Immigration Desk:

The last word from the RSA government was that it is still consulting all relevant stakeholders to come up with an official position. Noting this, what could inform the considerations of the SA government pertaining to this matter?

First and foremost, the COVID-19 pandemic has caused immense damage to economies all over the world, with the RSA Minister of Finance on 28 July 2021 indicating in a statement that the economy may soundly return to pre-Covid levels around 2023. The vaccination drive and the adjusted level regime of restrictions are all aimed at reducing the effects of the pandemic, to set the economy on a path to recovery. Amongst the chief effects of the pandemic, was loss of employment for many people and closure of businesses. It then becomes critical for the SA government to prioritise job creation to alleviate the situation. The Critical Skills Draft List released by the Department of Home Affairs in February 2021, may send an indication of the government’s position in this matter. The list trimmed down some trades and professions regarded before as critical skills where foreign nationals were granted permits to seek employment in South Africa. What this means is that the government is trying to reduce the number of foreign nationals on this permit regime and promote the hiring of South African citizens instead. On the ground, locals have raised sentiments in public discourse and social media that what is important at the moment is for the South African government to promote the employment of South Africans over foreign nationals. Both these developments are very telling. 

Secondly and related to the COVID-19 pandemic issue, social distancing protocols require that people not gather in one place at the same time. Zimbabwe Exemption Permits have mainly been applied for physically at designated centres. In order to apply in time and not risk being declared illegal and/or undesirable, most people will likely rush to apply early in the event that the SA government announces that applications are open. This will go against efforts to curb the pandemic, especially as South Africa is anticipating a fourth wave of new Covid-19 infections by December 2021. 

Thirdly, South Africa is in preparations for Local Government Elections in few months, necessitating government departments to align their cooperation and efforts to sustain a credible election. It is a matter of utmost government importance and priority, together with containing the pandemic, at the moment. Critical as it may be, the issue of ZEPs may suffer subservient status nonetheless. 

In conclusion, it remains to be seen what the South African government will come up with after its engagements with stakeholders regarding the issue of Zimbabwe Exemption Permits. It will take a bit of patience on the part of would-be beneficiaries, although it is uncertain what the SA government will decide. 

It is likely time for Zimbabweans who may be affected by a negative decision to consider and prepare moving to mainstream Visas/Permits whilst there is still time. At the core of our specialist services is assisting foreign nationals from all walks of life to apply, facilitate speedy resolution at the DHA, and appeal rejected applications of Visas and Permits in different categories. We advise therefore, to forestall disappointments and panic in the event that the ZEPs are not considered for a new cycle, people may approach us so that we can start the process of migrating to other mainstream Visas and Permits that go beyond the December 2021 deadline. 

We stand ready to assist in a wide array of legal immigration matters so that you can explore and pursue your opportunities across borders legally. Our approach is professional, comprehensive and counters the hurdles in immigration. Contact us for an appointment and consultation.

 

 

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The information contained in this site is provided for informational purposes only, and should not be construed as legally binding advice on any subject matter. One should not act or refrain from acting on the basis of any content included in this site without seeking legal or other professional advice. The contents of this site contain general information and may not reflect current legal developments or address one’s peculiar situation. We disclaim all liability for actions one may take or fail to take based on any content on this site.

1. owing to a well-founded fear of being persecuted by reason of his or her race, tribe, religion, nationality, political opinion or membership of a particular social group, is outside the country of his or her nationality and is unable or unwilling to avail himself or herself of the protection of that country, or, not having a nationality and being outside the country of his or her former habitual residence is unable or, owing to such fear, unwilling to return to it; or
2. owing to external aggression, occupation, foreign domination or events seriously disturbing or disrupting public order in either a part or the whole of his or her country of origin or nationality, is compelled to leave his or her place of habitual residence in order to seek refuge elsewhere; or
3. is a dependant of a person contemplated in paragraph (a) or (b).

 

Looking at the above the underlying factor is that there should be imminent danger or threat to one’s livelihood and survival, and therefore it is expected that in the event that one wishes to apply for asylum in the Republic, such person must establish and communicate such intention as soon as possible upon presenting themselves at a port of entry.

What then becomes of a situation when the person intending to apply for asylum takes their time and only indicates their desire to apply much later, let alone after being apprehended? 

These were the issues in the case of Ruta v Minister of Home Affairs (2018) ZACC 52. 

Mr Ruta who is a Rwandan national, entered South Africa illegally through Zimbabwe in December 2014. In March 2016 he was arrested in Pretoria for traffic violations, convicted and sentenced to imprisonment. While in prison the Department of Home Affairs (DHA) launched processes to deport him, but he indicated that he wants to apply for asylum as he faces death in Rwanda. The DHA denied him that opportunity. Mr Ruta then made an application to the High Court to stop the deportation. The DHA opposed the application saying he is a convict (traffic conviction) and that it is too late for him to apply for asylum. The High Court made its finding in Mr Ruta’s favour.

The DHA appealed to the Supreme Court of Appeal, which upheld that Mr Ruta failed to apply for asylum as soon as possible as required by the Refugees Act and the Immigration Act, he is a convicted criminal, and he entered South Africa illegally which means he must be dealt with by the Immigration Act and not the Refugees Act. The minority judgment however held that only crimes committed outside SA applied and any person who has expressed intention to apply for asylum must not be precluded from doing so. The Supreme Court of Appeal consequently overturned the ruling of the High Court. 

