Cape High Court forces Home Affairs service delivery

2014-11-18 10:30

Without any luck alone, immigrants have taken the DHA to court again.

A Western Cape High Court case has pushed negotiations in the public’s favour. On the 17th November 2014, the front page of the Western Cape newspaper the Cape Times bore testimony to a hidden struggle that faces thousands of foreigners immigrating to South Africa, all of them totally eligible for visas: the backlog at the Department of Home Affairs (DHA). In short, the article reports how a case at the High Court has finally come to a close and that a negotiated settlement in which Home Affairs now has to stick to the deadlines, as well as, the law, has been reached.

The newly upgraded Immigration Act – improved regulations were made effective on the 26th of May 2014 – gives the Department of Home Affairs 60 days to process temporary residence applications (longer times are given for permanent residence). These time constraints are seldom adhered to. In reality, foreigners are plagued with worry that the jobs they have been offered will be given to someone else by the time they receive their visas. Or that the house they and their South African spouse have just bought will stand empty for a few months until they have their visas to enter the country. As the newspaper article states, one German man has waited over 8 years and gone through numerous re-applications without a final result.

For most, there is little recourse without spending large amounts of money. Even for the rich immigrants to South Africa, it is highly frustrating to know that you qualify, that you have done everything necessary in your application and that there is still nothing you can do to speed things up without using the services of a lawyer in a court. Since 2010, numerous court cases of varying size and different numbers of joint applicants have all given the same outcome: Home Affairs is forced to make immediate or quick visa application decisions for those involved. In 2011, scores of people took the DHA to court and won not only quicker service, but also costs, taking up millions of taxpayers money. Another large-scale court case started in 2014 and should still see results this year.

Following the aforementioned case, many of the applicants will now receive immediate responses from the DHA, with others receiving urgent attention to be decided upon within 60 days, as immigration law dictates. As one immigration lawyer put it very succinctly: “The problem that is the ultimate cause of this application is that the department lacks the administrative capacity to determine applications made to it in any reasonable or lawful time period.”

Those wondering when their visas or permits will come out will hopefully realise through this matter that there are legal options available to them, albeit at a fee. For those unable to pay, even though they are eligible and wholly needed by our economy, the wait will be arduous, but worth it in the end. One can only hope that service delivery at Home Affairs will improve to the level stated in the law.

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