Between theory and practice: visa surprises for immigrants

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South Africa’s immigration laws implemented in May 2014 might appear to be clear and straightforward, but foreigners attempting to apply for and acquire a temporary residence visa and/or permanent residence permit are often surprised to discover that these laws, in theory, are far removed from the practice.

It is not uncommon to find a number of visa applicants having different outcomes to the same visa/permit applications filed. In theory, renewing a visa which expires in about 60 days should be a simple process. In practice, however, this could prove to be a complex and time-consuming process which may result in the application being ultimately rejected or the visa issued after the applicant has already left the country.

Much depends on where people applied for their visas or visa extensions, who handled the application, and how the official concerned interpreted the provisions of the Immigration Act. While immigration is a regulated process and officials processing the applications are meant to be guided by the Immigration Act and its Regulations, this does not always transpire in practice. Visa/permit applications in practice are sometimes processed on the basis of officials’ personal opinions, a directive which is more restrictive than the law which renders it ultra vires the Act and therefore unlawful, or on the particular mood of the official on that particular day. A variety of outcomes, therefore, is possible.

Most people do not fully understand their administrative rights, a lawful or unlawful refusal or a valid appeal or when to approach a competent court for relief. They may abandon their application at the first incorrect refusal, believing and trusting the decision of the adjudicator to be correct, when in many instances, these refusal decisions are incorrect in law or fact. Visa/permit applications are required to be managed with the highest degree of dignity expected of the South African government, but often this does not occur. It is important to note that in most instances, these officials often have every intention of providing the correct advice and processing applications lawfully.

A growing need for specialised immigration lawyers

With the changes in law and variance in practice, there is a growing need for the assistance of specialised immigration lawyers. An immigration lawyer understands the Act and the processes to be followed to achieve, amongst other things, lawful outcomes. While any person is able to put together a visa or permit application, this person may not have the knowledge and/or expertise in understanding and complying with a legal process. A popular misconception in using an immigration attorney is that foreigners often assume that attorneys are used principally to fast-track applications/outcomes. This is not so.

These attorneys may over the years have cultivated relationships with the Department of Home Affairs and its officials but the principle role of the attorneys are to ensure lawfully compliant applications are filed, that applications are lawfully processed and the rights of applicants are promoted and protected. Having officials fast-track applications for any person (attorney or not) could be construed as corruption. Immigration is a “status issue” which affects one’s daily life and it is therefore inherently important and urgent. It should, therefore, be dealt with properly by both the applicant and the Home Affairs officials.

Originally published on Bizcommunity.com, 10 January 2017.