Court action looms for Department of Home Affairs

The legality of the new immigration rules implemented by the Department of Home Affairs last week may be challenged in court.

Incoming Minister of Home Affairs Malusi Gigaba last week announced new immigration rules which extend to visa applications, permanent or temporary stay and foreigners looking to set up businesses in South Africa.

But the new rules have come under fire, as some immigration lawyers are gearing up for possible litigation to have the rules reviewed and amended.

Gigaba says the new rules are in a bid towards “strengthening security elements” in South Africa, as immigration rules in the past have been open to abuse. He further adds that the stipulations in the legislation are consistent with international standards and benchmarked with the South African constitution.

Specifics of new immigration rules

The new immigration law prohibits foreigners from using agents or lawyers for visa applications, calling for all applicants to apply in person. People who enter South Africa as visitors are also barred from renewing or changing their visa status while in the country - foreigners must renew visas from the country they reside in.

The new regulations have a wide reaching impact on personal relationships. Visa applicants will have to prove that they have been in a relationship with their foreign spouses or life partners for at least two years to qualify for a visa. Life partners are subject to interviews on the same day to confirm the authenticity of their relationship. Overstaying after a visa has expired is prohibited. Rather than being fined, such offenders will now be declared “undesirable”.

Premise for court action

The Forum of Immigration Practitioners of South Africa (FIPSA) has taken particular umbrage to a clause dealing with spousal visas, saying the government cannot impose on personal matters.

“That cannot be constitutional. The Constitutional Court says ‘you cannot deprive someone the right to live (however they want).We don’t want an environment of anarchy, we want a constitution in line with the international law,” FIPSA chairman Gershon Mosiane argues.

Chairman of the Immigration Law Specialist Committee of the Law Society of South Africa Julian Pokroy agrees: “family life and anything like, that prevents people from being together (under the constitution) is unconstitutional”.

Pokroy says that the Law Society is not considering any court action, as they are “carefully considering” all options before reverting to litigation.

If the new regulations go on unchallenged, then the “immigration system is going to collapse” as there are so many flaws with the regulation, says Mosiane.

FIPSA is currently taking legal advice on whether to consider legal action against the department, but Mosiane dismisses Gigaba’s assertions that if legal action is imminent, then the various checks and balances are in place to defend the immigration rules.

FIPSA says the department did not allocate sufficient time for public comment in February when draft immigration regulations were gazetted under then minister Naledi Pandor.

Cape Town based Craig Smith & Associates, an immigration law firm confirmed to Moneyweb that it is looking at legal options, but nothing is cast in stone yet.

Department of Home Affairs spokesperson Ronnie Mamoepa says the department has not received any notification of litigation related to the amendment of immigration laws. “It is a constitutional right to take the matter to court, we are convinced that the new immigration laws adhere to the constitution,” he says.

The immigration rules also apply to the business community. Foreigners looking to set up businesses in South Africa have to ensure that 60% of their workforce comprises South Africans. Under the previous law, foreigners would be granted business visas if they would commit at least R2.5 million into the country.

Mosiane says under the new regulations, foreign investors might be forced to commit R5 million. The Department of Trade and Industry and Department of Labour will be involved in every application for foreign businesses to set up in South Africa.