Legal challenge against the unlawful closure of immigrants' businesses

The Lawyers of Human Rights (LHR) appeared in court last month to challenge the unlawful closure of asylum seekers and refugees' businesses by the ministers of police, home affairs and labour. The challenge seeks to protect the right to work and trade as refugees and asylum seekers in South Africa, as stated in the refugee law.

The police launched an operation last year named "Operation Hardstick", shutting down businesses in Limpopo which were operating without the required business permits. As such, more than 600 businesses were closed down and foreign employers and employees were also arrested.

Somali Association of South Africa, the Ethiopian Community of South Africa and others were rejected by the North Gauteng High Court last year in their application seeking to bar the closure of their businesses. 

Procedure for application of Zimbabwe Special Permit

ZSP will be open to all those who applied for ZDP permits, meaning even those whose applications were rejected in 2010 would be allowed to reapply.

DHA understands that many ZDP permit holders whose permits have expired are experiencing many challenges with their employers, banks, etc. DHA will send a communique to all government departments, banks and other relevant institutions as well as employers to not withhold any payments due to ZDP permit holders after the expiry of their permits because they are going to be issued with new permits.

Mr McKay encouraged all those ZDP permit holders who might have received the notice "undesirable immigrant" for possessing an expired permit when crossing border points to appeal to DHA for upliftment of their permits until December 2014. This notice will then be removed.
It must also be emphasised that all ZDP permits, despite their date of expiry, are going to expire in December 2014 and every ZDP permit holder is expected to apply for ZSP.

The DHA will soon announce when and where to go for police clearance.  However, police fingerprint clearance is to be obtained directly from any police station.

• Requirements:

• Study permit: Letter of admission, valid passport and fingerprint clearance

• Work permit: Letter from employer, valid passport and fingerprint clearance.

• Business permit: valid passport, SARS registration, proof of registration of business and fingerprint clearance.

• To change permit (e.g.: from study to work permit) the applicant will have to submit documents required for that particular permit.

• Applications will be made online from 10 October to 31 December 2014 and all applicants will have to contact the call centre immediately to book an appointment for in-person submissions. In-person applications (submission of required documents and biometrics) will be done per appointment only from 01 Nov. to 30 April 2015.

• Adjudication of applications will take a maximum of 8 weeks.

• VFS.GLOBAL will open 10 facility centres to assist with applications. A website is provided for ZSP applications: http:/www.vfsglobal.com/zsp/southafrica

• An email is dedicated for inquiries: info@vfshelpline.com

• Working hours: 08h00 - 05h00 from Monday to Saturday

• Administration fee: R800,00. Normally VFS fee for visas/permits is R1350 but DHA negotiated for the reduction of the price specifically for ZSP in order to enable everyone to apply.

ADR0 Programme and Activities: 2013-2014

With the sponsorship of the Foundation of Human Rights, ADRO successfully managed to carry out its objectives in assisting refugees and asylum seekers. These activities include:

1) Workshop aimed to educate refugees and asylum seekers on access to refugee permits and the refugee status determination process

• The workshop was carried out at the end of December 2012 which was facilitated by Mr Zoe Nkongolo, an experienced human rights activist, and seconded by ADRO and other community leaders. 
• 60 participants attended the workshop 
• The participants expressed a general sentiment of satisfaction after gaining a deeper understanding of their rights and responsibilites- they were more aware of the refugee laws and their required duty in the application process. 
• By doing so, it reduced the burden on DHA/RROs as the application process will be smoother 
• Other issues like cultural diversity, xenophobia and conflict management were also brought up and discussed. 
• In July 2014, ADRO carried out another human rights workshop to educate refugees and asylum seekers on their rights as many are disadvantaged due to the lack of knowledge on their rights as refugees, especially the unemployed. 

Migration of the Refugee Passport and Identity Document Office to Bellville

According to the Cape Town Temporary Refugee Facility Center Manager Mr Mathebula, the Refugee Passport and Identity Document Office will officially move to the new Department of Home Affairs premise in Bellville as of September 1st, 2014.

The new office is meant to improve the applicants' experience with a larger seating space that could accommodate more applicants as well as a designated entrance directly to the office which improves the office's accessibility. Therefore, the current problem of applicants, especially children, queueing in the rain will be avoided. Also, the separate entrance that leads directly to the office, and the staff stationed at the entrance, ensure that there is no confusion in locating the office. This is supposed to improve the current situation where the office located on the 5th floor is highly inaccessible to elderly applicants who had to climb the stairs when the lift breaks down.

