Motshekga says migrant pupils without documentation should be admitted to schools

The Citizen – 20 August 2021

This comes after it was reported that pupils without birth certificates were denied entry into schools.

The minister of basic education, Angie Motshekga, said migrant pupils should neither be refused entry to schools in the country nor removed from them if they do not have proper documentation.

This comes after it was reported that pupils without birth certificates were denied entry into schools.

EWN reports that Motshekga has since written to the African Diaspora Forum to allay the structures concerns.

Motshekga reportedly said that though the schools’ admission policy permits schools to ask for documentation, this did not mean pupils could be refused entry if they did not have any.

Furthermore, Motshekga explained that in cases where the documents have not been finalised within the three months stipulated, that the pupil’s parents should be provided with assistance.

It was reported that schools found guilty of admitting pupils without the necessary documents as per the Immigration Act could be fined up to R5,000 per pupil.

The chairperson of the African Diaspora Forum, Dr Vusimuzi Sibanda, has since welcomed Motshekga’s assurance.

Sibanda was quoted as saying that it was not only migrant children who had been affected by the policy but South African children as well.

The department of education has issued a directive that schools across the province should ensure that all learners are admitted while the ministerial task force on the matter is being finalised.

www.samigratio.com

 

Skilled workers locked out of Australia as ‘global talent’ visas surge

Sydney Morning Herald – 19 August 2021

The federal government has issued more than 12,000 of its controversial new “global talent” visas during the pandemic, while nearly 19,000 existing holders of previously issued skilled visas have remained stuck offshore.

The global talent 858 visas are a fast track to permanent residency for skilled migrants, introduced in December 2019. Experts have warned the economic value of the visa is unproven and “murky” criteria leaves it open to influence peddling.

Figures obtained by The Sun-Herald under freedom of information laws reveal 19,345 holders of temporary skilled visas were outside Australia in April this year, with more than 7500 of these visas due to expire by the end of this year, and another 9200 by the end of 2022. The figures include the 457 and 482 temporary skills shortage visas and the 491 and 494 regional skilled visas.

Many of these people were caught outside Australia when the borders closed or needed to travel for urgent personal reasons and have been unable to obtain a travel exemption to return to their homes and jobs in Australia. Some may have left permanently, while others are still hoping to return.

Former deputy immigration secretary Abul Rizvi said the loss of these skilled workers would be a brain drain for Australia and affect our international reputation.

“It’s certainly damaging when we’re talking about the loss of specific skills that will be hurting the Australian economy, but more importantly it’s probably a reputational damage and damage in terms of the individuals affected,” Mr Rizvi said.

“These are people, their lives are being put into serious damage and upheaval and I think if we had greater quarantine capacity we may have been able to let more of them in.”

He said the exemption process was “a bit of a mystery” given British far-right commentator Katie Hopkins was determined to have a critical skill, whereas people with more significant qualifications were locked out.

The government appears to be ramping up the new global talent (858) visa program instead, which it says is “designed to prioritise exceptional talent and provide a pathway to permanent residency”.

A spokesperson for the Department of Home Affairs said it issued 12,167 global talent visas from March 21, 2020 to June 30, 2021 but only 367 had entered the country, with many of the applicants having applied while already in Australia. The allocation for the 2021-2022 migration program is 15,000.

The Grattan Institute’s analysis earlier this year said the new Global Talent Program “should be scaled back while its value is assessed.”

Grattan fellow Henry Sherrell said: “With employer sponsorship, it’s clearer to meet a set of objective standards, whereas with global talent, it’s a lot more murky.”

Mr Rizvi warned the global talent visa effectively undermines every other skill stream visa because it is more flexible, while the “lack of legal criteria leaves it much more exposed to the risk of cronyism”. He said public servants need legal criteria in order to withstand requests from influential people to do a favour for a mate.

The Home Affairs spokesperson said more than 30 per cent of the global talent visas were in digital technology, including experts in quantum computing, blockchain and long-range wi-fi.

About a quarter were researchers and entrepreneurs in health and life sciences, 20 per cent were specialists in resources and clean energy, while many of the remainder were working across fields such as biotechnology and the development of advanced manufacturing materials.

The spokesperson said the 482 temporary skill shortage visa and the 457 visa it replaced were for the benefit of businesses that need critical skills that can’t be filled by Australians.

“Australia remains committed to using skilled labour to support economic recovery from the pandemic, but this needs to be balanced in the context of ensuring the health and safety of all Australians,” the spokesperson said.

Labor’s home affairs spokeswoman Kristina Keneally said there had been numerous calls to review or scrap the global talent visa.

Lives in limbo

Katie Morris, 30, lived in Australia for seven years and considers Sydney home, but has been stuck living with her parents in Kansas City since the start of the pandemic.

Ms Morris flew to the United States at the start of March 2020, before there was any talk of a border closure or warnings not to travel, to see if she was a stem cell match for her aunt. (She proved to be a match and ended up donating her stem cells in June; her aunt is now cancer-free).

