Home affairs stuck in costly legal limbo, worsened by Covid

15 Fe

bruary 2022 - businesslive

 

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

 

 

 

Bribery and corruption: an inside look at the dealings between some Home Affairs officials and foreign nationals

Weekend Argus -  11 February 2022

Cape Town - For as little as R300 you can buy safe passage into the country as corruption and greed permeates South Africa’s border control.

The Department of Home Affairs has confirmed it takes just a few hundred rands as desperate and corrupt officials accept bribes from foreign nationals that need various documents.

Documents like citizenship and asylum papers can go for up to R200 000 but the Department of Home Affairs warned against the practice.

After a series of corrupt officials were arrested last week, Home Affairs Minister Aaron Motsoaledi said: “If you are conducting your illegal operation at the Department of Home Affairs, law enforcement is coming for you. You are going to face the full might of the law.”

Motsoaledi said they were hot on the trail of corrupt officials and that undercover teams, along with the Hawks would unearth the corrupt.

Two weeks ago, the Bellville Specialised Commercial Crimes Court convicted former Home Affairs Official Joseph Lebitsa on eight counts of corruption. Three more officials were arrested in Ermelo, for demanding money from foreign nationals who run businesses in the town.

“Some of these officials allegedly took as little as R300 to allow people to enter the country without proper documents. To me, this is not just crime or corruption, but it is an absolute disgrace and an act of treason against one’s country.”

Weekend Argus spoke to a foreign national from Pakistan, who agreed to talk anonymously.

“If new people come, they can charge up to R200 000 and the money is given to immigration people and they share it.

“There is someone who has a connection with Home Affairs at the airport. They bring the people from outside and the money is given to immigration and they release the people to come into South Africa without papers.”

A police officer, who cannot be identified, said often the game would be given away when the system would be updated in minutes after the foreigner had supposedly crossed the border.

“Foreign national comes here for a study or holiday visa, he hides his passport away and gets an asylum (document). When he goes back to his country, he jumps the border and pays the official who lets him go through and stamps his passport. When you have a permit like that in your passport, you need to have multiple entries to extend it.

“When he arrives at the airport, their system will show this man did obey by the rules and regulations and where we pick it up is our data, it shows a foreigner going over the border and getting stamped out and 10, 20 minutes later he is stamped back in again.”

“There was a list of Home Affairs officials’ stamps that was stolen. Each official at Home Affairs is issued with a date stamp. Each date stamp has a number at the bottom right hand corner, for example 32 would belong to a certain staff member. That is how stamps are traced to a specific official.

“During a joint operation, stamps were found in possession of foreigners which were used to extend people’s asylum.”

An official at Home Affairs said only their staff were skilled to determine whether a document was fake or not.

He said it depended on details such as the font, watermark or fake reference numbers, which would give the game away.

He added corruption was so rife, that a low-income clerk would accept payment to high-ranking officials, making sure they had regular customers.

“Pakistanis will call an official, they are legal but they want citizenship as soon as possible. They just buy it from officials, they get corrupted because they are offered money, like R70 000 and R90 000, R100 000, when they are approached in top levels.

“He asks the corrupter how long do you want to stay here, then he puts down a date for his prerogative. He chooses a date, but they become greedy and careless and they extend it beyond the date of expiry.

Institute for Security Studies migration expert, Aimee-Noel Mobiyozo said the blame did not only fall on foreign nationals but Home Affairs.

“If the document fraud is for South African documents, this implies people within Home Affairs are involved. This is consistent with our past research that has consistently demonstrated that corruption is rife within Home Affairs.

“Cape Town closed its refugee reception office in 2012. This was ruled illegal and Home Affairs was ordered to re-open the office in 2018.

“This has not happened to date and it means that people requiring documents are struggling more than ever to access them legally.”

www.samigration

 

 

 

South Africa to investigate foreigners with permits in February

10-02- 2022 – Zimbabwe Mail

The South Africa Department of Home Affairs will begin a Citizen Authentication System  which is set to verify permits and Visas issued to foreigners since 2004.

The operation is aimed at fishing out individuals who fraudulently acquired permits to stay in the country.

The Home Affairs Minister Aaaron Motsoaledi said the need to review the permits came after realising a trend emerging from the outcomes of cases involving prominent people investigated by the Department’s Counter Corruption Unit, which investigates wrongdoing by departmental officials.

“In November 2020, during a high-powered investigation, I was alarmed when 14 members of the permitting section signed a petition demanding that the Counter Corruption unit should stop investigating their errors. This admission strengthened my resolve to have a more transparent permit issuance regime.” He said.

www.samigration.com

United Nations confirms SA not obliged to give citizenship because of birth

10-02-2022

– 702

 

 

Home Affairs Minister Dr Aaron Motsoaledi gives details of their meeting with the United Nations High Commissioner for Refugees.

The South African Home Affairs ministry has concluded a meeting with the United Nations High Commissioner for Refugees (UNHRC) on various issues concerning refugees in the country.

John Perlman speaks to Home Affairs minister Dr Aaron Motsoaledi for more details.

A few weeks ago, there was a group of NGOs and human rights groups that clubbed together and marched to Home Affairs and demanded that every child born of foreign parents who are born on our soil must get our birth certificate and citizenship.