Moreover, as most of the applicants are Somalis who reside in Bellville, the migration of the office reduces the transportation time and cost, thereby making it more convenient for the applicants.

The new office is located at 85 Voortrekker Road, Boston House Center, Bellville.

COMMENCEMENT OF NEW IMMIGRATION AMENDMENT ACT

As of 28 May 2014, the immigration amendment act of 2007 has come to operation after the approval by President Jacob Zuma and the Minister of Home Affairs.

• The Department of Home Affairs (DHA) has officially outsourced the handling and processing of visa applications to a company called Visa Facilitation Services (VFS). 

• The VFS will be opening 11 offices, which will be referred to as Visa Application Centres (VACs), around South Africa beginning on 2 June 2014.
• The centres will be opening in these cities and towns on the following dates:      

CITY	ADDRESS	OPENING DATE
Pretoria	Cherry Lane Office Park, 1st Floor, 114 Fehrsen Street, Nieuw Muckleneuk, Brooklyn	2 JUNE 2014
Rustenburg	Von Wielligh 26, Bo Dorp	2 JUNE 2014
Kimberley	Unit 3, Building 2, Agri Office Park, N12	2 JUNE 2014
Durban	Suite 3, Silver Oaks, Ground Floor 36 Silverton Road, Musgrave	9 JUNE 2014
Bloemfontein	Suite 4, The Park, 14 Reid Street, Westdene	9 JUNE 2014
George	Unit 5, Royal Eagle, 5 Progress Street	9 JUNE 2014
Johannesburg	1st Floor Rivonia Village, Cnr Rivonia Boulevard and Mutual Rd	18 JUNE 2014
Cape Town	21st Floor, 2 Riebeek Street, Absa Building	20 JUNE 2014
Polokwane	Shop 13, Thornhill Shopping Centre, Cnr Veldspaat & Munnik avenues, Bendor	23 JUNE 2014
Nelspruit	Office 5F, Nedbank building, 30 Brown Street	23 JUNE 2014
Port Elizabeth	Office 7D, 1st Floor Moffet on Main, Cnr 17th Ave and Main Road, Walmer	23 JUNE 2014

• At the VACs, applicants will submit their applications and biometric data for processing. 
• Once the applications have been thoroughly checked, they will then be scanned and forwarded to the Head Office of Home Affairs in Pretoria. 

• The VFS will operate strictly as a processing operation and will not offer potential immigrants any advice on immigration rules etc.  Therefore, prospective immigrants will still have to seek advice from immigration consultants, and the consultants will be able to accompany applicants. 
• Zimbabwe nationals on Special Dispensation for Zimbabweans Project, Asylum and Refugee cases will still be directly handled by the Department of Home Affairs.
• The VFS does not have the authority to grant or refuse visas as that decision still lies with the DHA. 
• The VFS will charge an additional service fee of R1350 incl. VAT per application. (Do note that this amount excludes the standard DHA application fee.)
• Submission timings are between 8am and 4pm (Monday to Friday)

• New regulations also state that one cannot change from a Visitor’s Visa to another type of visa; these applications for change of conditions must be made at a mission abroad, i.e. an embassy or consulate, where the applicant is an ordinary resident or holds citizenship.
• However, exceptional circumstances include if an applicant is in need of life saving medical treatment or is an accompanying spouse or child of a business or work visa holder who wish to apply for a study or work visa

• Spouses and life partners looking to apply for temporary or permanent residency in South Africa based on a spousal or life partner visa will need to prove that they have been together for two years, as defined in Section 1 of the Act based on subregulation (2): 
• (2) An applicant contemplated in subregulation (1) must submit- 
• (a) a notarial agreement signed by both parties attesting that-
• (i) the permanent homosexual or heterosexual relationship has existed for at leas two years before the date of application for a relevant visa or permanent residence permit and that the relationship still exists to the exclusion of another person ; and
• (ii) neither of the parties is a spouse in an existing marriage or a permanent homosexual or heterosexual relationship;
• The ‘relationship-proving’ time period was significantly reduced from the proposed five year period stated in the draft regulations after the Department of Home Affairs (DHA) received immense pressure from the public to do so.
• If a partner or spouse was in a previous marriage, it is necessary to provide official documents that prove the dissolution of such marriage either by divorce or the death of the other spouse. The documents include: 
• (i) the financial support to each other; and
• (ii) the extent to which the related responsibilities are shared by the applicant and his or her spouse. 
• The updated regulations also state that life partners will need to attend separate but simultaneous interviews to determine the authenticity of the existence of their relationship.

