Stateless man may work and stay in SA

The Citizen – 21 August 2021

Acting Judge MB Mokoena set aside the minister’s refusal to grant an exemption and a permanent residence permit to Frederick Ngubane and gave the minister 90 days to reconsider his application.

The High Court in Pretoria has granted an order to a stateless man, allowing him to work and live in South Africa while the home affairs minister reconsiders his application for permanent residence.

Acting Judge MB Mokoena set aside the minister’s refusal to grant an exemption and a permanent residence permit to Frederick Ngubane and gave the minister 90 days to reconsider his application.

Ngubane, assisted by Lawyers for Human Rights, initially asked the court to declare that stateless ness was a special circumstance for purposes of the Immigration Act.

But Mokoena ruled that it would be premature to make a pronouncement on the issue before it was established by the department if Ngubane was indeed stateless and before the minister decided if statelessness constituted special circumstances for purposes of the Act.

The judge said the minister was the one to decide, after investigations, if Ngubane was stateless or not and if such status constitutes special circumstances.

Ngubane could again approach the court for relief if he was not satisfied with the ultimate decision. Ngubane alleged he was born in Newcastle in South Africa in 1990, but went to live in Kenya with his mother after his father’s death in 1993.

After his mother was murdered in 2002, he went to live in Uganda with a friend of his mother, but in 2009 returned to SA via Tanzania and Mozambique.

He alleged he was allowed to enter South Africa by producing his birth certificate, but he was robbed of the certificate and that home affairs then refused a late birth registration.

The Ugandan and Kenyan governments confirmed that he was not their citizen but the Tanzanian government linked his origin “to some other East African countries”.

www.samigration.com

 

Home Affairs a byword for corruption, long queues and inefficiency

17 August 2021 – The Citizen

In court papers, , an immigration practitioner since 2007, said that 10 years ago, residence applications were handled in less than six months.

There can be few better, two-word phrases to sum up South African state incompetence and inertia than “home affairs”.

The department is a byword for corruption, long queues and inefficiency.

Now, it emerges, it is also potentially stifling economic growth by slowing down the already long and tedious process for permanent residence permits.

In doing so, it is not only delaying the arrival of badly needed skills possessed by potential immigrants, but is also preventing those immigrants bringing with them millions of US dollars each in potential investments.

According to local immigration practitioners – who are now desperately trying to get the courts to intervene – the shambles at home affairs could be costing the economy between R10 billion and R15 billion a year.

In court papers, Leon Isaacson, an immigration practitioner since 2007, said that 10 years ago, residence applications were handled in less than six months. Now, they take up to six years.

Estimates are that as many as 180 skilled and wealthy people are waiting for their requests to be processed.

Yet, the government continues to dither with border control policy, allowing South Africa to have some of the most porous borders in the world and a tsunami of illegal immigration.

www.samigration.com

Asylum seekers can now apply for residence visas

The Citizen – 22 August 2021

Constitutional Court ruling overturns Home Affairs directive.

 

The Constitutional Court has ruled that asylum seekers whose refugee applications have been refused, can apply for a visa. Archive photo: Ashraf Hendricks/GroundUp

 

If you are an asylum seeker and your application to be a refugee is refused, you are still allowed to apply for a visa. The Constitutional Court ruled this in a unanimous judgment handed down in October.

Background

The case was brought by three asylum seekers whose applications for refugee status had been refused. They each then made applications for visas in terms of the Immigration Act.

Arifa Fahme applied for a visitor’s visa so that she could remain in South Africa with her husband and children. VFS Global, a company contracted by Home Affairs to process immigration applications, rejected her application because she was an asylum seeker. The company said that it cannot issue temporary residence visas to asylum seekers.

Kuzikesa Swinda and Jabbar Ahmed each applied for a critical skills visa. Their applications were rejected because their asylum applications were before the Refugee Appeal Board.

The main reason for all of the rejections, however, was a directive issued by Home Affairs in February 2016. This directive said asylum seekers are only entitled to visas under the Immigration Act when they have been certified as refugees by the Standing Committee for Refugee Affairs. This effectively barred asylum seekers from applying for any type of visa.

