs and time wasted in legal challenges; it could also support the government’s efforts to encourage foreign investment and create more jobs.

www.samigration.com

General Work Visa 

30 Jan 2023 | SA Migration 

Under the General Work Visa there are very strict requirements. The South African government, although trying to promote work and trade in South Africa, recognize the need to give South Africans the chance to obtain employment ahead of any foreigner. You will have to prove that you are the only person who can fill that position and that no other South African can play that role. This is done by placing an advert in a national newspaper advertising the position

A Department of Labour report would need to be obtained. You will also have to have a job offer/contract from your future employer. The most important part of the process is skills assessment by SAQA (South African Qualifications Authority) in SA which evaluates your formal qualifications and compares to a SA qualification which process is mandatory and for this we would need your academic transcripts and award diplomas.

if qualified in SA then no SAQA needed. Next you as employer have to prove that you are the only person who can fill that position and that no other South African can play that role. This is done by placing an advert in a national newspaper advertising the position. 

You will also have to have a job offer/contract from your future employer. Please note the work Visa is issued in the name of the employer so the person is tied to the employer. If they change the job they will require a new work Visa. There is some good news for people who are qualified through work experience only and they can qualify if they do not require formal qualifications, ie SAQA.

Children born abroad with one South African parent have right to citizenship - ConCourt 

30 January 2023 – GroundUp 

• The Constitutional Court finalised a seven-year legal battle fought by Lawyers for Human Rights on behalf of four people born to SA parents outside the country.

• The case centred on the Citizenship Amendment Act of 2010 and how it applied to people born outside of South Africa before January 2013.

• Justice Sisi Khampepe slammed the Department of Home Affairs, describing its conduct in the matter as "brazenly incompetent".

Children born in other countries are entitled to South African citizenship as long as one parent is South African, the Constitutional Court has ruled.

A seven-year legal battle is finally over and the court has ruled that the Department of Home Affairs must immediately recognise as citizens Yamika Chisuse, born in 1989 in Malawi; Martin Ambrose, born in 1970 in Zimbabwe; Amanda Tilma, born in 1969 in Zimbabwe; and Emma Dullart, born in 2006 in Accra.

The ruling by the court has cleared up any confusion about the country's citizenship by descent laws, which were interpreted by Home Affairs to mean that nobody born in other countries after 2013 qualified for citizenship, irrespective of whether their parents were South Africans, GroundUp reported.

Represented by Lawyers for Human Rights, the applicants started negotiations with the department in 2013 and first went to court in 2016.

The department failed to file opposing papers and it was finally set down to be heard in May 2019.

The department asked for a further postponement, but this was refused and the matter was heard unopposed.

The applicants claimed that the Citizenship Amendment Act of 2010 (which came into effect in 2013) was not being applied retrospectively, resulting in "wholesale deprivation of citizenship rights overnight".

They said the provisions of the Act did not provide for anyone born outside of South Africa to a South African parent before January 2013 to obtain citizenship.

'Risks of statelessness'

The Gauteng High Court in Pretoria ruled in their favour, declaring sections of the act unconstitutional.

But the Constitutional Court has now declined to ratify this, saying that the act was misinterpreted.

In a unanimous ruling handed down this week, Judge Sisi Khampepe said the issue surrounded the wording in the act which stated "any person who is born".

This was interpreted to mean only those born after 2013.

The judge said the only reasonable and constitutional compliant construction of the text was that it included all persons, born yesterday, today and tomorrow.

"An interpretation that favours a prospective-only operation in this instance effectively abolishes existing rights.

"Moreover, a finding that the section only applies prospectively would have the effect of excluding not only the vast majority of those who had acquired citizenship by descent, but also those who, like the applicants in this matter, are excluded from the ambit of the section merely by the date of their birth," said Khampepe.

Khampepe said: 

This interpretation would also expose some individuals to the risks of statelessness and it would be contrary to the spirit and purpose of the legislation, which seeks to widen the pathways to South African citizenship rather than narrow them.

'Brazenly incompetent'

The judge labelled the department's conduct "brazenly incompetent". While it had belatedly, before the Constitutional Court, conceded to an interpretation of the act that would recognise the applicants as citizens, it had continued to oppose the application on a "factual basis".

"The ordinary rule is that costs follow the results and the applicants have been unsuccessful in confirming the order of invalidity.

"But clearly this case encompassed more than that – it was about vindicating the citizenship rights of the applicants who have been dragged from the proverbial pillar to post by the government's intransigence, indifference and inefficiency.

"The applicants have been successful in vindicating these rights and are entitled to their costs for the significant and prolonged litigation.

"The documents must be issued as soon as possible. They have already suffered greatly by the dilatory conduct of the government and there is no reason why they should continue to be at their mercy."

Liesl Muller of Lawyers for Human Rights said the case was about one simple thing – dignity.

"The application was opposed to the bitter end, this despite two of the applicants providing DNA evidence of their link to a South African parent and two others having government-issued proof of their links.

"Our clients expressed overwhelming relief … It may have been a seven-year legal battle; for them it has been a life-long struggle."

www.samigration.com

Section 10 of Births and Deaths Registration Act 'impairs dignity of unmarried fathers' - ConCourt 

Groundup | 30 January 2023

Section 10 of Births and Deaths Registration Act has been declared unconstitutional. 

Getty Images

• The Constitutional Court has declared a section of the Births and Deaths Registration Act unconstitutional.

