• The Citizen (Gauteng) - 21 October 2021

LEGAL ACTION: DELAYS OF MORE THAN 6 YEARS TO GET RESIDENCE PERMITS

➜ Immigration agents, clients expect the department to settle out of court.

No fewer than 180 would-be immigrants and their immigration services providers have hauled the department of home affairs to court for delays of six years and more in attempting to secure permanent residence permits.

The court documents say the applicants have several million US dollars to invest and possess critical skills that are sorely needed in the SA economy.

Some have been waiting more than six years for permanent residence as home affairs “has all but collapsed”, according to court papers. The delays in processing permanent residence applications is costing the economy R10-R15 billion a year.

Deposing for the applicants, Leon Isaacson, director of Global Migration Services, said he had been an immigration practitioner since 2007, at which time permanent residence applications were handled within six months.

This was because regional home affairs offices handled them. Then came a change. In 2010, then home affairs minister Nkosazana Dlamini-Zuma centralised permanent residence applications in the Pretoria national office, prolonging the process from six months to three years.

In 2015, VFS Global was brought on board and the application process was prolonged from three to six years. “The inordinate delay in processing permanent residence applications has led to a decision, being made by the department, not to accept any further permanent

R10-15bn annual cost to economy of failure to process residence permits. residence applications,” deposed Isaacson.

“This decision effectively deletes Section 25 of the Immigration Act, which provides for permanent residents permits. It has blocked millions of US dollars, together with essential skills, from being invested into the SA economy.”

The department has all but collapsed, added Isaacson. “Not only is it not receiving any more permanent residents applications, and not capable of processing the existing permanent residence applications it has received, it has decided to make its job even more impossible by reviewing every permanent residence permit it issued from 2004,” said Isaacson. “An impossible undertaking.”

As a result of these delays, the department has failed to deliver on its legislative mandate and the applicants are asking the court to intervene on their behalf. Isaacson added that the Covid-19 pandemic has also aggravated delays in the issuing of temporary residence visas inside South Africa for up to six months.

The permanent residence permit backlog has been building for a while, and Global Migration Services, one of several immigration services providers bringing the case on behalf of the would-be

immigrants, said it felt compelled to take the matter to court on behalf of 180 applicants who have been waiting for up to six years for their applications.

“It is highly prejudicial for long-term residents to be without permanent residence, as banking facilities, education, employment and related issues are dependent on this status,” said Isaacson.

He added that home affairs was likely to settle rather than go to court, having indicated it did not want more litigation.

There also appears to be a growing cleave between the office of the presidency, which favours opening SA’s economy to skilled immigrants, and the department of labour, which appears less than enthusiastic about hiring foreigners. Isaacson suggested that home affairs was caught in the middle of this rift and paralysed into inaction.

www.samigration.com

 

Zimbabweans ask Gauteng High Court to declare them permanent residents 

Moneyweb -  21 Oct 2021  

Not an unexpected move as their exemption permits granted by Home Affairs expire in November. 

Zimbabweans say they have a legitimate expectation of being granted permanent residence once their exemption permits expire next month. 

The Zimbabwean Exemption Permit Holders Association, representing roughly 250 000 Zimbabweans in SA, has asked the Gauteng High Court to declare them permanent residents, as their Zimbabwe Exemption Permits expire in November 2021. 

They are also asking the court to direct the Minister of Home Affairs to issue them with SA ID documents on the grounds that they are permanent residents of SA in terms of the Immigration Act read together with the Identification Act. 

They are also asking the court to review and set aside the decision by Home Affairs not to renew residency permits “knowing that the holders of the permit have known no other home besides South Africa for more than 10 years”. 

This decision was unconscionable, irrational, unreasonable and unconstitutional, according to the court papers. 

Zimbabwean Exemption Permit holders have a constitutional right to an equal path to citizenship in SA, and that right is being withheld, the association says. 

Permit evolution 

In April 2009, cabinet approved what was known as the Dispensation of Zimbabweans Project (DZP), allowing permit holders to work, conduct business and study in SA. 

According to Home Affairs, 295 000 Zimbabweans applied for the permit and just over 245 000 were issued. 

This was an attempt to regularise the residence status of those Zimbabweans residing illegally in SA due to political and economic instability at home. 

