Unravelling South African Immigration Law

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DSC_7268Introduction

There have been a number of changes to South Africa’s immigration law over the past two years, triggered by amendments to the Immigration Act, No. 13 of 2002 (Immigration Act) and new immigration regulations.   Although it has been two years since the law changed, some challenges continue to plague the South African immigration process.

Changes to immigration law

On 26 May 2014, the Immigration Amendment Act, No. 3 of 2007, the Immigration Amendment Act No. 13 of 2011 and the Immigration Regulations, 2014 (Immigration Regulations) that replaced the 2005 immigration regulations, came into effect and effectively overhauled South African immigration law.  The result was changes to visa types, visa processing requirements and travel requirements; new application forms and application fees; and stricter penalties for non-compliance. According to the Department of Home Affairs, the changes “were critical to beef-up national security and ensure economic interests [are] met and international obligations fulfilled, while [the department] review[s its] entire approach to migration.” It remains to be seen whether the changes to South Africa’s immigration law have even began to give effect to these objectives.

Challenges to immigration changes                                    

Critics have highlighted some concerns with the changes to South Africa’s immigration law, including delays in application processing and the Department of Home Affairs’ lack of consistency in applying the law.  This has often resulted in challenges to the law or the Department of Home Affairs re-evaluating its position, such as in the following instances.

In June 2014, Lawyers for Human Rights (LHR) filed an application with the North Gauteng High Court in which it challenged the constitutionality of section 34 of the Immigration Act, in as far as it does not afford detainees the automatic right to appear in court to have the lawfulness and extension of their detention confirmed.  The LHR argued that this is inconsistent with section 35 of the Constitution, which entitles anyone who is arrested for committing an offence to be brought before a court within 48 of the arrest.  On 3 February 2016, the North Gauteng High Court declared section 34 of the Immigration Act unconstitutional in so far as it relates to a detainee’s right to appear before a court following arrest.  The finding by the North Gauteng High Court must be confirmed by the Constitutional Court before it can have any effect.

In November 2014, the Stewart family filed an application with the Western Cape High Court challenging the Department of Home Affairs’ decision to reject Lea Stewart’s application for a section 11(6) visitor’s visa, which is issued to the foreign spouse of a citizen or permanent resident (Spousal Visa).  The Department of Home Affairs rejected Lea Stewart’s application on the grounds that she had applied for a change of status from a section 11(1) visitor’s visa to a Spousal visa from within South Africa, instead of her home country of Zimbabwe.  The Stewarts also challenged the constitutionality of section 10(6)(b) of the Immigration Act, to the extent that it requires an applicant for a change of status to their visitor’s visa to make the application from outside South Africa.  The Stewarts argued that section 10(6)(b) requires an applicant to be separated from his or her family thereby infringing on the applicant’s right to family life, which was recognized by the Constitutional court in the Dawood case.  On 29 January 2016, the Western Cape High Court ordered the Department of Home Affairs to issue Lea Stewart with a visitor’s visa and allow her to apply for a permanent residence permit within 3 months.  Practically, this means that the spouse of a South African citizen or permanent resident, who entered South Africa on a section 11(1) visitor’s visa can now apply for a Spousal Visa from within South Africa.  However, it remains to be seen whether the Department of Home Affairs will allow such applications from within South Africa.

Regulation 6(12)(a) of the Immigration Regulations requires parents traveling through South African ports with a child to present immigration officials with the child’s unabridged birth certificate.  According to the Department of Home Affairs, this is necessary “for the safety of children, including their protection from child trafficking, abduction and kidnapping.”  The requirement was set to come into effect on 1 October 2014. However, following widespread concerns regarding the likelihood of obtaining an unabridged birth certificate in time for travel to and from South Africa, the effective date of this requirement was postponed to 1 June 2015, to allow travelers sufficient time to gather the necessary documentation.  On 26 May 2015, the Department of Home Affairs issued a travel advisory regulation regarding requirements for children traveling through South African ports, which included exemptions to the requirement to produce an unabridged birth certificate.  One such exemption is that, “[i]n the case of countries that endorse the particulars of parents in children’s passports, or other official identification documents, these documents shall be acceptable for the purpose of establishing the identity of parents of the travelling minor.”

Conclusion

The Minister of Home Affairs has been quoted as saying “we are open for discussion and ready to address concerns that people might have or raise” in relation to South Africa’s immigration law.  Evidently, there are some complexities created by the amendments to South Africa’s immigration law that have yet to be resolved.  Accordingly, foreigners are well advised to seek proper counsel on their immigration to South Africa.

Twaambo Muleza

Twaambo has a BA LLB LLM and was admitted as an attorney in 2010. She completed her articles at Bowman Gilfillan and rose to the level of senior associate in both the public and regulatory law team and the mergers and acquisitions team, where she was seconded to the commercial law team at Anglo Operations Ltd. Twaambo then took up a position as senior associate at Baker & McKenzie in their mergers and acquisitions team. She joined Caveat Legal in 2015.