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- Asylum seekers without valid visas face arrest and deportation, even if they have tried to apply for asylum. - Scalabrini argues this is unconstitutional and violates the principle of non-refoulement. - Home Affairs acknowledged that mistakes have been made but argues the law is sound. Amendments made to the Refugees Act in 2023 are unconstitutional because they allow asylum seekers to be deported before they are able to access the asylum system. This puts them in danger and at risk of persecution. This was the main argument made by the Scalabrini Centre of Cape Town, an immigration rights organisation, in the Western Cape High Court before a full bench on Thursday. The amendments, which Scalabrini wants the court to declare unconstitutional, allow for asylum seekers who have entered the country unlawfully and do not have a valid visa, to be denied full access to the asylum system after an initial “filtering” interview with an immigration officer. During this interview, meant to filter out non-credible asylum applications, the Immigration Officer must consider whether the asylum seeker is able to explain why they are in the country unlawfully. The applicant must show “good cause” for breaking the country’s immigration law. Scalabrini, represented by Lawyers for Human Rights, cited international and local case law to argue that no matter how late the person is in applying, or whether or not they have entered the country lawfully, they should be allowed to apply for asylum and should not be deported until their asylum applications are rejected on their full merits. Amendments deny access to the system upon the sole discretion of an Immigration Officer, who is not trained or experienced in assessing the merits of an asylum application, and as a consequence South Africa risks sending people back to danger in their countries of origin, Scalabrini argued. This violates international law including the principle of non-refoulement. Amnesty International, the Global Strategic Litigation Council for Refugee Rights, the International Detention Coalition and the Helen Suzman Foundation joined the application as amicus curiae (friends of the court). The organisations highlighted the multiple international treaties and instruments South Africa needs to honour. The Helen Suzman Foundation pointed out that the amended act puts children at risk, in that their status is tied to their parents. The Department of Home Affairs argued that the amendments provided a necessary filtering process in the asylum system and in fact created a “safety valve” to protect the principle of non-refoulement. “I would be gobsmacked if the Immigration Officer does not take into account the full basket of factors,” said Advocate Norman Arendse, appearing for the government. Judge Lister Nuku asked Arendse if someone who does not pass the first interview can still apply. Arendse said they could. His reply drew audible murmurs of disagreement from the full gallery at the back of the court, packed with asylum seekers and refugees. Scalabrini cited several cases of Ethiopian and Palestinian asylum seekers who have been detained for being in the country unlawfully after the first interview, denied access to the asylum system, and now face deportation. Deportation of asylum seekers cannot be used as a penalty or punishment for people who are in the country unlawfully, Scalabrini says. Arendse admitted that there are cases where Immigration Officers have made the wrong call. But advocate David Borgström, also appearing for the government, said that this does not mean the regulations are unconstitutional. “Attack the implementation, not the regulations,” Borgström said. The matter heard on Thursday was part B of Scalabrini’s application. Part A was heard in August 2024. That application sought an urgent interdict against the arrest and deportation of asylum seekers, including people who indicate they want to apply even if they have not yet done so. In September, the court granted an interdict against deportation but not against arrests. Because of the interdict, the Department of Home Affairs effectively shut off all access to the asylum system for new applicants. But arrests of people who want to seek asylum but who do not have valid visas have continued. Because the government is interdicted from deporting asylum seekers, thousands of people are in prison. Judge Judith Cloete said she was concerned that making an order setting aside the amendments would have unintended consequences for the government. Cloete asked Arendse and his team to advise what relief would be appropriate and feasible, should the court rule in Scalabrini’s favour. “You may have a better understanding of the administration at Home Affairs,” Cloete said. Judgment was reserved. |