Those permits started expiring in December 2014, prompting Home Affairs to introduce a new permit scheme called the Zimbabwean Special Dispensation Permits (ZSPs), which were valid for three years. 

Nearly 198 000 ZSPs were issued, according to the Department of Home Affairs. When the ZSPs expired in 2017 they were replaced by Zimbabwean Exemption Permits, or ZEPs. 

These permits, like their predecessor, allowed Zimbabweans to work, study and conduct business in SA, but were not renewable and did not entitle the holder to apply for permanent residence in SA. 

According to papers before the court, these permits were issued in terms of Section 31 of the Immigration Act which allows the Minister of Home Affairs to grant foreigners the rights of permanent residence for a “specified or unspecified period when special circumstances exist” that justify the decision. 

The applicants in the case say the ZEP is a permanent residence permit valid for a specific period of time as allowed by the Immigration Act, and that they are therefore entitled to ID documents. 

‘Legitimate expectation’ 

“It is further submitted that the holders of Zimbabwean Exemption Permits have a legitimate expectation for the renewal of their current permit, and for permanent residence, without any further conditions, and the right to apply for citizenship in the Republic of South Africa

According to Advocate Simba Chitando, who is representing the applicants in the case: “The problem faced by many hundreds of thousands of Zimbabweans in SA is that they have been here for 10 years or longer under a variety of different permits, and it is generally conceded that they make a huge contribution to the SA economy, yet these permits do not allow them to enjoy the benefits that come with permanent residence, such as full access to banking facilities, or the right to accumulate pension savings. 

“We argue that it is past time to grant permanent residence to those Zimbabweans who have been living and working in SA in a kind of no-man’s land. We believe it is reasonable to expect to be granted permanent residence when the ZEPs expire, which they do in November 2021.” 

www.smigration.com

200 000 Zimbabweans Panic Over SA Work Permits

 

20 October 2021 – Zimeye

By A Correspondent- Almost 200 000 diasporans using Zimbabwean Special Dispensation permits (ZSDP) in South Africa have been unsettled by the host country’s delays in renewing their visas.

The Zimbabweans under the ZSDP facility acquired their documents in 2010. They were renewed in 2014 and 2017.

Indications are that the documents will expire on December 31, thus the need for renewal.

Zimbabwe Community in SA chairperson Ngqabutho Mabhena said they were still waiting for the South African Home Affairs minister Pakishe Aaron Motsoaledi to announce the way forward on the permits.
“We had hoped that they would announce it this September, but we are now drawing close to the end of the month. Traditionally, they announce before mid-September. The permit application process normally begins from October 1 to December 31. This was the case in 2010, 2014 and 2017,” Mabhena said.

“We will be contacting the SA Home Affairs ministry to find out what is happening during the course of this week. We are also receiving reports of financial institutions like banks which are asking people to update their accounts since their passports will be expiring or their permits coming to an end.”

Mabhena said the Zimbabwe Community in SA and the African Diaspora Forum were working with the Zimbabwean embassy on the issue.

“In 2010, 295 000 people had applied for the permits and 245 000 of them were issued with permits. By 2017, we had 198 000 that had applied to renew their permits. Our desire is that the holders of the Zimbabwe special permits should be granted permanent resident permits,” he said.

A few weeks ago, the Zimbabwe consul-general to Johannesburg, Melody Chaurura, said the embassy was engaging South African authorities on the issue of special permits.

“We can, however, confirm that consultations on the issue have been underway among the relevant stakeholders in South Africa and the issue has since been submitted to Cabinet for decisions,” she said.

“In this regard, we continue to wait for pronouncements by the government’s competent authorities on the future of these permits. In the meantime, we encourage the holders of these permits to exercise patience and to be watchful for scams.”

South Africa is believed to be home to an estimated three million Zimbabweans; both irregular and regular immigrants.

www.samigration.com

Refugees who arrived after lockdown have no way to apply for asylum

Groundup - 20 Oct 2021

Asylum application backlog set to grow, with Refugee Reception Offices closed since the start of the Covid-19 pandemic.

The closure of Refugee Reception Offices (RRO) since the Covid-19 lockdown last year has left asylum seekers vulnerable to arrest and deportation. The offices remain closed for new asylum applications and in-person renewal of permits that expired prior to March 2020.

“Many newcomer asylum seekers are therefore at risk of arrest, detention, deportation and are struggling to access basic services due to their lack of documentation,” said Attorney Jessica Lawrence, of Lawyers for Human Rights (LHR).

