Lawyers challenge new Immigration Bill

Posted 29 May 2014 Written by Carol Paton

Immigration lawyers are challenging new immigration rules that make it virtually impossible to apply for certain categrories of visa. They says the rules are incomplete, resulting in offoicials turning away applicants, writes Carol Paton in Business Day

Immigration lawyers say they will litigate against the new immigration regulations which came into effect on Monday on the grounds that they are incomplete and make it impossible to apply for several categories of visas.

The regulations, which have been in the making for three years, set down the conditions for visa applications for foreigners, including for work; the establishment of businesses; and for the spouses and partners of foreigners working in South Africa.

Immigration practitioners say because the regulations are "not complete", Department of Home Affairs officials are unable to process visa applications. They say that some officials are turning applicants away while others are continuing to use the Immigration Act of 2002, and ignoring the new regulations.

Forum of Immigration Practitioners of South Africa (Fipsa) chairman Gershon Mosiane said in an interview on Wednesday: "We need either a correction or suspension until further notice which would allow applications to be processed under the old act. Failing that we are looking at litigation to clear the decks and sort things out."

The regulations, which were published for comment in February, will bring into effect the amendments to the Immigration Act of 2002 passed in 2007 and 2011. Together the regulations and the amendments make extensive changes to the visa application regime.

Without the regulations the amendments to the Immigration Act passed in 2007 and 2011 cannot be implemented and the old act — passed in 2002 — must be used for visa applications.

It is believed that a meeting between Home Affairs Minister Malusi Gigaba and immigration practitioners will be held today. Mr Gigaba is also expected to address the media today on the regulations.

Department of Home Affairs spokesman Ronnie Mamoepa said that the department did not have any concerns about the regulations as they stand. "We are happy with the work that has been done," he said.

Among the areas that Fipsa says are "missing" or have rendered the immigration regulations unimplementable are a list of critical skills; a list of economic sectors designated in "the national interest"; a schedule of fees; and the requirements for a spousal visa application.

The critical skills list will set out the professions and trades that qualify for work permits regardless of an employment offer. This list, according to the amended act, must be published by the minister, but has not yet been done.

The list of economic sectors designated in the national interest, are sectors in which foreigners are permitted to establish businesses. This, says the act, must be decided by the Department of Trade and Industry, which has also not yet been done.

A big point of contention in the regulations is a requirement that in order to qualify for a spousal or life-partner permit, applicants must be able to prove a relationship of at least two years.

In the draft regulations the requirement was a five-year relationship. The lawyers contend that this requirement is unconstitutional.

They also say that a new requirement that spouses of work permit holders will have to apply from abroad for certain categories of visa, is "irrational and unconstitutional".

The new regulations were drawn up by former minister of home affairs Naledi Pandor. While they will give effect to amendments made to the Immigration Act since 2002, the African National Congress has indicated its intention for a complete overhaul of immigration policy.

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