In recent days, we have noted a marked increase in the number of cases involving persons who have been found to be in possession of fraudulent visas or permits.  Many of these persons find themselves in this very precarious position by no fault of their own having fallen victim of elaborate fraudulent schemes designed to prey on individuals seeking valid status in the Republic.  The introduction of VFS in 2014, as well as other internal systems at the Department of Home Affairs, have made it easier for officials to detect fraudulent or fraudulently obtained visas and permits and as a result many find themselves facing very serious charges yet believing that their paperwork is in order.  The Immigration Act, not only makes it a criminal offense to be in possession of a fraudulent visa or permit, it goes on to automatically assign the prohibited person status to that person, often without regard to the circumstances that led to the person being in possession of such fraudulent documents.  Whilst such a strict approach is necessary, its current formulation is open to a constitutional challenge on the basis that it violates the person’s right to just administrative action and requires a rethink. We explore section 29(1)(f), its implications and likely constitutional problems that in our view need to be considered. 

Section 29 is one of the exclusionary clauses of the Immigration Act wherein if one falls within its ambit, you are automatically disqualified from entry into the Republic or applying for any status.  If you are in possession of an immigration permit, then that status is withdrawn on the basis that you are a prohibited person. The section provides a list of instances where a person is automatically excluded from the country and would need special permission in the form of a letter from the Director-General stating that the specific person is no longer considered prohibited.  A quick scan of this illustrious list will show that such an approach is warranted as the persons listed there would, on the face of it, pose a risk to the security of the state.  For example, persons with infectious diseases as prescribed, persons convicted of genocide, terrorism, rape, murder, torture, drug trafficking, money laundering, members of organized crime syndicates or organizations that advocate racial hatred or social violence. These persons makeup sections 29(1)(a)- (e) and then we have section 29(1)(f) anyone found in possession of a fraudulent permit, visa, passport, or Identification document. An outlier when compared to the other categories under section 29.

It is telling that prior to 2014, amendments no such exclusion existed under section 29.  In fact, none of the exclusionary grounds included persons found in possession of fraudulent documents. There is no doubt that there was a need to ensure that persons who had acquired their status documents fraudulently needed some form of punishment as was the case with persons who made it a habit to overstay their visas and all they had to do was to pay a fine for the umpteenth time. However unlike an undesirable declaration which requires an official to first assess whether or not to declare a person an undesirable, (although the law is seldom applied in its correct format a story for another day), in the case of a prohibition it is automatic without regard to the circumstances that led to the person finding themselves in possession of a fraudulent visa, therein lies the problem.

Our constitution in section 33, affords everyone the right to administrative action that is lawful, procedurally fair and reasonable. The section also affords everyone whose right in terms of section 33 has been adversely affected the right to written reasons and an opportunity for the review of that admirative action by a court or independent impartial tribunal.  Cora Hoexter, the leading mind in the field of South African Administrative law, expands on this right and states that procedurally fair administrative action gives the recipient of that action the opportunity to participate in the decision-making process and affords them the opportunity to influence those decisions. This is seen as giving effect to the fundamental principle of our law audi alteram partem or let the other side be heard as well.  However, the current formulation of section 29(1)(f) does not afford anyone the right to be heard or to participate in the decision-making process but rather to simply accept the finding and ask to be removed from the prohibited persons list on a good cause.  This in my view is patently unfair because it allows a person to be excluded based on an allegation of fraud that he or she did not knowingly participate in and often amounts to punishing the victim of a crime instead of protecting them.

In most cases these persons would be parents, children, professionals, business owners who by no fault of their own fell victim of a scheme of fraud and ought to be given an opportunity to be heard before their lives are uprooted.  Whilst the Act affords them to make an application on good cause to have their status uplifted often the waiting time can be up to a year or more and in that time their relationships and livelihoods would have been lost.  The situation is exacerbated by the fact that in most cases these persons would have relied in good faith on the assistance of a purported immigration agent or lawyer and in many cases officials from the department itself.

