Crisis to come at a head at the end of June and July, when applications for visa renewals are submitted

A child waits in line at a department of home affairs office. Picture: SUNDAY TIMES

The Covid-19 pandemic and provisions of the Disaster Management Act have reduced already slow home affairs processes to a crawl, affecting thousands of people and creating a backlog that could take years to clear.

The Covid-19 pandemic is set to further delay and derail home affairs processes, with potentially tens of thousands of people affected.

While the department of home affairs was mandated to limit services at the onset of the state of disaster in March 2020, it has been slow and inconsistent in resuming services. Only visa-related services are being rendered, with no permanent residence or citizenship-related services  permitted.

After initially issuing badly drafted and confusing directives, the department confirmed in March 2021 that it had extended the validity of short-term visas to the end of June, and the validity of long-term visas to the end of July, which allowed breathing room for those whose visas expired during the national state of disaster.

However, the scene is being set for a huge backlog at the end of June and July, when thousands of people must submit applications for renewal at a time when home affairs processes appear to be slower and more inconsistent than ever.

Despite officially not processing permanent resident and citizenship-related applications; home affairs is processing permanent residence applications, but with startling inconsistency. And it is rejecting more than it approves. Applicants are not able to appeal against these negative outcomes since the department is not meant to be rendering these services, which is also going to create a huge backlog once they resume doing so.

It should be noted that the preamble to the act provides, among other things, that visas and permanent residence permits are to be issued expeditiously and on the basis of simplified procedures and objectives without consuming excessive administrative capacity. The department is not fulfilling its obligations in this regard: random rejections are set to create huge administrative burdens for an already severely understaffed department.

Our office is seeing numerous visa and permit applications rejected for reasons that should not apply. In the case of temporary visa applications, where it was once rare for an application to be pending for more than three months, we now have a backlog of up to five months, while the department says it is not dealing with citizenship services, determination of status applications or anything related to them — even inquiries. This raises questions about a backlog existing at all when the department offers fewer services than it did before the pandemic.

In addition, the lack of focus on permanent residence raises concerns that efforts may still continue to remove permanent residency as a status category and eliminate the possibility of becoming a citizen by naturalisation, as regulated in the SA Citizenship Amendment Act. There are signs, based on the department’s white paper of 2017 and the revised immigration bill that is being drafted, that categories of visas and permits in existence might be on their way out, placing holders of these visas and permits in a precarious position.

We are also seeing a growing number of rejections of critical skills visa applications, freelance work applications by foreign spouses of South Africans, and work authorisations for foreigners with retired-people visas. These rejections, often for nonsensical reasons — for example, department staff stating that they could not get hold of an applicant’s employer — strip people of their right to work. Because appeals take so long to process, many applicants risk losing their jobs, adding to the unemployment problem at a time when the government should be supporting the labour market and helping to grow the economy. This situation will result in a flood of applications and appeals when the department resumes full service again.

However, while challenges remain for foreign-born people seeking to live and work in SA, there is a glimmer of hope for SA-born people hoping to work abroad and remain SA citizens. South Africans are frequently stripped of their SA citizenship without warning if they apply for citizenship of another country.

A recent court case launched by the DA challenges this, arguing that section 6(1)(a) of the Citizenship Act of 1995 is inconsistent with the constitution because certain clauses of the act deprive citizens who have assumed foreign citizenship of their right to vote, hold an SA passport and retain citizenship. Home affairs countered that South Africans could retain their SA citizenship — and thus have dual citizenship — if they complied with the steps laid out in the act.

This law states that individuals will automatically lose their citizenship unless they apply for a letter of retention to keep it, and specifically excludes dual citizenship by minors and/or by marriage. As South Africans confronted by job losses and a difficult economic environment look to other countries for opportunities, they should be able to retain their citizenship while abroad — if they follow the processes.

For those who were summarily stripped of citizenship there is hope that while judgment in this case was reserved, if the DA should win they could be permitted to reclaim their citizenship in the future. 

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Politcal parties raised concern of the problem of long queues where often people are turned away because the system is offline.

Minister Aaron Motsoaledi came under fire from some opposition parties in the National Assembly for what they say is the chaotic state of the Home Affairs department.

