Report card for immigration law and home affairs

April 1st, 2018

By Chris Watters

Whether the issue surrounds Syrian or African refugees ‘pouring’ into the European Union or the United Kingdom (UK). Mexicans supposedly flooding into the United States, or the possibility of North Koreans fleeing to China, these are the challenges facing lawyers in the immigration law field. If anyone is unsure of the centrality of immigration law and policy to governance globally, only two words matter: ‘Trump’ and ‘Brexit’.

At the International Bar Association’s (IBA’s) biennial conference on immigration law held in London in November 2017, two ‘themes’, namely, ‘Trump’ and ‘Brexit’ dominated proceedings, not to mention the downstream challenges they pose.

Two South African attorneys attended and spoke at the conference. Director of Immigration and Dispute Resolution at ENS, Zahida Ebrahim and I, tried to get the positive message across that South Africa (SA) is open for business, despite issues such as questionable controls at Wonderboom Airport, as well as questionable controls in the granting of South African citizenship. But, by way of a report card on immigration in SA in 2017 and the Department of Home Affairs, several issues stand out – in no particular order.

During 2017, three Ministers of Home Affairs were appointed. An immediate consequence of this appears to have been that the proposed re-write of the Immigration Act 13 of 2002, arising from the new White Paper on International Migration – that the then-Minister Malusi Gigaba had been driving – was pushed back. There is also a suspicion that Minister Gigaba’s drive to get a better slice of the budget to enhance the enforcement-related resources of the Department of Home Affairs, may have lost some initiative.

It is difficult to speak about the Department of Home Affairs without discussing its front of house service provider for all visa and permit related applications – VFS Global. This ‘facility’ was launched in June 2014. One of the intended functions of outsourcing was to better manage corruption by setting up a firewall between the Department of Home Affairs and the public. In this regard – and while current statistics are not available – from the perspective of ‘public perception’, matters have definitely improved although the current arrangements are not perfect. Customer service has generally improved over what it was when applications had to be submitted through the Department of Home Affairs’ regional offices. The legality of aspects of the VFS Global service, including the fees that the public must pay, as well as the enforcement by VFS Global of visa requirements on behalf of the Department of Home Affairs and refusing to accept supposedly ‘incomplete’ applications remains an open question.

Increasingly, embassies are also engaging VFS Global to provide the same service. One widely acknowledged benefit of this has been the improvement in transparency in knowing what the requirements are for any given visa or permit process – especially when some embassies formulate their own, additional requirements. For example, in countries like China, India and the UK, VFS Global has set up satellite offices in other centres to receive applications thus reducing the cost and inconvenience to the local public and businesses.

Returning to the Department of Home Affairs’ service provision, it continues to have challenges with decision-making that appear as little more than irrational to applicants. The public’s frustration with this is compounded by the delays they experience when having visa- or permit-application appeals adjudicated, which can take many months.

Quite fundamental challenges continue to exist for the importation of much-needed expat skills into the national economy.

Arising from the 2014 Immigration Regulations, the Department of Labour must ‘recommend’ the issue of a general work visa, as well as the extension of general work visa – including general work visas issued prior to 2014. Not only does the Department of Labour take six months or longer to draw up its reports (how many companies can afford to keep vacancies open that long?), officials recently claimed that the Department of Labour has an 85% rejection rate (this has not been confirmed yet). If the Department of Labour does not recommend the grant of the visa, the Department of Home Affairs treats that as binding.

The primary category of a work visa is the ‘critical skills work visa’ – where the applicant or holder is deemed to have a prescribed critical skill. Challenges persist with the definition of what many of the critical skills are and how an applicant can prove this. One can find an embassy being satisfied that a person has a critical skill and thus issue the visa, only to have the Department of Home Affairs withdraw it because it disagrees.

The other major work visa category is the ‘intra-company transfer work visa’. The introduction of the Employment Services Act 4 of 2014 (the Act) increasingly raises challenges for the transfer visa. This is because s 8 of the Act, which is administered by the Department of Labour, requires that companies must have a skills transfer plan in place in respect of any position in which a foreign national is employed. This process is supposed to be the subject of regulations. None exist yet, but many embassies are insistent on seeing the skills transfer plan before the transfer visa will be approved.

The ‘short term work visa’ option – for persons coming to work for up to 90 days – appears to be working well, albeit there continue to be disputes as to when it is needed and when it is not.

An ongoing global challenge continues to be that of refugees and refugee management. Problems range from the Department of Home Affairs’ apparent opposition in the courts to stop it from being compelled to re-open a refugee reception office in Cape Town to deal with the backlog of pending refugee application appeals and the delays, often of years, in considering applications by recognised refugees, for permission to apply for permanent residence.

This cannot be in anyone’s best interests – unless SA is trying to send the message that it is open for business, as long as you are not a refugee.

Chris Watters BA LLB (Rhodes) is an attorney at Chris Watters Attorneys in Johannesburg.

This article was first published in De Rebus in 2018 (April) DR 52.