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 If you are in possession of an immigration permit, then that status is withdrawn on the basis that you are a prohibited person.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).