Lawyers for Human Rights
Lawyers for Human Rights

Demystifying new immigration laws

By Kaajal Ramjathan-Keogh

New immigration regulations are causing consternation among foreign nationals living and working in South Africa, as the provisions severely prejudice their fight to become documented.

One of the most concerning elements is the situation of foreign spouses and life partners of South African citizens or permanent residents. Those married and wishing to apply for relative or spousal visas or permanent residence may apply after their marriage. Unfortunately, the new rules discriminate against unmarried homosexual and heterosexual couples. They must prove they have been in a relationship for at least two years — a change to draft regulations that required proof of at least five years.

Draft regulations were open for comment in February and no information was available until we heard they would come into effect on May 26. The Immigration Act brings into operation amendments from 2007 and 2011, which were passed but stayed dormant. Since the end of last month, both the amended act and accompanying regulations have been in force.

The new rules make harsh changes to immigration laws. The asylum transit visa’s validity has been reduced from 14 to five days. This means new asylum-seekers have only five days to present themselves to lodge their applications, which is nigh on impossible if they arrive in South Africa anywhere other than Beitbridge.

Immigration requirements for travelling with children have become more difficult. If parents travel into or out of the country with a child, they must produce an unabridged birth certificate. When one parent is travelling with a child, they also need a consent affidavit from the other parent. These requirements are not publicised by the department of home affairs and have serious consequences for families unaware of them. While it is fairly easy to obtain a passport, the application for an unabridged birth certificate can take a long time. In recognition of the difficulties in acquiring these documents, the regulations on travelling with children will be applied only from September.

For general work visas, critical skills visas, intra-company transfer work visas and medical treatment visas, people must apply from outside South Africa. All categories of work visas will be issued for a maximum of five years, while a medical treatment visa will be issued for six months at a time. The National Scarce Skills List has been issued for comment but, because it has not yet been gazetted, no applications for critical skills visas can be lodged.

The contentious elements of the new rules are the declaration of people as “undesirable” and “prohibited” and the strict penalties that accompany this. In terms of regulation 27, people will be declared undesirable if they fall foul of these rules:

• If a person overstays for a period of one to 30 days, they will not be readmitted for 12 months;

• If a person overstays for a second time within a 24-month period, they will not be admitted for two years; and

• If a person overstays for more than 30 days, they will be undesirable and will not be admitted for five years.

The administrative penalty for “overstaying” used to be a fine, but this has fallen away and people will now have to leave the country for these periods.

The new laws also provide for “prohibited” people, who will not be admitted to South Africa under any circumstances. These include a prescribed list of those carrying infectious or communicable diseases or viruses, those against whom there is an outstanding warrant or a conviction of genocide, terrorism, human smuggling, trafficking, murder, torture, drug-related charges, money laundering or kidnapping. It also includes those who are found in possession of a fraudulent visa, passport, permanent residence permit or identity document.

And finally, all regional home affairs offices are closed to the public for temporary and permanent residence permits. Applicants now have to present themselves to visa-management company VFS Global to submit applications and pay an additional R1 350 handling fee. The privatisation of visa processing is in line with global practice. VFS Global will only receive applications, while decisions on these remain with home affairs. This move will one hopes mean each applicant is treated fairly. It is also a way to reduce corruption and processing times.

Whether these changes will result in positive outcomes remains to be seen. For now all we know is applicants will have to dig deeper to pay for the privilege.

Kaajal Ramjathan-Keogh is the head of the Refugee and Migrant Rights Programme at Lawyers for Human Rights.

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