High Court and Supreme Court of Appeal

Fahme, Swinda and Ahmed approached the High Court to set aside the directive. The High Court found that the Immigration Act and Refugees Act are complementary and not mutually exclusive. It found that the Immigration Act entitled foreign nationals to apply for a visa or permit.

The court reasoned that there was no reason to exclude asylum seekers from this definition. Also, the court found that denying Fahme the right to be with her family unjustifiably infringed her right to dignity. It ruled that Swinda and Ahmed should be entitled to critical skills visas if they otherwise met the requirements of the legislation.

Home Affairs appealed against the decision to the Supreme Court of Appeal (SCA). The SCA found in its favour. In a nutshell, the SCA found that it was impossible for the applicants to apply for permits in terms of the Immigration Act because such applications had to be made from outside the country.

The case then went to the Constitutional Court.

Constitutional Court proceedings

The Constitutional Court considered two main issues. First, whether an asylum seeker can apply for a permit or visa in terms of the Immigration Act. Second, whether the directive should be set aside. PASSOP (People Against Suffering, Oppression and Poverty) joined the case as a friend of the Court.

Can an asylum seeker apply for a permit or visa in terms of the Immigration Act?

An asylum seeker is a person who has arrived in South Africa who asks to become a refugee. A person is eligible to be a refugee if they are fleeing another country due to persecution for their political beliefs or their membership of a particular social group. When a person enters South Africa as an asylum seeker they may be issued an asylum transit visa. This visa is valid for five days. During this period an asylum seeker must report to a Refugee Reception Office to apply for refugee status. If the application for refugee status is successful, the person is entitled to live and work in South Africa and may apply for permanent residence.

The Immigration Act allows any foreigner to stay in South Africa by applying for two categories of applications: temporary residence permits or permanent resident permits. The Act includes several different temporary residence visas such as spousal visas and critical skills visas.

An application for a temporary residence visa must be made at a South African embassy in the country in which that person lives.

The court found therefore that Ahmed and Swinda could not have applied for their permits in South Africa. Those applications had to be made from outside the country. The court found therefore that the SCA’s ruling in this regard was correct.

But the court then considered whether the directive should be set aside. It found that the directive imposed a blanket ban on asylum seekers from applying for a temporary residence permit or a permanent residence permit. The directive only enabled asylum seekers to apply for a permanent residence permit if they had been certified indefinitely as a refugee by the Standing Committee for Refugee Affairs.

The court then considered whether this particular interpretation of the Refugees Act and Immigration Act was justifiable.

It pointed out that unlike applications for temporary residence permits, applications for permanent residence permits do not have to be made from outside the country. Also, the court said, the Immigration Act entitled “any foreigner” to apply for a permanent residence permit and there was no reason to exclude asylum seekers from this definition.

The court noted that to request Fahme to leave the country and leave her family behind would be unfair and unjust.

For all these reasons the court found that to the extent that the directive imposed a blanket ban on an asylum seeker from applying for a permanent residence permit it was unlawful and must be set aside.

What about the applications of Swinda and Ahmed? The court said that unfortunately they were not in the same position as Fahme. Critical skills visas are a category of temporary residence permits visas and such applications can only be made from outside the country. However, the court pointed out that the Immigration Act entitles a person applying for a temporary residence permit to apply for an exemption from the requirements of the Act. This meant that Swinda and Ahmed were entitled to apply for an exemption in order to apply for their visas locally. The court pointed out that there was good reason to allow asylum seekers to apply for an exemption because they often do not have proper documentation and cannot return to their country of origin. The court found that to the extent that the directive imposes a blanket ban on asylum seekers from applying for a temporary residence permit it was unlawful and must be set aside.

Why this judgment is important

Having worked in a state institution assisting refugees and asylum seekers for more than a year, I have witnessed first hand their plight. The asylum system in South Africa is critically understaffed and under-resourced. Many asylum seekers are struggling to regularise their stay and have no proper documentation. They need this in order to open bank accounts, find employment, run their businesses and improve their quality of life.

This judgment provides an alternative avenue for them to make a home in South Africa by applying for permits in terms of the Immigration Act. Hopefully the judgment will be a reminder that South Africa belongs to all who live in it, whatever their background or immigration status.

www.samigration.com

DA calls on Motsoaledi to urgently deal with long queues, delays at Home Affairs offices

The Citizen – 20 August 2021

The party said it has been inundated with complaints from outraged citizens that are unhappy about the service at various home affairs offices.