It was meant to be a 10-day trip but the Australian government shut the international border 24 hours before she was due to fly back. Ms Morris called the airline at 4.30am to try to move to an earlier flight but the next available flight was still due to land in Sydney eight hours after the deadline.

Kuldeep Rawal, saw his wife Renu Dhaka and son Kushaal Rawal, before the pandemic. He hasn’t seen his family for 18 months and is a stranger to his son.

“I was following the rules,” Ms Morris said. “It’s really hard to do something that feels like the right thing, and then have it catastrophically blow up your entire life.”

Before her 457 visa expired in April this year, Ms Morris applied for three travel exemptions to return to Australia but were all denied. In June last year she submitted her application for permanent residency and is still waiting for an answer more than a year later.

Ms Morris has managed to hold on to her job by working remotely but between cutbacks and the unfavourable exchange rate, she can’t afford not to live with her parents while in the US. She is still paying for storage of her belongings, care for her pet dog and her mobile phone back in Australia in the hope of returning.

Kuldeep Rawal, from Stawell in Victoria, is a 491 visa holder working in food services at a hospital who has been separated from his family because of the border closure.

His wife Renu Dhaka and son Kushaal have been stuck in India since early 2020 and have had multiple travel exemptions refused including one submitted by a migration agent.

“Last time I saw my son, he was four months old and it was his second birthday [in June],” Mr Rawal said. “He doesn’t even know who I am. Every time I try to talk to him, he just runs away as he wants to play and I can’t play with him. [With my wife], our relationship is going through a hard time as we just talk and cry about border reopening.”

www.samigration.com

 

Woman guilty of arranging fake marriages between SA women and foreign nationals

26 August 2021 – The Citizen

The Hawks say Nomabandla Manjezi and her partner recruited young women and paid them between R200 and R300 each to marry Bangladeshi nationals.

A 47-year-old suspect was on Tuesday convicted for fraud and corruption for arranging fraudulent marriage certificates between South African women and foreign nationals.

The Hawks have welcomed the conviction handed down to Nomabandla Manjezi by the Specialised Commercial Crimes Court in Port Elizabeth.

Hawks spokesperson, Lieutenant-Colonel Philani Nkwalase, said Manjezi was found guilty on four counts of corruption and two counts of fraud. The matter was postponed to 18 February for sentencing.

“She was arrested along with Abu Bokar, 46, following a tip-off received by the immigration officers about the arranged fraudulent marriage certificates between South African women and foreign nationals. Their operations were accosted during a waylay investigation in March 2017 resulting in them being charged for fraud and corruption.

“During the arrest of the duo, their premises which included a cellphone shop in North End and a house in New Brighton were searched. Consequently, documents linked to their criminal operations were found in a container at the New Brighton premises and were seized for further investigation.

“The Hawks investigation revealed that the duo recruited young women from New Brighton, Kwazakele and Zwide, then paid them between R200 and R300 each to marry Bangladeshi nationals, whilst other local women were unaware that they were married to foreign nationals.

“Bokar appeared in the same court on 14 August 2018 and he pleaded guilty on two counts of fraud.

www.samigration.com

 

 

Concourt takes compassionate approach to people who enter country unlawfully

Asylum delayed is not (necessarily) asylum denied

17 August 2021  – Groundup

 

If a foreign national arrives in South Africa unlawfully and takes as long as 15 months to apply for asylum, are they barred from doing so? Is the person liable for deportation or should they be given an opportunity to at least apply for asylum? The Constitutional Court recently considered these questions.

Background

Alex Ruta, a Rwandan, arrived in South Africa in December 2014. He came via Zimbabwe and did not enter the country with a visa.

In March 2016, he was arrested for a traffic offence for which he was later convicted. Once he was detained, the Department of Home Affairs arranged for him to be deported. Ruta, however, opposed this by applying for asylum.

The High Court ruled in Ruta’s favour and found that entering South Africa unlawfully does not bar you from applying for asylum. But the Supreme Court of Appeal overturned the High Court’s decision. Applications for asylum must be made within a reasonable time, the court said. Because Ruta took 15 months to apply for asylum he was barred from doing so and liable for deportation.

Constitutional Court

By the time the matter came before the Constitutional Court, Ruta had already been released from detention due to the earlier High Court order. His application for asylum had been made and the outcome was pending.

Although the case was now moot (hypothetical), the Constitutional Court nevertheless decided to rule on the matter because of its immense public importance. Lawyers for Human Rights represented Ruta. The judgment by Justice Edwin Cameron was unanimous.

The court had to decide two related issues. First, how a conflict between the Immigration Act and the Refugees Act should be resolved. Second, what effect if any a delay has on an application for asylum.

The principle of non-refoulement

The court pointed out that the Refugees Act embodies the international human rights law principle of non-refoulement. This is the principle that no person may be returned to a country where they are at risk of their fundamental rights being violated. This is the foundational principle of refugee law which informs the interpretation of every provision of the Refugees Act.

Also, the principle has a bearing on how any dispute related to an asylum seeker or refugee should be resolved. This would mean that the principle even trumps provisions of the Immigration Act to the extent that they apply to refugees.