Dr Aaron Motsoaledi, Minister of Home Affairs

I came out to the media and said we are not obliged to do that and there is no law that forces us. Now the United Nations yesterday accepted it. The United Nations said no there is no obligation on any country to give you citizenship because you were born there.

Dr Aaron Motsoaledi, Minister of Home Affairs

www.samigration.com

 

 

Kind Regards

 

 

How to switch to a Skilled Worker visa in the UK under new rules

Businesstech – 10-02- 2022

Under new rules, workers in the UK who hold a student, youth mobility scheme or intra-company transfer visa are now allowed to switch to a Skilled Worker visa without having to leave the UK, says Darren Faife, managing director, business immigration at Sable International.

Faife takes a closer look at the conditions needed to make this switch.

Switching visas

The Youth Mobility Scheme visa, previously known as the T5 Youth Mobility Scheme visa, is often referred to as the UK working holiday visa and is a great way to gain international work experience as well as travel throughout the EU. This visa allows young people (aged 18-30) from certain countries to live, work and travel in the UK for up to two years.

If you’re in the UK on a working holiday visa and secure sponsorship for a job, under the new Skilled Worker route, which came into effect on 1 December 2020, you are now able to switch into the Skilled Worker route from within the UK.

You will need to meet the following requirements:

• You are aged 18 or over
• You have a valid certificate of sponsorship for the job you’re planning to do
• The job offer is for a genuine vacancy
• The sponsor has paid any required immigration skills charge
• The job is at the appropriate skill level
• You will be paid a salary that equals or exceeds both a general salary threshold and the “going rate” for the occupation.

How a Student visa can lead to a Skilled Worker visa

Like the Youth Mobility Scheme visa, if you’re in the UK on a Student visa (previously the Tier 4 (General) student visa), you can now switch to a Skilled Worker visa from within the country.

Students with this visa can switch more easily to a Skilled Worker visa because they will enter the job market under the new entrant regulations. The advantage of being considered a new entrant to the job market is that there is a much lower salary requirement.

Usually, someone with a Skilled Worker visa is required to earn a salary which equals or exceeds both a general salary threshold (£25,600) and 100% of the “going rate” for the occupation.

A new entrant, however, only needs to be paid a salary which equals or exceeds both £20,480 per year and 70% of the going rate for the occupation. This is a significantly lower figure and will permit new entrants to be paid a lower salary.

New entrant requirements:

Anyone under the age of 26 years old, would be considered a new entrant to the job market.

Other considerations include:

• Your most recent visa was a Student visa.
• That visa expired less than two years before the date of application.
• In that Student visa, or any previous Student visa, you were sponsored to study one of the following courses (not any other qualifications of an equivalent level):
• a UK bachelor’s degree
• a UK master’s degree
• a UK PhD or other doctoral qualification
• a Postgraduate Certificate in Education
• a Professional Graduate Diploma of Education
• You completed (or are applying no more than three months before you are expected to complete) the above mentioned course, or you are studying a PhD and have completed at least 12 months of study in the UK towards the PhD.

The Graduate visa ‘stepping stone’

After successfully completing your course, you can switch from a Student visa to a Graduate visa, which allows you to stay in the UK and work, or look for work, for two years. If you have a PhD or other doctoral qualification, you will be able to stay for three years.

You can apply for a Graduate visa if:

• You’re in the UK
• Your current visa is a Student visa
• You studied a UK bachelor’s degree, postgraduate degree or other eligible course for a minimum period of time with your Student visa
• Your education provider has told you you’ve successfully completed your course

With a Graduate visa you can:

• Work in most jobs (except as a professional sportsperson)
• Look for work
• Be self-employed
• Continue living in the UK with your partner and children, if they’re eligible
• Do voluntary work
• Travel abroad and return to the UK

The Graduate visa cannot be extended, but you can switch to a Skilled Worker visa which is a route to indefinite leave to remain.

Intra-company transfers and the Skilled Worker visa

Under these new post-Brexit rules, workers who are currently in the UK on a Intra-company transfer (ICT) visa can now switch to a Skilled Worker visa from within the UK. This was previously not possible, and you were subject to a 12-month cooling-off period where you would have to return home before being able to apply for a Skilled Worker visa.

This cooling-off period also applied to Tier 2 (General) visa holders when your visa expired. If you got a new job and required a new Tier 2 visa, you would have to wait until 12 months had passed before applying for a new visa, if you had already left the UK.

In December 2020, the Tier 2 (General) visa was replaced by the points-based Skilled Worker visa. Under the new rules, you can apply for a new Skilled Worker visa from within the UK before your current visa expires.

Unlike an ICT visa, a Skilled Worker visa gives you the opportunity to apply for indefinite leave to remain (ILR) after five years.

Workers on an ICT visa will have to prove the following in order to qualify for a Skilled Worker visa:

• Your job must meet the eligibility criteria.
• You can speak, read, write and understand English

These new rules afford visa holders, who previously had no means to remain in the UK if they wished, the chance to do so. The Skilled Worker visa is a much-coveted visa that presents a route to indefinite leave to remain and possibly citizenship, and the wealth of opportunity that comes with it.

www.samigration.com