The DA says its recent oversight visits to home affairs offices in Benoni and Edenvale in Ekurhuleni, Gauteng have revealed several concerning shortcomings.

The party has called on Home Affairs Minister Dr Aaron Motsoaledi to urgently review his department’s current system to manage long queues and excessive delays at home affairs offices across the country.

DA MP and spokesperson on home affairs, Angel Thembisile Khanyile, said the party had been inundated with complaints from outraged citizens that lamented the service at various home affairs offices.

“At the Edenvale offices, officials were directing people to the Benoni and Kempton Park offices as their systems had been offline for days.

“The DA was informed that not only had no work been done for two days, but that this systems failure was a weekly occurrence. The continuous cable theft in the area prompted the office to install an MTN router, but this failed to solve the problem,” Khanyile said in a statement on Saturday.

The MP said the DA had received a report alleging that the home affairs offices in Benoni were only assisting five people per hour, while people were forced to stand in long queues without a queue marshal to ensure that social distancing is observed.

“Upon our arrival, we found a long queue with people indicating that they have been waiting for assistance since 07:30 that morning. The manager at this office informed the DA that they too were struggling with their system and that it was offline. Both sites had also only capacitated their offices to 50% due to Covid-19 regulations.”

Khanyile said while the DA understood that some services would be unavailable due to restrictions pertaining to level 3 of the lockdown, it was simply unacceptable that Motsoaledi and his department were yet to come to a satisfactory solution.

“South Africa has experienced various levels of restrictions since March last year. Everyone has had to adapt and ensure service delivery, and it is high time that the ANC government did the same.

“Minister Motsoaledi is a medical doctor to boot. The DA would assume that he would know better than anyone the risk of contracting Covid-19 in long queues where the observance of social distancing becomes less the longer people are forced to wait in queues and then face the possibility of having to return the next day.”

The DA said the Department of Home Affairs could easily solve its challenges by availing some services online as well as enabling people to reserve appointment slots.

www.samigration.com

 

Bushiri’s home affairs capture

City Press – 22 August 2021

Investigators unearth ‘mind-numbing’ evidence on how officials aided and abetted fugitive pastor.

Fugitive preacher Shepherd Bushiri so effectively captured the department of home affairs that he had several of its directors, adjudicators, clerks and even an MP acting in unison to circumvent the law and smooth the way for him.

City Press has uncovered evidence of how some senior individuals jumped through hoops to secure permanent residency permits for fraud accused Bushiri, his wife Mary and their two young children.

The department has now suspended its permits section’s senior and junior staff members found to have allegedly had a direct hand in the fraudulent process and approval of the Bushiris’ permanent residence applications.

It has subsequently taken disciplinary action against them.

Mutangwa was supposed to have recused himself from adjudicating Bushiri’s application.

An official close to the investigation

The officials include chief director: permits, Ronney Marhule, assistant directors Jurgen Von Wielligh and Elmon Mndawe and permitting adjudicators Maanda Mutangwa and Thobela Mange.

City Press has seen the charge sheets against these officials. The charges include gross dishonesty, gross negligence and noncompliance with the Immigration Act, regulations and standard operating procedures.

WEB OF EVIDENCE

Insiders close to the investigations into Bushiri’s departmental capture say the investigators uncovered “disturbing information that our state security has, and is, being used” to move Bushiri in and out of the country while he is a fugitive.

The couple fled to Malawi last year while on bail in the fraud and money laundering case.

Some of the suspended senior officials have allegedly approached senior ANC and government leaders to seek a “political solution” to the charges against them. They are also lobbying for the criminal action against them to be stopped.

Home Affairs Minister Aaron Motsoaledi is said not to be entertaining any conversations on the case and any other matters related to the Bushiris and the implicated officials given that “he is fully aware of the tremendous amount of political pressure his team is being placed under to make this go away”.

Investigators stumbled on an amazing web of evidence revealing and connecting how the department’s directors worked to pave the way for Bushiri and his wife’s applications for permanent residence.

This was despite the many red flags which would ordinarily have had the applications thrown out.

