Is it time to ask the Constitutional Court to examine the workings of Home Affairs?
7 Apr 2017 - by Leon Isaacson
One of the key issues not raised in all the discussions around the changes in South Africa’s Immigration laws since mid-2014, relates to the general processes and conduct of the Department of Home Affairs in the execution of its duties. These duties include receiving and adjudicating applications submitted through Visa Facilitation Services (VFS), an outsourced company which is only meant to handle the logistics of this process at their front offices in nine provinces. They have no legal right or mandate with respect to offering advice in any form.
The SASSA Constitutional Court Case, which saw the Judges of the Highest Court in the land intervene in a looming crisis with respect to the incapacity of the Ministry of Social Development to deliver and pay social grants to 11 million people, has a striking parallel. The Constitution and the social development legislation prescribe roles and responsibilities which, in general terms, empowers and provides the framework for the Minister to exercise her role and it sets out certain responsibilities. These are set in law and can only be exercised, or delegated, as prescribed by the law.
In the case of Home Affairs, the Minster has responsibility for Immigration and can only delegate his responsibilities to another party/person within the sphere of the State. In the case of VFS, it is a private company advising at and through its offices, often incorrectly, on Immigration matters. Home Affairs is basically inaccessible and unresponsive on key issues related to documents and decisions which impact on applications which people have to submit. The Minister’s authority has been unlawfully delegated and is being exercised by an unauthorised party. Directives, which applicants require in order to have information for their applications, are generally not available and the attitude of the department is that they are not required to make this information available.
Immigration is complex in many cases and South Africa’s scheme has its convolutions. The law is not cohesively written and sometimes what you read in the Immigration Act and regulations “ain’t as advertised” as many a bargain hunter has found out after buying a cheap product. The roles of the Act and regulations in prescribing the framework and requirement are interchangeable and often read like a series of afterthoughts. Then there are directives, which are not accessible, and court cases. Add to that the interpretations of various staff members at various levels and at Consulates abroad and one would swear that you had wandered on to a remake of the Tower of Babel.
Lawyers and practitioners represent applicants and in fact people are entitled to representation in terms of our Constitution. Home Affairs, at all of its offices and VFS offices, effectively denies people this right. When challenged, they might relent, but it is clear that there is a high level disdain for the right of representation and a culture of obstruction. In many cases there is blatantly unconstitutional advice and decision making, which denies people the right to family life, the right to do business and a host of other rights in the Constitution.
It is quite common to receive decisions from Home Affairs and Labour that have no rational, logical or fair basis. To say that people can complain or appeal is trite – if the basic service is not offered on a systematic basis and it takes 6-12 months to get a similarly poor decision, then the system has broken down and the courts have to become involved.
Then there are decisions by courts in respect of immigration matters which Home Affairs simply ignores. In the Dabone matter, the courts decided that asylum seekers and refugees could apply for other prescribed visas inside South Africa, with reduced requirements. Home Affairs has overridden this case and refuses to accept applications. In the Stewart matter, the judge clearly stated that conditions, which provide the framework once a person has status (eg. work, study, visa) may be changed inside the country. In many cases, Home Affairs denies applicants the right to do this. VFS implements these decisions, unlawfully, as their “system” which will not allow these applications to be accepted.
VFS charges R1 350 per application and had a minimum of R200m in turnover inside South Africa and probably another R200m turnover through applications submitted at SA missions abroad in the last year. None of these fees are prescribed and these are therefore unlawful. I cannot find a trace of competitive tenders or bids which cover this arrangement. It is effectively a monopoly contract which has been extended to many SA Missions in many countries.
A key State department function has been unlawfully outsourced to a private company for additional non prescribed fees. Representation is denied to applicants and representatives are openly vilified. The same department overrides court decisions and issues decisions which are fundamentally against the Constitution of the country.
Isn’t it time for the judges to summon the authorities to account for this state of affairs?
Leon Isaacson is CEO of Global Migration Group an Immigration and African Investment Facilitation Group, with offices in Johannesburg, Cape Town and Egypt. As a registered immigration practitioner, he specialises in advising individuals on companies on immigration and investment procedures and processes, monitors legal, political changes and opportunities and comments on these for various publications. Clients include Universities, listed corporations, as well as small medium and large investors. The company also recruits and places foreign candidates with Critical Skills in South Africa