In the landmark case of Littlewood v the Minister of Home Affairs SCA 260/04, this very issue was addressed by the Supreme Court of Appeal. Littlewood and his family had found themselves in a possession of fraudulent permanent residence permits by no fault of their own, having relied on the assistance of a company appointment agent. Upon this discovery, Littlewood made an application for permanent residence exemption on special circumstances. The Minister rejected this application arguing that it was not the fault of the Department that Littlewood and his found themselves in such a precarious position. In setting aside, the decision of the Minister the court stated that the very circumstances that led Littlewood to be in a possession of a fraudulent permit need to be considered as possible special circumstances that ought to be considered before coming to a decision. The court found that in failing to take these circumstances into account, the Minister had failed to exercise proper discretion and had violated Littlewoods right to just administrative action.  

Following the SCAs reasoning, by depriving a person found in possession of a fraudulent visa the right to make representations before a final decision is made on their status as a prohibited person, the Director-General will not have all the necessary information to allow him to exercise proper discretion.  The Act by not affording a person an opportunity to have the decision reviewed or to make representations as to why they should not be declared a prohibited person fails to meet the standard of procedurally fair administrative action and on this basis can be subject to constitutional review. 

In my view, the appropriate procedure, in this case, should be the one adopted in section 28 of the Immigration Act dealing with the withdrawal of a person’s permanent residence permit. The Director-General issues a notice of intention to withdraw the permit and requests representations from the foreigner as to why such a move should not be taken.  In this context, the department would first solicit information from the person that he or she deems relevant and after considering those submissions the Director-General may then decide.    The argument arises that if the visa is fraudulent then there is no status to withdraw, this is correct however the director-general has the power to authorize the person to apply for a status on good cause in terms of section 32 of the Immigration Act. This procedure currently seems to be the standard practice of the department in these circumstances however it does not account for persons who find themselves prohibited whilst exiting or entering the country and have to wait for their applications to be considered whilst they are outside of the republic.

In recent times many of our Immigration laws have been subjected to constitutional scrutiny and in most of not all these cases have been found falling well short of our constitutional standards and norms.  I have no doubt that if challenged the current section 29(1)(f) will also fail the constitutional scrutiny.  However, until such a challenge is mounted anyone found to be a prohibited person will have to apply for upliftment of such status as contemplated in section 29(2).

www.samigration.com

Foreigners may purchase and own immovable property in South Africa without any restrictions, as foreigners are generally subject to the same laws as South African nationals. The only foreigners disqualified from owning property in South Africa are foreigners that are here illegally.

It is thus possible for a foreign individual to own property individually, jointly or in undivided shares. Foreign companies and trusts are also permitted to own property in South Africa, provided that they are registered in South Africa as an external company.

What is required as a foreigner purchasing property?

While purchasing property in South Africa as a foreigner has its advantages, it is important to bear the following considerations in mind, namely:

Visa requirements

Non-residents would need to comply with the Immigration Act 13 of 2002 if they intend to stay in their South African property for extended periods. The permit for which they apply would largely depend on their country of origin, the purpose of their visit and how long they intend on staying in South Africa.

Although there is a lengthy list of countries who do not need visas for visits of less than 90 days, foreign nationals from visa-restricted countries will have to apply for the relevant visa.

Capacity to enter into an agreement

Should the foreign purchaser not be in South Africa to sign transfer or bond documents, such purchaser will need to have the documents signed either at a Notary Public, who (depending on the country of signature) may have to have the documents Apostilled; alternatively the purchaser could also sign the necessary documents at a South African embassy.

Additional costs

Foreign nationals are, as is the case with South African residents, liable for any transfer duty, should the value of the property exceed R1,000,000 (one million Rand). Properties purchased from developers, on the other hand, will generally attract Value Added Tax (VAT) as opposed to transfer duty and which VAT sum will be included in the purchase price. They will also be liable for the ordinary costs of transfer which are payable by purchasers when purchasing property (kindly consult our calculator for an estimate on the property transfer costs).

It is very important to note that foreigners who purchase property in South Africa must register as South African tax payers for their Capital Gains Tax obligation. Should the foreigner wish to sell his property, a withholding tax of a certain percentage on the proceeds of the sale of a property of more than R2,000,000 (two million Rand) becomes payable until clearance is received from the South African Revenue Service from any amount to be paid to the seller or the seller’s agent. This can be avoided if the South African Revenue Service is approached prior to the transfer to obtain a tax directive and in which case only the directed amount (if any) will be withheld.