• The DHA has officially eradicated the Exceptional Skills and Quota permit categories
• It is unclear whether those who have submitted an application under one of these categories will still have their application processed. Consult your nearest DHA branch for specifics.
• Current Exceptional Skills and Quota Permit holders will not be able to renew their permits going forward.

• Those looking to renew their visa while in the country must do so 60 days before the current one expires.  This change was reportedly made due to the DHA’s inability to process an application in the previous time period (30 days).

• Applications for this visa will have to include a certificate from the Department of Labour confirming the following:
  • despite a thorough search, the prospective employer could not find a South African employee with the skills and experience equivalent to those of the applicant.
  • the applicant has proven skills and experience in line with the job offer.
  • the salary and benefits of the applicant are not inferior to those of citizens or permanent residents.
  • the contract signed by both the employer and applicant stipulates conditions that are in line the labour laws of South Africa.
• You will also need a document to prove that your qualifications have been approved by the South African Qualifications Authority (SAQA). This document must be translated into one of the official languages of South Africa by a sworn translator
• The work visa will be valid for a maximum of five years. 

• The Critical Skills Visa is unclear in the type of skills which qualify as critical skills. As a result, it is difficult to apply for this visa due to the ambiguity. 
• (5) An application for a critical skills work visa shall be accompanied by proof that the applicant falls within the critical skills category in the form of -
• (a) a confirmation, in writing, from the professional body, council or board recognised by SAQA in terms of section 13(1)(i) of the National Qualifications Framework Act, or any relevant government Department confirming the skills or qualifications of the applicant and appropriate post qualification experience;
• (b) if required by law, proof of application for a certificate of registration with the professional body, council or board recognised by SAQA in terms of section 13(1)(i) of the National Qualifications Framework Act;
• This visa will replace the Exceptional Skills and Quota Visas. 

• Visitor’s Visa holders who wish to change the terms or status of their visa must submit an application no less than 60 days prior to the current visa’s date of expiration.
• Is it no longer possible to change from a Visitor’s Visa to another visa category within South Africa.

• It will now be a requirement for businesses to get a recommendation letter from the Department of Trade and Industry (DTI).
• 14.(1) An application for a business visa by a foreigner who intends to establish a business or invest in a business that is not yet established in the Republic, shall be accompanied by-
• (a) a certificate issued by a chartered accountant registered with the South African Institute of Chartered Accountants or a professional accountant registered with the South African Institute of Professional Accountants to the effect that-
• (i) at least an amount in cash to be invested in the Republic as determined from time to time by the Minister, after consultation with the Minister of Trade and Industry, by notice in the Gazette, is available; or
• (ii) at least an amount in cash and a capital contribution as determined from time to time by the Minister, after consultation with the Minister of Trade and Industry, by notice in the Gazette, is available;
• The time taken for DTI assessment will most likely prolong the process to acquire a business visa. 
• Also, according to section (b) an undertaking by the applicant that at least 60% of the total staff complement to be employed in the operations of the business shall be South African citizens or permanent residents employed permanently in various positions
• Business visas will be granted for no longer than three years at a time
• No business visa will be issued to a foreigner who intends to establish or invest in a business that is listed as undesirable business undertaking.

• Holders of a Study Visa may not conduct part-time work exceeding 20 hours of labour a week.
• Both Study and Exchange Visas will only be issued for the duration of the study period or exchange programme respectively.
• An exchange visa (for persons under 25 years) will not be granted to conduct work pertaining to an undesirable work as published by the Minister in the gazette, after consultation with the Minister of Trade and Industry.

• An application must be accompanied by a police clearance certificate.
• Applicants will no longer need to prove a minimum monthly income of R20, 000 per person from a source other than work; rather, the sum will still be determined by the combination of assets realizing, per month, determined from time to time by the Minister of Labour. 

• An Asylum Transit Visa issued at a port of entry will be valid for a period of 5 days to enable the holder to report at a nearest Refugee Reception Office.

•  Fines will no longer be charged for overstaying. Persons who overstay for a prescribed number of times will be declared as undesirable. 

Dental Care visit to Bluewaters Refugee Camp

UPDATE ON IMMIGRATION MATTERS