Political parties raised concern about the problem of long queues where often people are turned away because the system is offline.

During the department’s budget vote debate, parties also questioned why the department has still not introduced an online appointment system.

Inkatha Freedom Party (IFP) Liezl van der Merwe says, “Imagine waking up at 4 am using your last bit of money on transport to go to your local Home Affairs office hoping that today you’ll be able to get an identity document (ID) because that’s what stands between you and a job. It is what stands between you and providing for your family. What stands between you and a brighter future. Then consider the mother who travels to a Home Affairs office in search of a birth certificate that document stands between her and a Sassa grant without which she cannot feed her newborn baby but for many visiting a Home Affairs office in taking a day off work to queue for hours on End only to be told to come back tomorrow because the systems are offline again systems that are perpetually offline have become synonymous with this department.”

Democratic Alliance (DA) Angel Khanyile says, “The issue of long shoes in different parts of the country and by various members of the portfolio committee had been raised on numerous occasions yet the situation remains the same of this country spent days and weeks without being attended to Andrews days off work because the department has not introduced the appointment system.”

Economic Freedom Fighters (EFF) Mgcini Tshwaku illustrates this point by quoting KwaZulu Natal Premier Sihle Zikalala following a recent visit to a Home Affairs Office.

Zikalala said, “There are people who are arriving at Home Affairs at 4:00 in the morning and the home Affairs open at 10:00 where it opens at 8:00 and then people start working at 10:00 and up until 12 and then after that, you find that they’ll system are offline they’ll go to lunch and you will not know what is actually happening. What is happening right now is a crisis everywhere…”

“People are crying about the system being online not being helped up on time by the Home Affairs. So in that budget, we did not see a plan or money allocated to saying that is what we’re going to make sure that none of which I need the money so that you are ensuring that these queues and also the systems which are offline at the Home Affairs are going to be eradicated,” Tshwaku explains.

Motsoaledi acknowledged the problem and assured members that they are tackling it.

“When you listen to members of the opposition parties talking about the documentation you’d think everything in Home Affairs has. I mean all the offices are closed and there’s no work. The challenge about down time which we experience from SITA. We have mentioned it in the portfolio committee. We have got a plan and a program to deal with that. It also disappoints us I must say and I’m not going to hide it,” Motsoaledi says.

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Home affairs minister Dr Aaron Motsoaeldi says that his department is currently working on a number of initiatives that will make travel to and from South Africa – including the introduction of new e-gates and e-visas.

Presenting his departmental budget speech on Wednesday (19 May), the minister said that 10 e-gates are currently installed at Cape Town International Airport with testing taking place on South African travellers entering and departing the country.

He said that his department is now working in collaboration with the department of transport and the Airports Company of South Africa (Acsa) to implement immigration e-gates at the country’s other major international airports. 

This will be done alongside the pilot roll-out of the Biometric Movement Control System (BMCS) at OR Tambo International which will allow for the collecting of important biometric data from travellers.

The e-gates project is aimed at improving passenger processing times and experience while maintaining the security and integrity of the borders.

The system allows South African passport holders travelling internationally will proceed to e-gates for self-service immigration clearance where the following would be performed:

• Biometric verification;
• Passport authenticity and validity checks;
• Checks against the BMCS risk engine; and
• The BMCS will record the movements of persons on the system after all system checks have been successfully performed.

E-visas

Motsoaeldi said that his department would also expand its e-visa system after a successful pilot with a handful of countries.

Initially introduced with Kenya, the programme has since expanded to China, India and Nigeria. Motsloeadi explained that these three countries were chosen as they account for more a third of the world’s population. 

The minister said that e-visas will now be extended to 10 additional countries, including:

• Cameroon
• Democratic Republic of Congo
• Egypt
• Ethiopia,
• Mexic
• Uganda
• Saudi Arabia
• Iran,
• Philippines
• Pakistan

The rollout of more e-visas is expected be beneficial for both tourists and for the local economy as the system significantly reduces the amount of administrative time and requirements required for visitors to enter into South Africa.

The entire e-visa application process takes place online and takes around 20 minutes, provided the applicant has all of the necessary supporting documents ready for submission.

