An immigration law expert says that the number of visa applications blocked due to inefficiencies at Home Affairs is likely worse than the department lets on and added it has little intention of addressing the issue because of bureaucratic attitudes towards foreigners.

Home Affairs Minister Aaron Motsoaledi noted in a recent parliamentary Q&A that the backlog in temporary residency visas remained at over 74,309 unchanged from the department’s last report at the end of October 2023 adding that an additional backlog of 43,944 in permanent residency permits also remains.

South Africa has long been facing a significant skills shortage, and businesses have been struggling to attract much-needed skills to the country, with their efforts having been hindered by the failures at Home Affairs.

Companies have reported that visa applications can take up to 48 weeks to be accepted, which poses a threat to expansion plans, investment, and job creation in a country with a 33% unemployment rate.

A point of how bad the backlog is, a report prepared for the presidency noted that between 2014 and 2021, only 25,298 skilled work permit visas were approved.

Speaking to Newzroom Afrika, immigration lawyer Gary Eisenberg said that the backlog crisis is probably much worse and that the numbers provided by the department are somewhat misleading.

“It’s unclear whether the numbers given by the department include application appeals and those under review, and that number is likely far higher than the 74,000,” said Eisenberg.

“Even if some foreigners with the means are able to get a court order to force the minister to make a decision on their applications, many of those orders are being ignored,” he noted.

Eisenberg added that skilled foreign professionals who are needed to fill the gaps on the critical skills list are simply walking away. “They cannot wait a year for a visa or spousal visa, so they are going elsewhere.”

He also noted that the department has little intention to fix the issues, and this is being of bureaucratic attitudes towards foreigners. “If a foreigner doesn’t want to sit and wait, then it’s fine; they must go. That’s the attitude we’re sitting with at Home Affairs,” he said.

Eisenberg also notes that he has little faith that the department will fix it anytime soon or even have the will to address the issues. 

Potential evidence of this is the fact that in a parliamentary Q&A near the end of November, Motsoaledi noted that the time frame to fix the backlog has been pushed back to November 2024 from June 2024.

Eisenberg also added that his partners have been Home Affairs officials, and the issue has been part of all the work he’s done in his professional career. 

“I have seen the department explain to the public repeatedly over the past 25 years that they are in the process of improvement spending millions on turnaround projects in the process and the department has done very little if anything,” he said. 

Despite Eisenberg’s comments, there seems to be some movement by the department to address the visa crisis in South Africa.

Recently, the minister signed planned changes to work permit regulations aimed at fixing a bureaucratic morass that’s frustrating the country’s biggest investors and exacerbating a skills crisis, people familiar with the situation said.

The changes may include a range of measures suggested by a government study, including the creation of a remote worker visa category.

South Africa’s home affairs minister signed planned changes to work permit regulations aimed at fixing a bureaucratic morass that’s frustrating the country’s biggest investors and exacerbating a skills crisis, people familiar with the situation said.

Now that the changes have been signed by Aaron Motsoaledi, they’ll be gazetted in the coming days and released for public comment, the people said, asking not to be identified as the decision hasn’t been made public. The changes may include a range of measures suggested by a government study, including the creation of a remote worker visa category.

Companies operating in South Africa struggle to find skilled workers, a result of a dysfunctional education system and exacerbated by emigration. That, they said, is hindering growth.

Still, between 2014 and 2021, only 25,298 skilled work permit visas were approved, according to a report prepared for the presidency. 

More than half of the applications were rejected on grounds including errors in the complex application process and the inability of the Home Affairs Department to process them.

The department didn’t respond to a request for comment.

Industry bodies, including the Southern African-German Chamber of Commerce and Industry, which represents owners of factories in the country, such as Volkswagen and BMW, have warned the skills shortage may halt their members’ expansion plans and threaten 100,000 jobs.

A chamber representing European Union companies operating in South Africa collated complaints that showed that some companies are considering moving their African headquarters to other countries on the continent because of their frustration.

Eight recommendations in the study, which was released by the presidency in April, include a points-based system, where applicants who meet a minimum education and salary level would be granted work permits. It’s unclear whether all or some of them will be included in the changes.

While processing a work visa in South Africa can take 48 weeks or more, the process in Kenya is a maximum of 12 weeks and just eight weeks in Nigeria, the authors of the report wrote.

Thirty days will be allowed for public comment before the changes can be passed into law.

The centre was the applicant in the case which took aim at sections of the Act, which provided that an asylum seeker was automatically deemed to have abandoned their asylum application if they did not renew their visa within one month of its expiry. 

In the unanimous ruling handed down on Tuesday, the Constitutional Court categorised refugees as an `especially vulnerable group`, adding that `their plight calls for compassion`. 

JOHANNESBURG - The Scalabrini Centre of Cape Town has welcomed a Constitutional Court ruling setting aside sections of the Refugees Act stating that it’s going to make a marked difference in the lives of those fleeing persecution.

The centre was the applicant in the case which took aim at sections of Act, which provided that an asylum seeker was automatically deemed to have abandoned their asylum application if they did not renew their visa within one month of its expiry.

In February, the Western Cape High Court ruled in Scalabrini’s favour, and on Tuesday, so too did the Constitutional Court.

The centre’s head of advocacy and legal advisor James Chapman said: `It’s going to be very, very impactful, very meaningful, because in 2020 when the amendment came out, it meant an asylum seeker who had been struggling with the backlogs and challenges of accessing asylum was routinely cut out of the asylum process, and subjected to arrest, detention, deportation and being returned to a persecutory environment`. 

`So, now they have the solace, they have the protection that they`re not going to face being returned to their country where they wouldn`t be safe, where their life, liberty, fundamental human rights would be at risk,` he added.

LANDMARK JUDGEMENT

In the unanimous ruling handed down on Tuesday, the Constitutional Court categorised refugees as an “especially vulnerable group”, adding that “their plight calls for compassion”.

And it found the sections in question were “directly at odds” with this approach, as well as with the principle of ‘non-refoulement’, which provides that refugees or asylum seekers should not be made to go back to a country where they’re liable to be subjected to persecution.

It also found these sections “fly in the face” of the Refugees Act’s own provisions barring the return of individuals to countries where they’re under threat, as well as that they “infringe the right to dignity, unjustifiably limit the rights of children and are irrational and arbitrary”.

The Department of Home Affairs was ordered to pay costs in the matter.

The Minister of Home Affairs, Dr Aaron Motsoaledi, welcomes the arrest of an Indian and a Bangladeshi national who were found in possession of fraudulent visas during a law enforcement operation in the Western Cape.

The pair was arrested at the Eersterivier Shopping Complex, in Eersterivier, in the Western Cape, on Thursday morning, 07 December 2023, during an operation conducted by Home Affairs Counter Corruption Branch and the Inspectorate. They are detained at the Kleinvlei Police Station and are scheduled to appear in the Kleinvlei Magistrate Court on Monday.

On the same day, in another routine operation at the Cape Town International Airport, the same team of Home Affairs Counter Corruption Branch and Inspectorate intercepted eleven (11) Bangladeshi nationals and three (03) Pakistani nationals. After interviews, five (05) Bangladeshi nationals and three (03) Pakistani nationals were refused entry into South Africa as they were in possession of fraudulent visas. 

“The Counter Corruption Branch is working tirelessly to crack the networks behind the issuance of these fraudulent visas and from time to time conducts targeted law enforcement operations. The commemoration of International Anti-Corruption Day has strengthened our resolve to root out corruption wherever it rears its ugly head”, says Minister Motsoaledi.