Light at the end of the immigration policy tunnel

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After a disastrous initial implementation of South Africa’s revised immigration regime, government has made great strides toward a more practical and equitable immigration policy. The Department of Home Affairs (DHA) can rightly claim success across a broad spectrum of issues. But there is still a long road ahead.

When the new immigration regulations were implemented in 2014, it was met with near-universal condemnation and outcry. Parents were outraged at the new requirements for travelling minors, the tourism sector was in a state of near-panic as tourist arrivals dwindled thanks to prohibitively onerous legal requirements, and investors and businesspeople were left unsure as to what extent their freedom of movement would be impeded. It was an untenable situation.

In response, an Inter-Ministerial Committee was established to develop measures to address some of the main issues. The immediate measures proposed by the Committee included:

• Implementing systems to capture biometrics at key ports of entry, with pilot programmes at OR Tambo International Airport, King Shaka International Airport, and Cape Town International Airport;
• Introducing an Accredited Tourism Company programme for BRICS countries, specifically China, Russia and India;
• Considering a long-term Multiple Entry Visa for a period ranging from 3 months to 3 years to accommodate business travellers and academics;
• Allowing principals to issue letters confirming permission for children to travel on school tours; and
• Extending the validity period of the parental consent affidavit to 6 months.

Progress has been swift and highly encouraging. The biometric systems are in place at the three major airports as well as Lanseria, and have been successfully tested. Thanks to this, transit visas are no longer required for persons traveling through these ports of entry. To ease the entry requirements for groups of Chinese travellers, the Department of Home Affairs waived the requirement to have to apply for a port of entry visa in person when traveling in a group – on the condition that the biometric data of such travellers are taken upon arrival and departure from SA. While this is largely thanks to the highly regulated Chinese tourism sector, which means tour operators in that country are already accredited by the Chinese government, recognition must go to the DHA for taking such a practical stance.

Business travellers and academics can now apply for a long-term multiple entry visitor’s visa that remains valid for a period between 3 months and 3 years. In addition to the existing 10-year visa waiver for business executives from BRICS countries (which has been in existence since 2014), the DHA in January 2016 approved the granting of a 10-year multiple entry visa to business travellers and academics from Africa. A standardised template for school principals that can be downloaded from the DHA website has eased freedom of movement for school groups. In addition, the DHA took steps to facilitate travel of South African sports teams abroad. The highly controversial Parental Consent Affidavit has also been extended from 4 to 6 months.
Over the next few months, the DHA also plans to give effect to a broad range of additional measures, among them:

• Additional visa facilitation centres in Zimbabwe, United Arab Emirates, and Botswana;
• Visa waiver for India, Russia, China and other countries;
• Opening two additional business visa facilitation centres in Durban and Port Elizabeth;
• Printing parents’ details in their passports so they don’t have to carry birth certificates.

Broadly speaking, the DHA has done a commendable job of addressing the damage wreaked by the implementation of the original regulations. However, there are some baffling issues that need to be dealt with urgently to ensure the integrity of our immigration policy and respect the rights of SA’s citizens.

In the judgement related to a recent case (dated 29 January 2016, case number: 12520/2015), it was found that if a foreign national is married to or in a life-partnership with a SA citizen or permanent resident and is in possession of a visitor’s visa in terms of Section 11(1), they may apply for a visitor’s visa in terms of Section 11(6), from within SA.

Following this judgement, however, Visa Facilitation Services centres have been instructed not to process such applications.

The Immigration Act makes provision for the spouse and dependent child of the holder of a work or business visa to change their status in South Africa but excludes the spouse of a South African to submit an application in South Africa.

What has this country come to if our own government are affording foreigners more rights and respect for their family units/marriages than its own citizens? The DHA has an obligation in terms of our Constitution and the Preamble to the Act to respect the relationship between spouses and their rights to dignity as enshrined in section 10 of the Constitution. This includes the right to form and live as a “family” unit.

South Africans have a constitutional right to have their spouses (foreign or not) live in South Africa with them without any interruption whatsoever.  I implore the DHA to shed light on this matter and to bring speedy resolution to an issue that is certainly not designed to protect and enforce the rights of South African citizens.

Stefanie de Saude is an Immigration and Citizenship Law Specialist of De Saude Attorneys Inc. The firm specialises in South African immigration and nationality law.

Originally published on ENCA, Wednesday 6 July 2016 – 6:28am.

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