Financing

South African exchange control regulations determine the extent to which foreign buyers can borrow money locally to fund the purchase. Foreign buyers not working in South Africa will typically not be granted more than half of the purchase price to fund the purchase. The balance must then be paid in cash and this may be cash generated in South Africa, or off-shore funding.

Foreigners who have temporary work permits may be granted more than half of the purchase price, but the loan amount will still depend on the bank’s criteria. A condition of the loan would be that the buyer must reduce the bond to less than half of the registered amount before they leave South Africa to go back abroad. Some institutions would possibly require a work permit of at least four (4) years before they would consider a bond for more than half of the purchase price.

www.samigration.com

The Covid-19 pandemic and provisions of the Disaster Management Act have reduced already-slow Home Affairs processes to a crawl – impacting thousands of people and creating a backlog that could take years to clear.

The impact of the Covid-19 pandemic is set to further delay and derail Home Affairs processes, with potentially tens of thousands of people negatively impacted as a result.

While the Department of Home Affairs was mandated to limit services at the onset of the State of Disaster in March last year; the Department has been slow and inconsistent in resuming services.

Currently, only visa related services are being rendered, with no permanent residence or citizenship-related services being permitted.

After initially issuing badly drafted and confusing directives, the Department confirmed in March this year that it had extended the validity of short term visas to the end of June this year, 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 massive 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 before.

Slow and inconsistent processes challenge foreigners

Despite officially not currently processing permanent resident and citizenship-related applications; Home Affairs is in fact processing some permanent residence applications, but with startling inconsistency, and is rejecting more than it approves.

Applicants are not able however to appeal these negative outcomes since the Department is not meant to be rendering these services, which is also going to create a massive backlog once they resume doing so.

It should be noted that the Preamble to the Act provides, amongst 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 many visa and permit applications rejected for reasons that should not apply. In the case of temporary visa applications, where it was once very rare for an application to be pending for more than three months, we now have a backlog of approximately five months, while the Department states it is currently not dealing with citizenship services, determination of status applications or anything related to them – even enquiries.

This raises questions about how a backlog can be possible 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 be ongoing to remove permanent residency as a status category and eliminate the possibility of becoming a citizen by naturalisation, as regulated in the South African Citizenship Amendment Act.

There are signs based on the Minister’s White Paper in 2017, and a revised immigration bill currently being drafted, that categories of visas and permits currently in existence may 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 a retired persons visa.

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 accelerating the labour market and helping grow the economy.

This situation will result in a flood of applications and appeals when the Department resumes full service again.

Hope for South Africans

However, while challenges remain for foreign-born people seeking to live and work in South Africa; there is a glimmer of hope for South African-born people hoping to work abroad and remain South African citizens.

Currently, South Africans are frequently stripped of their South African citizenship without warning if they apply for citizenship of another country.

A recent court case launched by the Democratic Alliance challenges this, arguing that section 6(1)(a) of the Citizenship Act 88 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 a South African passport and retain citizenship.

The Minister of the Department of Home Affairs countered that South Africans could retain their South African citizenship – and thus have dual citizenship – if they complied with the steps laid out in the Act.

The Act states that individuals will automatically lose their citizenship unless they apply for a letter of retention to keep their South African citizenship, and specifically excludes dual citizenship by minors and/or by marriage.

As South Africans confronted by job losses and a difficult economic environment increasingly 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 a hope that while judgement in this case was reserved, if the Democratic Alliance should win, they could be permitted to reclaim their citizenship in future.

www.samigration.com

With the COVID-19 pandemic easing, Baker Donelson's Business Immigration Team is seeing an increase in demand for U.S. employer-based employment visas. However, even as we have been obtaining employment visa petition approvals at a record pace for L-1, E-2, H-1B and O-1 employees, at the same time, these and other international business visitors and employees from around the world are facing challenging COVID-19 travel restrictions. Fortunately, it may be possible for an individual otherwise covered by one of the geographic COVID-19 travel restriction proclamations to receive a National Interest Exception (NIE) to allow travel and entry to the U.S.