Should one of the required documents be missing, applicants can resume the process exactly where they left off at a later date.

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President Cyril Ramaphosa has said we will not achieve higher rates of growth and employment if we do not implement economic reforms. On his priority reform programme is “the revised critical skills list”. ‘’

Borrowing the wording of the immigration white paper of 2017, Operation Vulindlela says SA’s approach to critical skills and general work visas “should be designed to attract the skills that are needed for the economy to grow and to compete for these skills in a globally competitive market”. This approach has borne first fruit in the revised draft critical skills list that was finally released in February 2021 (originally due in 2018). 

This list, published for comment before finalisation, allows foreigners in possession of the relevant qualifications to apply for a critical skills visa allowing them entry to SA without already having a job — a sensible element of any migration regime. However, the list is based on the conviction that it is possible to perfect a “scientific” approach to define the set of skills that are in critically short supply in SA. This is the wrong approach, for three reasons.

First, the list has been compiled to be as restrictive as possible. The lengthy technical report accompanying the list states that the intention of the consultation process is to reduce the list of critical skills from 126 in the draft (lower than the 170 occupations in the previous 2014 list) to some smaller number. This, it says, without offering any justification, is “absolutely necessary”.

Thus, the new critical skills list continues in the policy tradition that has dominated the management of skilled immigration for two decades: short-sighted tinkering with definitions, categories, quotas and models of skills needs to find a “scientific” justification for reducing skilled immigration to an absolute minimum.

Second, the approach taken seeks to limit immigration to people who have skills that are in “acute” short supply and which cannot rapidly be generated locally.  This presupposes that the country has the ability to produce other skills that are in short supply but are not yet “acutely” absent. This is a strange assumption given the widely shared concern about SA’s skills-production capacity, rendered even more peculiar by the difficulties much-needed teachers and lecturers experience in moving to SA.

Making the best use of SA’s education and training system to maximise opportunities for our own people is, of course, a national priority. In this respect the critical skills list should be read along with another list inspired by the gap between demand and supply of skills in the economy.

The second list is of occupations in high demand (OIHD), published by the department of higher education & training in November 2020 and compiled by the same consultants using broadly the same methodology as the critical skills list. The purpose of the OIHD list is to guide the policies of the postsecondary education and training system to increase the pipeline of home-grown skills. The OIHD list duly identifies 345 occupations in high demand, one of the criteria being that they are “currently in shortage”. 

It is not true to say that it is 345 occupations, however, because one of them is “university lecturer” and an appendix sets out a third list of more than 600 academic fields in which universities report difficulty in filling posts — scores under the heading “Agricultural, Environmental, and Natural Sciences”; more than 100 in “Engineering and the Built Environment”; and even more in “Medicine and Health Science”.  It may be more accurate, therefore, to say the list contains something like 1,000 occupations.

The inclusion of the 600 categories of lecturer that SA’s universities struggle to recruit completely undermines the department’s confidence in the education system’s capacity to provide candidates for the other 345 occupations “currently in shortage” that are excluded from the critical skills list.

A final reason to worry about the “critical skills list” approach to migration reform is that it seems to be disconnected from the fact that the inflow of skilled migrants appears to have slowed to a trickle. Reliable information on such trends is hard to find. Stats SA has published numbers of work and business permits granted for the period from 2011 to 2014, but the only numbers for subsequent years can be found in department of home affairs annual reports.

There are problems with the comparability of these metrics, however, because Stats SA counted permits granted while the department counts the number of applications made. Data is also missing. Bearing these limitations in mind, it nonetheless appears that from 2015/2016 to 2019/2020 only 43,166 applications were made, less than half the 102,982 permits/visas that were actually granted in the shorter period of 2011 to 2014.

The decline appears to have set in around 2015, after which the number of applications recorded in annual reports fell to about 8,000 per year and reached a low of just under 7,000 in 2019/2020. This decline appears to be attributable mainly to a collapse in applications for business and general work visas, which totalled fewer than 1,500 in 2019/2020. Applications for critical skills visas rose from 4,400 in 2015/2016 to between 6,000 and 7,000 between 2016 and 2019, before dropping again to 5,400 in 2019/2020.

