Immigration Act upended by legal chaos


Hidden in South Africa’s immigration system is the secret to its overriding objective: legal chaos, the primary barrier to the entry of foreigners.

The Immigration Act of 2002 first came into operation on April 7 2003, with amendments on July 1 2005, and then on May 26 2014. This is the country’s single piece of immigration legislation and, all told, the Immigration Act — together with its regulations — amounts to 362 pages. The specific requirements for each category of temporary and permanent residence applications are listed in the regulations.

Yet, in reality, there exist 125 laws: one for each of the 124 South African foreign missions where immigration applications are submitted, and one for the department of home affairs.

It takes a little patience to compare the consular websites of South Africa’s 124 foreign missions where immigration applications are submitted. When doing so, you will note that the list of requirements for specific visa categories in South Africa’s Immigration Act and its regulations are almost always divergent from the list posted on foreign missions’ websites.

South Africa’s foreign mission in Paris, for instance, requires that critical skills visa applicants present a contract of employment and their employer’s latest tax returns and company registration documents. This is not the case at the United Kingdom’s foreign mission, nor in South Africa itself. Zimbabwean critical skills visa applicants are routinely required to present their birth certificates, whereas this is not required by other nationalities. Applying for a retired person visa in Milan requires proof of valid medical cover, yet this requirement is categorically reserved for study visas. The South African embassy in Toronto insists that foreign spouses applying for a visa with authorisation to work in South Africa must first have been in possession of a relative visa. This differs from the Immigration Act.

These differences are detectable from mission to mission, and it is only a question of degree as to how significant they are. The consequence is that applications complying definitively with the Immigration Act are rejected for noncompliance with the whims of the consular missions and their staff.

The South African white paper on immigration reform, adopted by the Jacob Zuma Cabinet in 2017, indicates in a footnote on page 35 that only 30 missions out of 124 are serviced by home affairs officials. This effectively means that at most locations where foreigners lodge their applications abroad, the adjudicators on applications contemplated by South Africa’s Immigration Act are either officials from the department of international relations and co-operation — or perhaps even staff that are local to the communities in which those missions exist.

International relations department officials can hardly be regarded as expert in the substance of our immigration legislation. They are not educated in immigration law, they have no grasp of South African immigration policy and no knowledge of jurisprudence on the interpretation of the Act. How, then, can consular officials clueless on our immigration rules be expected to decide which foreigners may obtain work, business or retired person visas?

People applying for business visas at foreign missions, including foreign investors, are therefore forced to deal with employees who have neither knowledge of the Immigration Act nor the inclination to determine complex applications for immigration benefits in terms of the Act.

It is not uncommon for foreigners who make compliant applications to have some manner of adverse information contained on their police clearance certificates. Rarely does this render them “prohibited persons”, nor people who are subject to be declared undesirable, but it does require that they are subject to closer scrutiny in terms of the Immigration Act.

In these and other cases where foreign missions lack adequate knowledge and expertise to address complex cases such as these, applicants are instead exposed to walls of deafening ignorance. They often face adjudicatory authority so arbitrary and subjective that their applications are destined for a road to nowhere.

South Africa’s immigration system must — like all systems — be applied consistently. Instead, we see chaos by design. Those responsible for the management of foreign missions are alive to this secret, because administrative appeals filed as a consequence of a rejection at a mission rarely see the light of day within any reasonable timeframe.

In the old days under Nelson Mandela and Thabo Mbeki, foreign missions such as those in Bern, London, New York, Washington DC, The Hague and Berlin used to be showcases of South Africa’s moral high ground and its hunger for foreign direct investment and talent.

The original thrust of ANC policy in 1994 was to partake in the international competition for investment and global competitiveness. What has happened to this? What can explain the degradation of South Africa’s consular missions into bastions of xenophobia?

Gary Eisenberg is the founding attorney at Eisenberg & Associates

Subscribe to the M&G

These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever.

The Mail & Guardian is a proud news publisher with roots stretching back 35 years, and we’ve survived right from day one thanks to the support of readers who value fiercely independent journalism that is beholden to no-one. To help us continue for another 35 future years with the same proud values, please consider taking out a subscription.

Gary Eisenberg
Gary Eisenberg
Gary Eisenberg is the founding attorney at Eisenberg & Associates

Related stories

‘Before Night Falls’: Reinaldo Arenas breaks down (in) Fidel Castro’s Cuba

Reinaldo Arenas’s memoir reveals the contradiction of a revolutionary society ruled by an autocrat

France will test flying taxis from next year, say operators

A drone-like, fully-electric vertical take-off and landing vehicle (VTOL) dubbed VoloCity, produced by German company Volocopter, was chosen for the innovative trial with flying taxis in a peri-urban area

Municipality won’t remove former mayor, despite home affairs demands

The department is fighting with a small Free State town, which it accuses of continuing to employ an illegal immigrant

Paris throws off mask to party like the virus never was

Social distancing and face masks were largely forgotten as thousands of French people danced and partied well into Monday in the first big blow out since the coronavirus lockdown

Anarchy rules at home affairs

It is unwise to entrust our fingerprints, biographical details and legislative authority to a syndicate of delinquent government officials

Remapping African musics

Itinerant DJ and artist Mo Laudi works hard to ensure the continent’s sounds secure their rightful recognition

Subscribers only

Toxic power struggle hits public works

With infighting and allegations of corruption and poor planning, the department’s top management looks like a scene from ‘Survivor’

Free State branches gun for Ace

Parts of the provincial ANC will target their former premier, Magashule, and the Free State PEC in a rolling mass action campaign

More top stories

Malawi court judges win global prize

Members of the small African country’s judiciary took a stand for democracy to international approval

Durban city manager says NPA erred in his bail conditions

The corruption-fraught metro is coming to grips with having a municipal manager who is on bail for graft, yet has returned to work

Why anti-corruption campaigns are bad for democracy

Such campaigns can draw attention to the widespread presence of the very behaviour they are trying to stamp out — and subconsciously encourage people to view it as appropriate

Tax, wage bill, debt, pandemic: Mboweni’s tightrope budget policy statement

The finance minister has to close the jaws of the hippo and he’s likely to do this by tightening the country’s belt, again.

press releases

Loading latest Press Releases…

The best local and international journalism

handpicked and in your inbox every weekday