National Interest Exceptions for Certain Nonimmigrants and Students

On April 26, 2021, the Department of State updated its NIE page to expand certain eligibilities to China, Iran, Brazil, South Africa, Schengen Area, United Kingdom, and Ireland. Most recently, on April 30, 2021, the Department of State included India in its NIE policies.

Key eligibilities for travelers who were present in the above-listed countries include:

1. Travelers who are seeking to provide vital support for critical infrastructure; journalists; students and certain academics covered by exchange visitor programs.

Travelers in these categories who have a valid visa in the appropriate class or who have a valid Electronic System for Travel Authorization (ESTA) for travel under the Visa Waiver Program and seek to travel for purposes consistent with ESTA authorization, should contact the nearest U.S. embassy or consulate before traveling, if they believe they may qualify for an NIE. There are 16 critical infrastructure sectors whose assets, systems, and networks, whether physical or virtual, are considered vital to the U.S. By letter in support of the NIE application, the U.S. employer is required to describe how its business qualifies under one of the named critical infrastructure sectors, how the individual traveler's activities in the U.S. directly support the business operations, and how his or her presence in the country is essential to the ongoing success of the U.S. employer's business. It is a good idea to include a copy of organization chart that shows the applicant's position and the manager to whom he or she reports, as well as other employees he or she may supervise, if any. Any member of our Business Immigration Team can assist with questions regarding the application process.

If an NIE is approved, it is valid only for 30 days to be used for a single entry into the U.S. on either a valid visa or ESTA authorization, as appropriate.

2. Qualified travelers seeking to enter the U.S. for purposes related to humanitarian travel, public health response, and national security.

3. F-1 and M-1 Students – The updated NIE policy states, "Students and academics subject to these proclamations due to their presence in China, Iran, Brazil, or South Africa, may qualify for an NIE only if their academic program begins August 1, 2021 or later."

The Department of State (DOS) notes that the pandemic continues to limit the number of visas the U. S. embassies and consulates abroad are able to process. Until the DOS is positioned to process more visa applications, for certain reasons of business necessity, our Baker Donelson team can assist with requests for expedited visa appointments in connection with the NIE application as well. See the April 27, 2021 Department of State Media Note announcing the policy, titled Uniform Global National Interest Exceptions to COVID-19 Travel Restriction.

www.samigration.com

The four-year Zimbabwe Exemption Permit lapses in December and the South African government has not yet indicated if it will renew it.

Thousands of holders of the Zimbabwe Exemption Permit (ZEP) are living in uncertainty because the South African government has not yet indicated whether it will renew their permits. About 180 000 Zimbabweans hold ZEPs. The four-year permit expires on 31 December 2021.

Some Zimbabweans said their banks had already warned them to renew their permits or face closure of their accounts in December.

The permits were first issued in 2010 under the Dispensation of Zimbabweans Project (ZDP). The programme was renewed in 2014 as the Zimbabwe Special Permit (ZSP), before the ZEP was introduced in 2017.

Zimbabwe nationals desperate to resolve ZEP renewals

A Zimbabwean, who we will only identify as Matthew, said he can’t make plans for the future. He is a supervisor at a restaurant and lives in New Brighton with his wife and two children. He has been living in South Africa for 20 years.

“I started with an asylum seeker permit before I got the ZDP, ZSP and the ZEP. I have lived in this country for the better part of my adult life. It will be heartbreaking if the government refuses to renew the permits.

“I have two bank accounts and insurance as well as burial policies. These will all go down the drain if the government refuses to extend the permits.”

He said he is established in the community and his children speak fluent Xhosa. “They identify themselves with local culture because they were born here,” he said.

Another ZEP holder said South Africa should grant citizenship to those who have lived legally in the country for five or more years.

“Some people have invested a lot in the country. Others have bought immovable property, which they will be forced to leave,” he said.

Home Affairs mum on ongoing delays

Chairperson of the Zimbabwe Migrants Support Network Chris Mapingure said, “We appeal to the Department of Home Affairs to issue a statement regarding the renewal of the ZEP.”

Chairperson of the Zimbabwe Exiles Forum Advocate Gabriel Shumba said he is receiving an unprecedented number of enquiries from concerned permit holders.

“It is an issue that seriously affects thousands of Zimbabweans, especially with some banks threatening to close accounts.”