Where are we, then, on the vital issue of foreign skills? Nearly four years after the home affairs white paper on immigration policy acknowledged that “the economy is desperately short of skills” and that the government has not “put in place adequate policy, strategies, institutions and capacity for attracting, recruiting and retaining international migrants with the necessary skills and resources”, the government has released a much reduced critical skills list. This list will be used to limit skilled immigration into SA to the absolute minimum — despite business’s constant pleading for a much more open attitude. 

This is entirely the wrong approach. It is hard to understand why a country with a serious skills shortage wastes money and time trying to work out what specific skills to let in. Modern, dynamic economies do not work the way the compilers of the skills lists assume. A 21st century economy is incompatible with an approach to the labour market that is akin to the practices of medieval guilds, which specified who could and could not do what kind of work. Many people’s formal qualifications bear little or no relation to where they end up working.

The irony is that we are devoting all this attention to minimising skilled migration at a time when we cannot control our borders. SA should have a far more open approach to skilled migrants of all kinds: those who are needed by existing companies, those who might start their own businesses, large and small, and those who might train and educate South Africans. All are needed to create jobs. None of these skills will go to waste.

Most importantly, we should go out and market the country as a destination for skilled, energetic and ambitious people. That is what should be on the president’s priority action list, not yet another even shorter critical skills list.

www.samigration.com

Johannesburg - A top Department of Home Affairs official is under fire for approving controversial Malawian fugitive and self-proclaimed Prophet Shepherd Bushiri and his family's applications for permanent residency.

Ronney Marhule, the department’s chief director for permits, has been charged internally for approving the Bushiris' permanent residency applications without proper compliance with standard operating procedures.

Marhule is accused of being party to the recommending and approval of Bushiri and his immediate family’s applications for permanent residency.

An internal home affairs investigation found that since March 2016, when Bushiri’s application for permanent residence was received, its approval has been done without proper compliance with the Department of Home Affairs’ standard operating procedures and in contravention of the Immigration Act.

The department’s evidence shows that the Bushiris’ applications were captured and granted by its officials using the incorrect section of the Act as a result of Bushiri and his wife Mary’s commissions or omissions.

According to papers filed at the Labour Court in Johannesburg, where Marhule was challenging the disciplinary hearing initiated against him, he and three other officials were enablers and facilitators who made it possible for Bushiri to obtain a permanent residence permit.

The department believes this allowed Bushiri and his family to be able to remain in South Africa and commit criminal acts which include fraud, forgery and money laundering charges they are facing and later skipping the country while out on bail.

Marhule hauled Home Affairs Minister Dr Aaron Motsoaledi and director-general Livhuwani Makhode to the Labour Court to urgently challenge the fact that the department had a legal representative in the disciplinary hearing while he did not.

His basis for approaching the court urgently was that he has demonstrated exceptional and compelling circumstances for its intervention in his incomplete disciplinary proceedings.

Marhule argued that because the department was allowed to be legally represented at the internal hearing he will suffer prejudice due to the fact that he does not have the financial means to secure his own legal representation.

Labour Court Judge Edwin Tlhotlhalemaje on Monday found that Marhule should have approached the court for urgent relief on or immediately after April 14, when he received the department’s application for legal representation in order to prevent the disciplinary hearing chairperson Chris Mudau from even considering the matter.

Marhule only approached the court on May 17, two weeks after Mudau made his ruling and that he became aware that the department was legally represented or intended to be legally represented on March 23.

He said Mudau had no powers to even consider the department’s application to be legally represented and that by doing so he acted ultra vires (beyond the powers).

”The applicant (Marhule) has not made out a case for the relief that he seeks. Other than the requirements of urgency not having been met, or the fact that it would not be competent for this court to grant the relief that the applicant seeks in the light of the ruling of the chairperson, the exceptional circumstances pleaded, in this case, are not of such a nature it can be said that the failure to intervene at this stage would lead to a grave injustice,” ruled Judge Tlhotlhalemaje on Monday.

In dismissing Marhule’s bid, the judge explained that alternative remedies remain available to him should he at some point deem it necessary to utilise the dispute resolution mechanisms provided for in the Labour Relations Act.

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