Newly signed South African immigration regulations unconstitutional and causing chaos

2014-05-27 14:13

Malusi Gigaba

The day of the 26th of May 2014 finally arrived. It was the first day of a new era of immigration law in South Africa. Last week the new South African immigration regulations were published in the government gazette, after being signed in by President Jacob Zuma and Minister of Home Affairs Naledi Pandor.

This is after confused immigrants of all kinds were up in arms over the initial set of immigration regulations that proposed very harsh changes, some even unconstitutional. The public were allowed to send in their opinions and ideas, and the period from around March until now (a great deal of time) was used for the government to address these concerns. Speculation was rife that the decision to implement these regulations was postponed until after the national elections.

The resultant regulations have improved the situation on some levels, but in general have not, and when taken in conjunction with other events, show the dire state that Home Affairs is in, as well as the mountain they still have to climb. Here are a selection of some of those key issues:

1. A new minister was appointed literally days after the new immigration regulations were signed into being. Malusi Gigaba replaces Naledi Pandor, and although the outlook on his performance seems good, such a change at such a time does not bode well for a planned and organised Home Affairs Department.

2. Some of the new immigration laws and regulations seem unconstitutional. The main example usually quoted is that spouses or life partners of South African citizens cannot join their loved ones in the Republic unless they can prove a marriage of two years or longer. While this is debatable for life partnership arrangements, those in formal marriages are protected by constitutional law not be separated in such a way.

3. Industries such as the film industry, a huge creator of jobs and a big economic boost for our country, will now struggle to in some cases lengthen and also apply for the various visas without sending foreign employees back to their countries of origin first. There are one or two advantages to the new regulations for this industry, however.

4. The DTI and Department of Labour are now involved in the application adjudication process, yet they are not informed of all the changes and also have no supporting setup to handle the applications at all.

5. Some applications must now be made from abroad, such as first applications and certain changes or extensions. This is not going to stand well when, for example, the delay and cost in application will split a family or cause someone to lose their offer of employment. We have already seen millions of tax payers' money paid by Home Affairs when losing court cases as they were sued by those who lost their job contracts due to lengthy permit adjudication times.

6. Lastly, and in my opinion the biggest concern, is that various Home Affairs offices around South Africa and the world had (and still have!) no idea that the new regulations have been published. They have no idea of the new application fees, since these have not even been published by the Department of Home Affairs either. Similarly, the Quota and Exceptional Skills Work Permits are now removed and have been replaced by a Critical Skills Visa, however there is no mention anywhere of what qualifies one for this new visa.

It is plain to see that there is little communication between government departments and even within departments, as well as an unorganised approach to the entire setup of who to allow into South Africa, and how. While it is not all doom and gloom, many facets of the new legislation and regulations are without a doubt going to cause many people to sue the Department of Home Affairs, costing us our taxpayers' valuable funds.

Let's hope that the new Minister of Home Affairs, Malusi Gigaba, can dig deep quickly and restore some order to an already long-standing mess.

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