• The section does not allow an unmarried father to register his child's birth under his surname, unless the mother gives consent or is present.

• A ConCourt judge says there is no justification for differentiating between married and unmarried fathers.

The Constitutional Court has declared section 10 of the Births and Deaths Registration Act - which does not allow an unmarried father to register his child's birth under his surname, unless the mother is present or gives consent - unconstitutional. 

In a judgment by Justice Margaret Victor on Wednesday, which was read out by Justice Steven Majiedt, the court found there was no justification for differentiating between married and unmarried fathers.

"Section 10 of the act impairs the dignity of unmarried fathers, whose bonds with their children are deemed less worthy than the children of married parents," Majiedt said. 

The apex court confirmed a 2020 ruling by the Eastern Cape High Court, which found the act invalid and inconsistent. 

Father Menzile Lawrence Naki approached the court after the Department of Home Affairs refused to register his child under his surname because the mother was an undocumented Democratic Republic of Congo national.

Consent

The department would also not allow him to register the birth, without the mother's consent.

Chief Justice Mogoeng Mogoeng was one of two dissenting justices. He acknowledged that the act discriminated against unmarried fathers, but held the discrimination was reasonable, justifiable and fair. 

"The chief justice holds that children are vulnerable and their best interests are of paramount importance in issues that concern them have to be addressed. 

"The chief justice further reasons that they must be protected and not exposed to the risks of being easily claimed and adopted by people, whose relationship with them or subsequently to be in their lives, has been established," said Majiedt.

www.samigration.com

Is artificial intelligence beginning of the end? 

City Press – 30 Jan 2023

Is this the beginning of the end for personalized creativity? 

If you spend enough time online, you would have seen the AI-generated pictures of black alternative people at a rave or maybe you’ve even created some fun AI art of your own in the recent past.

AI, also called machine intelligence, is defined as a sector within computer science that primarily focuses on elevating, building and managing computerized technology. 

AI technology is also created with the intention of autonomously making decisions and carrying out actions on behalf of a human.

Surprisingly, AI technology is an umbrella term that involves many other computerized tools such as digitize learning, robotics and computerized vision, as well as language comprehension and generation.

With all the strides that have been made in the digital sphere, we are now seeing the rise of AI technology as it infiltrates more conventional hardware systems, including on our cellular devices and desktops.

AI technology allows for data-driven decisions to be made at a faster and more accurate rate than the human brain can compute.

For some industries, the AI takeover happened faster than was expected. 

In the US, fast food restaurants such as McDonald’s and KFC said goodbye to many of their servers at counters and welcomed automated machines that make the ordering and paying process faster for patrons.

Call Centres also had their day when service calls became automated, costing employees their jobs.

While fast food servers and call centre agents worried about the future of their jobs, many of us felt a false sense of security in our lines of work. 

But now machine intelligence is coming for yet another industry – the arts and culture sector, which is seeing a lot more AI influence infiltrating the sanctity of creativity and creative expression.

If you scroll through TikTok, Instagram or even Twitter for long enough, you’ll find AI-generated songs, paintings, film scripts and even novels, many of which seem just as good those written by a human.

I was recently scrolling through my own TikTok account when I found a video of someone who had exposed their AI to 1 000 hours of British singer Adele’s music and then requested that the AI write and perform its own Adele-inspired song.

I was stunned to hear that the AI not only wrote a deeply emotional song in the style of Adele, but it sounded exactly like the Easy on Me hitmaker.

AI technology has been going through a period of mass expansion and development over the past 10 years, and its advancements are moving at a rapid pace.

In the 2004 film I, Robot – starring US actor Will Smith – AI robots are used to help human beings with day-to-day tasks and for companionship, but later become sentient and one plots their plan for world domination.

A similar phenomenon has allegedly already taken place in the real world.

In June last year, a Google engineer went on record to state that one of their Google chatbot generators had become sentient.

Blake Lemoine said he had spent hours testing the machine known as Lamda – short for Language Model for Dialogue Applications – and was convinced that the chatbot had gained a consciousness and was consumed by its own dreams, needs, rights and fears.

While some brushed this off as Lemoine’s consumption by AI and its possible trickery, many others began to question whether or not this was the beginning of the next step of human/machine evolution.

Considering the fact that this is only the beginning of AI technology, we are yet to see the ways it will affect or improve the lives of human beings. 

However, when it comes to artistic expression, the possibilities are only terrifying.

Since the beginning of time, art and creativity have been practices of a sacred nature; true expressions of emotion and state of mind; words and art that perfectly portray how we feel.

The most significant trait of art and artistic practice is the personal nature by which it is created – completely within the beauty of the complex human experience.

The threat of AI technology in the creative world may mean the end of record deals, as many record companies can afford to create new AI music from some of history’s greatest musicians, including Michael Jackson, Elvis Presley and Billie Holiday. 

Many of these companies can even afford to create impressive songs and symphonies from some of our biggest talents. 

Today, we have more one-hit wonders than ever, with creators dropping their songs on apps such as TikTok, never to be heard of again. 

Therefore, we begin to understand the threat that technological advancement and AI have on creativity and the creative industry.

The threat could also mean that painting, sculpture, architecture and other forms of expression could become more impersonal.

Is this the beginning of AI as the next step in creative productivity? Is this the beginning of the end for the common creative?

www.samigration.com