Lawrence said that during a recent meeting, a Home Affairs official said that newcomer asylum seekers should all have been issued with an asylum transit visa at the border, which would normally be extended by an immigration officer later.

“Asylum transit visas are only valid for five days. Though he did not say this, it was clear that he therefore deemed this as appropriate documentation for newcomer asylum seekers pending the re-opening of the RROs,” she said.

GroundUp was unable to get clarification from Home Affairs on asylum transit visas, when its RROs will reopen, and when it will start assisting new asylum seekers.

According to a 30 September circular sent to refugee organisations by the UN Refugee Agency South Africa Multi-country Office (Samco), Home Affairs has resumed permanent residence permit appeal applications from 1 October, and it will start processing permanent residence permit applications only from 1 January 2022.

It is unclear where this leaves refugees who arrived after March 2020.

Victor Chikalogwe of People Against Suffering, Oppression and Poverty (Passop) said thousands of people have arrived in the country since March 2020.

He said Passop has assisted about 200 newcomers to date. The organisation has been issuing “newcomer letters” since the closure of the Cape Town reception office in 2012.

He said the letter could be presented to law enforcement and immigration officers and basic service providers while the newcomer was raising money to travel to Pretoria, Durban or Musina to apply for asylum papers when these offices opened. “We thought newcomer numbers would decrease because of the pandemic but people are still coming,” he said.

Documented asylum seekers and refugees also at risk

All refugee permits that expired on or after the national state of disaster was declared in March 2020 are considered valid under a blanket extension until 31 December 2021, according to Samco. But many institutions, from banks to schools, do not seem to accept this when presented with expired documents.

Home Affairs activated an Online Renewal System in April 2021. By 8 September, it had extended 24,333 Section 24 (refugee status) and 69,185 Section 22 (asylum seeker permits), the department said in a statement.

“The extension applies to people who applied for waivers and holders of asylum seeker visas/permits or refugee status. Holders of such visas are permitted to remain in the country under the conditions of their visas until the expiry of their applicable extension. Those wishing to be repatriated to their countries within this period can depart without being declared an undesirable person,” said Home Affairs.

The extension, however, does not apply to people who entered the country from 15 March 2021. The normal validity period of visas of people admitted into the country from 15 March 2021 applies,” said Home Affairs.

Chikalogwe said Passop has helped 75 people in September who never got responses after submitting their documents online for renewal. “The number of people seeking online renewal help is increasing. Last week, I served three people within a period of four hours.”

A volunteer at Passop, who asked not to be named, said he submitted his documents in June for online renewal and is still awaiting feedback. When he tried to resend his documents in July he received an email from the Port Elizabeth office saying, “Kindly refrain from sending multiple requests. The office will attend to your request immediately when it is open. It is currently closed due to Covid alert level 4.”

Huge backlog and growing

The non-processing of any new refugee applications since March 2020 could have serious implications for South Africa’s refugee response.

Passop and LHR are sceptical that Home Affairs will be able to clear the already massive backlog in South Africa’s asylum system from before the pandemic.

In March, Home Affairs, with $9.6-million in assistance from the United Nations High Commissioner for Refugees (UNHCR) launched the asylum backlog project to clear in four years what was going to take 70 years (at the department’s pace) to process.

Sarah-Jane Savage, from UNHCR, said the backlog clearance project started on 1 April. The current phase, the first, involved recruiting and training 37 new members for the appeal authority to add to Home Affairs’ existing three officers. The appeals of 153,391 people need to be heard.

It is therefore too soon to tell if the goal of clearing the backlog by 2024 will be achieved. The project was also meant to prevent another backlog building up in the meantime. It appears this is not happening.

The quality of decision-making on asylum cases by Home Affairs “is resulting in more people actually joining the backlog”, says the manager for LHR’s Refugee and Migrant Rights Programme, Sharon Ekambaram.

The LHR says it has seen an increase in rejections of people from Ethiopia and the DRC. Individual assessments appear not to be done. LHR is seeing Refugee Reception Officers simply duplicating the reasons they give for rejecting one person’s asylum claim on different individuals’ applications.

Hlengiwe Mtshatsha, attorney at LHR, said the backlog is building up again because asylum seekers are referred back to be re-interviewed every time the high court on judicial review overturns a decision on their status.