Mr Ruta then appealed to the Constitutional Court. The Constitutional Court was asked to decide on whether;

1. An asylum seeker is allowed to apply for asylum at any time (as opposed to as soon as possible). 
2. Section 4 (1) (b) of the Refugees Act applied to criminal convictions within South Africa.

 

The Constitutional Court in a unanimous judgment upheld that the Refugees Act itself is clear that delay does not disqualify an application for asylum. Further, the exclusion of criminal convictions as per section 4(1)(b) of the Refugees Act, does not apply to offences which were committed in South Africa. The appeal of Mr Ruta therefore succeeded. 

Immigration Law Associates is of the view that this judgment is correct. Section 4 (1)(b) is clear that the intention of the legislature was to effect that in the event that an asylum seeker indicates an intention to apply for asylum in South Africa, considerations must be looked into about such person’s criminal status from the country he is coming from, not his destination country as it will be anticipated that he has not yet fully settled in. The words “if committed in the republic” must be read to mean “had the crime been committed in the republic.” The Supreme Court therefore erred in capturing the intention of the legislative provision. 

Our advise however, is that persons wishing to seek asylum is South Africa, must enter the country legally at ports of entry and declare their intention as is required, as soon as possible, and refrain from criminal activity as these will only hamper prospects of securing other status in future e.g permanent residence. Approaching the Courts to enforce rights against deportation is costly and time consuming. 

We stand ready to assist in a wide array of legal immigration matters so that you can explore and pursue your opportunities across borders legally. Our approach is professional, comprehensive and counters the hurdles in immigration. Contact us for an appointment and consultation.

 

 

 

 

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The information contained in this site is provided for informational purposes only, and should not be construed as legally binding advice on any subject matter. One should not act or refrain from acting on the basis of any content included in this site without seeking legal or other professional advice. The contents of this site contain general information and may not reflect current legal developments or address one’s peculiar situation. We disclaim all liability for actions one may take or fail to take based on any content on this site.

1. First consultation with Immigration Law Associates where we listen to what you require. We then advise you on the options you have, requirements needed for each option and answer any questions you might have. 

 

1. We guide you on gathering ALL the required documentation for your chosen option. 

 

1. VFS Global Process (we assist in this process);

 

• Completion of the Online Application Form on VFS Global website.
• Payment of the applicable fee, to schedule an appointment at VFS.
• Download the completed application form and checklist.
• Appointment scheduled.

 

1. On appointment date, applicant must go to VFS Global. Be sure to arrive early and collect a token then wait until the token is called. Applicant must bring appointment letter, passport/travel document and all the required supporting documents depending on the Visa/Permit type. Upon being called the VFS Global attendant will check if the application is in order and if payment is received. If so, they will issue a receipt.

 

1. Biometric information will then be collected i.e fingerprints (finger scan), digital photograph etc. 

 

1. VFS process done, applicant may leave and await decision of the application.

 

1. Application is sent to Department of Home Affairs by VFS Global.

 

1. Immigration Law Associates intervenes and liaises with the Department of Home Affairs to facilitate the speedy determination of the application and deal with any other incidental matters pertaining to the application. 

 

1. Department of Home Affairs will then make a decision on the application and convey it for collection.

 

1. Applicant then collects the decision.

 

1. If application is denied, Immigration Law Associates will then advise on possible options including assisting the applicant to launch appeal procedures if needs be under the circumstances. 

The procedures mentioned above are strict and conducted in an inflexible manner. It therefore requires adequate preparation so as not to inconvenience oneself. As Immigration Law Associates all our staff are dedicated to assisting our clients through the process so that it can be peaceful and rewarding. We stand ready to assist in a wide array of legal immigration matters so that you can explore and pursue your opportunities across borders legally. Our approach is professional, comprehensive and counters the hurdles in immigration. Contact us for an appointment and consultation.

 

 

 

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The information contained in this site is provided for informational purposes only, and should not be construed as legally binding advice on any subject matter. One should not act or refrain from acting on the basis of any content included in this site without seeking legal or other professional advice. The contents of this site contain general information and may not reflect current legal developments or address one’s peculiar situation. We disclaim all liability for actions one may take or fail to take based on any content on this site.

The above question was settled by the Courts in a long protracted battle in the case of Minister of Home Affairs vs Miriam Ali and others (1289/17) 2018 ZASCA 169. In this matter, the Respondents had all been born in South Africa to parents with foreign citizenship. However they had attained majority age and needed to be recognized as citizens and so they went to apply but were turned away by the Department owing to two major stumbling blocks. Firstly that the Citizenship Amendment Act of 2010 had no gazetted regulations to provide for forms upon which applications can be made. This was an administrative shortcoming by the department itself. Secondly, the amendment came into effect in January 2013 and the Department argued that it could not apply retrospectively; it only applied to children born after the amendment came into effect in January 2013. The Department argued that even those who attained majority age after January 2013 were not eligible.

The Western Cape High Court ruled that the applicants had been treated unfairly and directed that the Department issue them with citizenship upon applications by way of affidavits since the regulations had not been formulated as yet. The Department appealed to the Supreme Court of Appeal which maintained the decision of the High Court. The Department did not comply with the order and instead decided to appeal to the Constitutional Court which refused to hear the matter largely because time frames had not been adhered to and justified. Further, the Constitutional Court ordered that the Department declare that Section 4(3) of the Amendment Act of 2010 which came into effect in January 2013 is applicable to children born before or after 2013 who met the requirements.

This case put to rest the long court battle and the position is now clear. The Department has since completed the regulations and will invite comments before gazetting.