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Australian Border Force (ABF) officers from the Department of Home Affairs exposed multiple cases of suspected exploitation of Australia's visa and migration system during targeted inspections recently across Hobart and Devonport. ABF officers profiled numerous Tasmanian companies, uncovering intelligence on 'phantom' nominations and fraudulent permanent residency applications under the Employer Nomination Scheme. This intelligence led to targeted early morning searches over several days, allowing officers to conduct staff interviews, verify bona fides and gather critical evidence. The operation exposed five non-existent nominated businesses, fraudulent application documents – including falsified lease agreements – and the misuse of two legitimate business credentials for bogus visa applications. ABF Commander Field Operations and Sponsor Monitoring, Ben Biddington, said this latest operation was a success in the ongoing efforts to protect Australia's immigration system. "Our officers are committed to identifying and stopping fraudulent activities. Those who attempt to exploit Australia's visa system, through fraudulent applications and activities, will be caught," he said. Resources are available to help migrant workers understand their rights and how to seek legitimate professional assistance when needed. Migrants applying for visas and who are paying for immigration assistance are urged to use legal practitioners or registered migration agents, who must abide by a code of industry practice and not engage in illegal behaviour. For more information and to check the Register of registered migration agents, visit the Office of the Migration Agents Registration Authority (OMARA) website. Commander Biddington said ABF officers would continue targeted operations throughout Australia, to protect the integrity of Australia's visa system. |
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For nearly two decades, a German couple have called South Africa their second home. Since 2005, pensioners Petra and Alfred Grueniger say they have invested millions of rand into the country, purchasing property and establishing a life here. The couple first visited South Africa in November 2005 and quickly fell in love with the country. Just two months later, they purchased a flat in Hibberdene on the South Coast. Over the years, they deepened their ties by investing in additional properties, including a house in Crestholme, which they built in 2010. For years, the couple split their time between Germany and South Africa, spending five to six months in each country. Despite having a home in Germany, they always considered South Africa their second home and therefore submitted applications to Home Affairs for permanent residence permits. "We have lovely friends here and would love to stay as long as we can,” Petra says. "My husband is 85 now, and I am 80. But we are both fit and hope to make it another couple of years.” But now, after eight years of waiting for permanent residence permits, they find themselves packing their bags once again, forced to leave before March 9 to avoid overstaying their tourist visas. Their ordeal began in March 2017 when they submitted their applications to Home Affairs. At the time, they were assured the process would take eight to ten months. Instead, years passed with no resolution. "Every three months, we must leave the country for one to two weeks just to avoid overstaying our visa, always hoping that our applications will be approved. We spent millions in South Africa and are definitely not a burden to the country!” said Petra. She said they carried out numerous follow-ups via emails and phone calls and they received only repeated assurances that their case had been escalated. Each time, they were told to check back in a few weeks. This month they finally received some good news: Alfred’s application had been finalised, however Petra’s was still pending. The couple, who had always applied as a retired pair, said they could not understand why one was approved while the other remained in limbo. "It’s good news that my husband’s application is finalised, but mine is still pending. If it isn’t approved soon, we will have to leave again,” said Petra. "We could have applied for a 90-day extension, but there’s no guarantee we would get it before our current visa expired.… Friends overstayed their visas by mistake for just two days and were blocked from entry for an entire year. We cannot take that risk.” The couple says this has taken an emotional toll on them. "After I had written to the ministerial office in January and received no response, we were mentally finished with South Africa,” Petra said. Adding to their frustration is the fact that when they check their application status, it is unchanged with no indication that Alfred was approved. "Their polite letter from last Monday hasn’t changed anything, it’s terrible!” said Petra.Home Affairs had not responded by the time of publication to a request for comment sent last week. The couple’s experience has led them to rethink their future. "We can no longer recommend that any European pensioner spend their retirement and their money in South Africa. It is heartbreaking," Petra said. The Home Affairs department had not responded by the time of publication to a request for comment sent last week. |
