Imminent legal action threatens the South African Department of Home Affairs
While newly appointed Minister of Home Affairs Malusi Gigaba defends the recently gazetted, and very controversial, immigration legislation a storm is brewing among immigrants affected thereby.
The Department of Home Affairs might soon find themselves amidst a massive legal battle to prove the constitutional and legal validity of the new rules which were announced on 26 May 2014.
Immigration lawyers and practitioners are preparing for the likelihood of challenging the matter to court insisting that the new law must be reviewed and amended according to the court’s findings.
Gigaba is quoted as saying that the new rules will strengthen security elements in South Africa adding that previous laws were open to being abused. He went on to insist that the new law is in-line with international immigration laws and practices and not in violation of the South African constitution.
But, the new immigration rules, which extend to visa applications, permanent or temporary stay and foreigners, wanting to set up businesses in SA, have serious far reaching consequences says the Forum of Immigration Practitioners of South Africa (FIPSA).
Forthwith 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 will be subject to interviews on the same day to confirm the authenticity of their relationship.
The law also states that overstaying after a visa has expired is prohibited. Rather than being fined, such offenders will now be declared “undesirable” and may be denied access to the country for up to five years.
FIPSA chairman, Gershon Mosiane argued that the government will be imposing on personal matters. “That [the new immigration laws] 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,” he said, specifically referring to the law on spousal visas.
Julian Pokrov, chairman of the Immigration Law Specialist Committee of the South African Law Society supports Mosiane’s argument. Pokrov said a law interfering with family-life or the separation of a family unit is in fact unconstitutional.
While Pokrov confirmed that the Law Society is not considering any court action, they are “carefully considering” all options before reverting to litigation.
Mosiane warns of an inevitable collapse of the immigration system should the new law be enforced and unchallenged.
The FIPSA chairperson questions Minister Gigaba’s insistence that the various checks and balances are in place to defend the immigration rules should the law be challenged in a court of law. Mosiane said that the FIPSA is currently in legal consultation which will determine their legal steps going forward. He added that more public comment should have been taken into consideration when the draft immigration regulations were gazetted in February, but that not enough time was allowed.
Ronnie Mamoepa spoke on behalf of the Department of Home Affairs and stated that the department has not received any notice of intended court action relating to amendments to the immigration law. “It is a constitutional right to take the matter to court, we are convinced that the new immigration laws adhere to the constitution,” said Mamoepa.