The court highlighted that the Refugees Act provides protection for both de facto and de jure refugees. The latter refers to those who have already been granted asylum under international law whereas the former refers to those whose refugee status has not yet been determined under South African law. The effect of this principle means that a state is obliged to provide every person with an opportunity to at least apply for asylum including those who have entered a country unlawfully.

The conflict between the Immigration Act and the Refugees Act

Because Ruta entered the country illegally, he fell within the definition of an illegal foreigner in the Immigration Act who is liable for deportation. However, the principle of non-refoulement emphasises the need to give foreign nationals the opportunity to apply for asylum. The court had to decide how to resolve this tension between the Immigration Act and the Refugees Act.

The Minister of Home Affairs argued that only foreign nationals who enter South Africa lawfully and obtain an asylum transit visa at the border may apply for asylum. He argued that anyone else should be regarded as an illegal foreigner who is liable for deportation. The Minister’s view was that the Refugees Act has no bearing on Ruta’s case.

However, the court rejected the Minister’s argument for several reasons. First, it pointed out that the Minister’s argument was based on a flawed premise: namely, that allowing Ruta to apply for asylum meant that South Africa’s borders would be rendered porous enabling all and sundry to cross the border at whim.

But, the court found that the Refugees Act does not undermine South Africa’s sovereignty or national security in any way. To the contrary the Refugees Act only extends protection to bona fide refugees and allows fraudulent or dishonest applications to be rejected. Also, it enables the Minister to withdraw a person’s refugee status in some circumstances. The court said it was clear that the Refugees Act takes both a compassionate and pragmatic approach to how refugees should be accommodated while respecting national sovereignty.

The court also pointed out that it was clear from the detailed provisions of the Refugees Act that it is the only piece of legislation that determines who may apply for asylum and how an application for asylum should be made. All of this is absent from the Immigration Act. The court found that the Immigration Act and Refugees Act should be read in harmony.

But there were also other reasons why the approach adopted by the Minister should be rejected. The Minister’s view ignores the harsh reality that asylum seekers in Southern Africa and elsewhere face, the court said. Many people are displaced and find themselves fleeing terrible circumstances.

The Minister’s argument that people in Ruta’s position should merely apply for their deportation to be set aside was misplaced, the court said. The court pointed out that the Minister’s approach fails to recognise that asylum seekers are a vulnerable group who do not have access to the information or resources which would be required to challenge their deportation in court.

The court found that all of this means that a person who has delayed to apply for asylum is still entitled to apply for asylum. This did not mean that delay was irrelevant, the court said. Delay can, for example, be used to determine the authenticity of an asylum seeker’s claim to asylum. But this determination must be left to a Refugee Status Determination Officer to make.

Lastly, the court found that Ruta’s conviction for traffic offences did not bar him from applying for asylum. This was because the prohibition for applying for asylum if one has been convicted of an offence only applied to offences committed outside of South Africa.

Why this case is important

This case emphasises that South Africa has an obligation under international law to provide every person who enters its border with an opportunity to apply for asylum. The court has taken a compassionate approach to the situation of many asylum seekers who for various reasons are unable to enter the country lawfully.

The case also prevents undue delay being used as a reason to reject an application for asylum.

Taken together, these two findings acknowledge that asylum seekers face difficult circumstance. They are often fleeing from gross violations of their human rights. It is hoped that this compassionate approach to immigration will be be adopted by Home Affairs.

www.samigration.com

 

Qualifying Angolan nationals will soon be able to apply for an exemption permit to live and work in South Africa

Ensight – 28 August 2021

The South African Department of Home Affairs has announced that it is inviting qualifying Angolan nationals to apply for an Angolan Exemption Permit.

This is good news for the many Angolan families who have lived and worked in South Africa for over two decades and were left without a definite route to status in South Africa, when the United Nations Refugee Agency (UNHCR) issued a cessation of refugee status for Angolans in 2013. 

As an interim solution to this dilemma, South African introduced the Angola Special Permit in 2017, affording the holder a visa valid for four years.

Angolan nationals falling into the below categories (including Angolan Special Dispensation permit holders) will be able to apply for the Angolan Exemption Permit:

• Angolans who were issued with the Angolan Cessation Permit but did not apply for the Angolan Special permit.
• Angolans who were issued with the Angolan Special Permit.
• All Angolan refugees or asylum seekers who were issued with section 24 or section 22 permits before 31 August 2013, the date when the Tripartite Commission Agreement was signed marking the end of the Civil War in Angola.

Spouses and children of the affected Angolan nationals will be allowed to apply for mainstream visas or permits after the main member has obtained their exemption permit. The Department forecasts that 5 000 Angolans could qualify to apply.

Although the holder of the new Angolan Exemption Permit may not apply for permanent residence when the four years expire, the permit will allow the affected persons to continue to live and work in South Africa, thus preventing them from losing their legal status in South Africa.

All applications must be submitted online at the VFS office nearest to the applicant, from 16 August 2021. The turnaround time for the Angolan Exemption Permit to be issued is eight weeks.

www.samigration.com