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This data was detailed in a recent Parliamentary Q&A, where the DEL was asked for a breakdown of all arrests of employers who were charged and convicted of violating the law by employing illegal immigrants without valid work permits in 2024. In response, the DEL explained that it conducts blitz inspections in collaboration with the Department of Home Affairs (DHA) and the South African Police Service (SAPS). "During such operations, DEL’s mandate is to enforce the implementation of labour laws to ensure the protection of workers in those particular companies. "At the same time, DHA scrutinises the validity of visas and work permits through the application of immigration laws," the DEL said. "In the event of noncompliance with immigration laws, DHA arrests the noncompliant employers and employees," it added. The statistics below indicate the arrests made by DHA during the joint operation, which spread across the different provinces. The DEL noted that each of the 68 employers arrested paid an admission of guilt fine of R10,000. Therefore, the total amount paid in fines was R680,000. Additionally, the DEL highlighted that 322 employees were arrested and taken for further processing as per immigration requirements. 34 employers and 34 employees were arrested in the Eastern Cape, and the fines totalling R340,000 were the steepest in the country. However, while the Eastern Cape had the most employers arrested, Limpopo recorded 163 employee arrests with only eight employer arrests. The Free State only recorded two employee arrests, while the Northern Cape and North West were the only provinces with no arrests. Province Employers arrested Employees arrested Total fines paid Limpopo 8 163 R80,000 Eastern Cape 34 34 R340,000 Mpumalanga 15 30 R150,000 Western Cape 2 43 R20,000 Gauteng 4 34 R40,000 Kwa-Zulu Natal 5 16 R50,000 Free State 0 2 R0 Northern Cape 0 0 R0 North West 0 0 R0 Total 68 322 R680,000 Government crackdown This data comes after the DEL committed to ramping up its inspection raids at the end of last year as part of its zero-tolerance stance on hiring illegal foreign workers in South Africa. Employment and Labour Minister Nomakhosazana Meth announced that the department had conducted nearly 2,900 inspections across all provinces in under a week in October 2024. These operations targeted various noncompliance issues, including wage violations, immigration breaches, and safety standards. In a recent compliance inspection drive, the DEL collected over R10 million in fines from noncompliant employers. The department’s efforts are set to intensify, with plans to expand the labour inspectorate from 2,000 to nearly 20,000 inspectors over the Medium-Term Expenditure Framework (MTEF) period. This drive by the DEL aims to increase the capacity for thorough audits and inspections across the country. According to Minister Meth, the goal is not only to enforce compliance but also to promote social justice and safeguard workers’ rights. Meth emphasised that fair labour practices boost employee morale and productivity, ultimately contributing to a stronger economy. Legal experts have urged South African employers to take proactive measures to ensure compliance, particularly concerning the employment of foreign nationals. Cliffe Dekker Hofmeyr (CDH) legal specialists advised businesses to review the employment status of their foreign workers to avoid potential breaches of immigration, employment, and criminal laws. Other legal firms have also expressed a word of caution to employers in South Africa following the developments. South African law firm Dentons urged businesses to adhere to the comprehensive immigration and employment laws that regulate the engagement of non-citizens in the workforce when employing foreign nationals. "Understanding and complying with this legal framework is essential to ensure companies don’t violate prescribed laws and avoid the consequences of noncompliance. "These laws govern work permits, visa requirements, and labour rights, ensuring that foreign workers are engaged lawfully and ethically," the firm said. |
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Spouses and children of asylum seekers are struggling to get recognition from Home Affairs. • A 2019 landmark ruling allows the families of refugees to get documents in South Africa. • But legal experts say Home Affairs has created additional barriers like DNA testing requirements, and refuses to recognise customary marriages from other African countries. • A Congolese refugee has waited 23 years to be joined to her husband’s refugee status, despite submitting their marriage certificate several times. • A Kenyan couple have been unable to get their family documented, leaving their 13-year-old daughter unable to attend school. When rebels invaded his home in South Kivu in the Democratic Republic of Congo in 2002, killing many people, Kabamba Mukinayi fled to South Africa rather than be forced into the army. He applied for asylum at the Cape Town Refugee Reception Office and was granted refugee status within a few months. His wife, Tshilobo Tshiamakanda, followed him and applied for asylum in Musina before joining her husband. When her permit was due to expire, they went to the Cape Town refugee office and applied for her to be joined to her husband’s status. She thought she’d automatically receive the