Mtshatsha said that they have noticed that people who applied for permanent residency will get a notice of intention to withdraw their refugee status or in some cases a withdrawal notice. They have 30 days to appeal. After that, they lose their refugee status and are classified as “illegal foreigners”, and will be notified to leave South Africa within 14 days.

Chikalogwe said appeals against the withdrawal of refugee status were also piling up.

GroundUp has tried numerous times since 16 September to get clarity from Home Affairs on a number of issues addressed in this article, but to date no clarification has been forthcoming from the department.

www.samigration.com

 

Unmarried father may register child under his surname without mother’s consent

 20 October 2021 – City Press

 

Home Affairs says that both parents must do the notification of birth.

 

Retiring Chief Justice Mogoeng Mogoeng has warned that even rapists who are “curious” about the babies who are born as a result of their act of violence will be able to go to the department of home affairs and register the child under their surname.

The Constitutional Court declared section 10 of the Births and Deaths Registration Act unconstitutional last week, but in a minority ruling Mogoeng differed from eight other judges.

The Centre for Child Law argued that it was unconstitutional to prohibit an unmarried father from registering his child’s birth under his surname at home affairs if the child’s mother is not present.

This is unfair discrimination against the child, the centre said.

In its ruling, the Constitutional Court upheld an earlier ruling of the Makhanda High Court in favour of a South African father who could not register his daughter, who was born in Makhanda in 2016, with home affairs because the South African visa of the mother, a citizen of the Democratic Republic of Congo (DRC), had expired shortly before birth.

They were previously married in the DRC in accordance with customary law, but such marriages are not registered in the DRC. Home affairs considered the couple unmarried.

Acting Judge Margaret Victor said in the majority ruling that there were cases where consent, for whatever reason, could not be obtained from the mother.

There are cases where the mother disappears and the child is left with the father.

The law also does not provide for cases where one parent is a South African and the other a foreigner without a valid passport or visa.

Victor said the security measures in the law were adequate. Regulations in the law require, among other things, an identity document, fingerprints and the child’s biometric information.

An argument was presented before the court that a married father can be trusted without further ado, but an unmarried one automatically arouses suspicion.

Victor said a married father could just as easily forge a marriage certificate and commit human trafficking.

Section 10 unfairly discriminates against children born out of wedlock because it limits the father’s rights to register the child under his surname.

However, with the consent of acting judge Rammaka Mathopo, Mogoeng said one of the inherent dangers of such a relaxation of law was human trafficking.

A father who conceives a child after having sex with the mother only once or a few times in an informal relationship, or a rapist who has developed a “curious interest” in the child he has conceived, falls into the category of unmarried fathers.

Mogoeng said: 

These factors are strong warning signs against the proposed action to relax the critical safety measures in the legislation.

One of the inherent dangers “of giving any man carte blanche” of registering a birth without the mother – to whom he is not married – confirming paternity is human trafficking. It is not enough for the man simply to say he is the father without first hearing from the mother.

Mogoeng said that if a couple chooses to have children outside marriage, the existence and characteristics of such a relationship are more difficult to prove than in a marriage.

Marriage is a centuries-old institution from which binding legal, moral and societal duties arise. Marriage and family are vital institutions that have a profoundly beneficial role in the education of a child.

“It is an oversimplification to treat marriage simply as a piece of paper,” he said, because marriage is the foundation for establishing a stable and functional family unit.

Mogoeng said the distinction for unmarried fathers has an important and dignified societal purpose. This is to entrust the welfare and protection of a child to the mother and not to an unmarried father whose status – as a father – and commitment to the child’s wellbeing are not recorded and can therefore not be assumed.

The fact that the law does not allow unmarried fathers to register their children’s births unconditionally is due to their choice to remain unmarried.

The law does not prevent anyone from getting married and getting legal rights and privileges from a marriage, Mogoeng said.

Marriage is not for an “elite club” and it is not an economic issue: 

It’s a matter of choice. In this case, marriage is not an instrument of discrimination.

It is in the child’s best interest to be practically and more meaningfully connected to a loving and responsible father, “not just any man who has begotten him or her”.

The mother is the most suitable person to say whether the unmarried man who claims to be the father is indeed the father and a responsible father. That is why her consent is needed, Mogoeng said.

www.samigration.com