HOW THE RESIDENCY PERMITS WERE PUSHED THROUGH

Evidence seen by City Press suggests that Bushiri’s alleged capture of the permit section started in March 2016, following the submission of his and his family’s applications for permanent residence at the South African embassy in Malawi’s capital, Lilongwe.

It’s the events that follow which riled Motsoaledi and director-general Tommy Makhode, when investigators briefed them on the rot in the department. The investigations revealed how, among other findings:

. An MP approached a coordinator at the National Assembly “to assist with an enquiry for an application of Mr SH Bushiri” which was subsequently sent through to the department’s chief director: permits section, Marhule for processing;

. Reference numbers for the Bushiris’ applications were unlawfully created by the department’s adjudicator, Mange, without having received the original application documents from Lilongwe. It would later appear that Marhule failed to inform the investigators that he had sent Bushiri an email in February 2016, advising him on the application process to follow. This move would later see both men, along with other officials, facing serious criminal charges; and

. Officials deliberately and fraudulently manipulated the Bushiris’ applications to ensure their smooth passage through the system without incident.

OFFICIALS’ BEHAVIOUR WAS ‘SERIOUSLY MIND-NUMBING’

Evidence before the Hawks and the department further revealed how senior officials processing the Bushiris’ applications turned a blind eye to a bank statement the self-proclaimed pastor attached – reflecting church offerings and tithes – to his application that had been issued in the name of Shepherd Bushiri Investment (Pty) Ltd Ministries.

“There is no explanation to justify why the attached bank statement for a [church] ministry was utilised to support an application for a company listed in the application – namely Shepherd Bushiri Investments (Pty) Ltd. The said bank statement was utilised to recommend approval for permanent residence despite the fact that Prophet Bushiri Ministries NPC is a nonprofit organisation.

“A nonprofit organisation cannot be regarded as a business. The bank statement for Prophet Shepherd Bushiri Ministries NPC clearly shows that the money in the account was generated locally – deposits from church goers, tithes and offerings. The money is thus not the personal funds of [Bushiri], but that of the church,” read the findings of one of the investigation reports seen by City Press.

The investigation further revealed the extraordinary lengths that one adjudication official, Mutangwa, would go to, when they proceeded with Bushiri’s application rather than flagging it for being in violation of his visitor’s visa condition by working without a permit. Not only did the official ignore the red flags, he changed the status of Bushiri’s application in order to protect it from scrutiny.

“Mr Mutangwa was fundamentally grossly negligent in that he intentionally changed the application form,” the report reads.

An official close to the investigation said the significant amount of evidence showing the lengths to which officials went to secure Bushiri and his family’s permanent residency permits was “seriously mind-numbing” as investigators “couldn’t understand the motivation to commit such fraud by some officials such as Mutangwa”.

Further probing uncovered that Mutangwa knew Bushiri personally and was in fact moonlighting as the controversial pastor’s bodyguard.

“Mutangwa is a close acquaintance of Bushiri as he is alleged to be his personal part-time security guard. Mutangwa was supposed to have recused himself from adjudicating Bushiri’s application. The personal relationship could have affected his objectivity.

“Mutangwa’s Facebook posts indicate a case of a personal relationship between the two,” the report states.

There is no reasonable explanation found to this effect. This could have been a reasonable ground for refusal of the application.

Investigators in the report

Mutangwa, along with his immediate superviser, Von Wielligh, are on suspension pending disciplinary action.

Investigators found that Von Wielligh had acted negligently in that he passed Bushiri’s applications during a quality assurance process, despite the pastor having already violated the condition of his visitor’s visa “for conducting work in the republic without a work permit”.

“This information is readily available on the departmental records and the copies of the visas were attached to Bushiri’s application for permanent residence,” read the findings in the report.

City Press has also been told that at the time of adjudicating Mary Bushiri’s application for permanent residence, information regarding a fraudulent exemption certificate was on the department’s records “but was not requested by the processing officials”.

An exemption certificate is one of the documents foreign nationals need to secure a South African identity document.

“There is no reasonable explanation found to this effect. This could have been a reasonable ground for refusal of the application,” investigators noted in the report.

Makhode declined to comment on the allegations. “Whether or not the allegations have merit, we do not comment on the department’s internal processes,” said the director-general.

www.samigration.com