same status as her husband. But 23 years later, she is still in limbo. In June 2019, the Western Cape High Court handed down a landmark ruling granting access for spouses, children and other dependents of asylum seekers and refugees to be able to document themselves in South Africa under "family joining". Family joining means granting refugee status (or a similar secure status) to family members "accompanying a recognised refugee", according to the Refugee Rights Unit at the University of Cape Town’s Law Clinic. The ruling followed an application brought by the Scalabrini Centre on behalf of families of refugees who were facing arrests and detention because of documentation issues. Tshiamakanda has submitted her Congolese marriage certificate several times but to no effect. She has had to endure decades of short-term and inconsistent renewals at the refugee office. She has had numerous interviews, yet her case remains unresolved. Without clarity on her status, she struggles to open a bank account or access other services. She freelances as a child carer. "We are a legally married couple. All I want is for my wife to join my status so that her life can be easier," says Mukinayi. Several couples GroundUp spoke to at the refugee office are in similar situations. Some said their files were lost during the closure of the Cape Town refugee office in 2012. The new office opened in 2023. Those who had applied at the Pretoria and Durban refugee offices tried to continue their applications in Cape Town, but they say the system couldn’t pick up their family joining files. A Kenyan couple, who wished to be anonymous, say they have struggled for years to have their papers joined. The husband belonged to an ethnic minority that faced targeted attacks during post-election violence in 2008. His family’s home in Naivasha, about 90km from Nairobi, was burned down during clashes when the police did not intervene. After receiving threats, he left Kenya and applied for asylum at the Musina Refugee Centre before moving to Cape Town. In 2011, his wife joined him and also applied for asylum and to be documented with her husband. But before her case progressed, Home Affairs closed its Cape Town office in 2012. The Western Cape High Court ruled that the closure was unreasonable and irrational in 2012. Home Affairs was ordered to re-open the office by the High Court in 2016, and again by the Supreme Court of Appeal in 2017. The department then sought leave to appeal from the Constitutional Court, but the application was denied. Since the office reopened, the couple have made countless trips to Home Affairs, submitting applications at the office and online, attending interviews and waiting in long queues, only to be met with rejection, delays and silence. To date, she has no papers and his permit has since expired. Because of the hostility he faced, he is now afraid to go and renew his permit again. "They told me to wait for my family to be recognised, and before I knew it, I had overstayed," he said. "Every time we go to Home Affairs, it’s the same thing: missing documents, system errors, come back next week, next month, next year. But nothing changes," said his wife. The couple was told that their Kenyan marriage is not recognised in South Africa. Their daughter, now 13, has no birth certificate, is currently out of school, and is facing an uncertain future. Attorney James Chapman, head of advocacy and legal advisor at Scalabrini, said the 2017 court order and 2018 ruling were meant to make it easier for dependents of asylum seekers and refugees to be joined, but families are still struggling. "There is nothing that should prevent an individual recognised as an asylum seeker or refugee and has supporting documents from, by appointment at Home Affairs, joining their family. What happens in theory is that you approach the refugee reception office on the appointment date given by Home Affairs, and you bring all documents. If you don’t have supporting documents to prove your relationship, Home Affairs won’t proceed," said Chapman. He said the Scalabrini Centre had handled cases where the files of children who turned 18 were routinely separated from their families’ files, had to file for asylum again, and were then rejected. He said Home Affairs had now confirmed that file separation would only happen upon termination of dependency or upon request, not upon reaching 18. Those separated would still continue to benefit from the claim of the previous file holder. "There is also a problem that … customary marriages are not being recognised. If you got married by customary law, say in DRC, they [Home Affairs] are not accepting those marital relationships. Only civil marriages concluded are accepted." He said in some cases, to join children, Home Affairs demanded DNA, "which is prohibitively costly". "DNA is even asked for in cases where parents have birth certificates from their country confirming the family relationship. Where the child is old enough the child should also be able to confirm the relationship without the need for DNA testing." Chapman said the Scalabrini Centre can be contacted for help. GroundUp has waited for two weeks for comment from Home Affairs. |
