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Pandemic set to cause home affairs delays for years to come

The Covid-19 pandemic and provisions of the Disaster Management Act have reduced already-slow home affairs processes to a crawl; impacting thousands of people and creating a backlog that could take years to clear.

The impact of the Covid-19 pandemic is set to further delay and derail home affairs processes, with potentially tens of thousands of people negatively impacted as a result.

While the department of home affairs was mandated to limit services at the onset of the state of disaster in March last year; the department has been slow and inconsistent in resuming services. Currently, only visa-related services are being rendered, with no permanent residence or citizenship-related services being permitted.

After initially issuing badly drafted and confusing directives, the department confirmed in March this year that it had extended the validity of short-term visas to the end of June this year, and the validity of long-term visas to the end of July, which allowed breathing room for those whose visas expired during the national state of disaster.

However, the scene is being set for a massive backlog at the end of June and July, when thousands of people must submit applications for renewal at a time when home affairs processes appear to be slower and more inconsistent than ever before.

Slow and inconsistent processes challenge foreigners

Despite officially not currently processing permanent resident and citizenship related applications, home affairs is in fact processing some permanent residence applications, but with startling inconsistency, and is rejecting more than it approves. Applicants are not able to appeal these negative outcomes since the department is not meant to be rendering these services, which is also going to create a massive backlog once they resume doing so.

It should be noted that the preamble to the Act provides, among other things, that visas and permanent residence permits are to be issued expeditiously and on the basis of simplified procedures and objectives without consuming excessive administrative capacity. The department is not fulfilling its obligations in this regard: random rejections are set to create huge administrative burdens for an already severely understaffed department.

Our office is seeing many visa and permit applications rejected for reasons that should not apply. In the case of temporary visa applications, where it was once very rare for an application to be pending for more than three months, we now have a backlog of approximately five months, while the department states it is currently not dealing with citizenship services, determination of status applications or anything related to them – even enquiries.  This raises questions about how a backlog can be possible when the department offers fewer services than it did before the pandemic.

In addition, the lack of focus on permanent residence raises concerns that efforts may still be ongoing to remove permanent residency as a status category and eliminate the possibility of becoming a citizen by naturalisation, as regulated in the South African Citizenship Amendment Act. There are signs based on the minister’s white paper on international migration in 2017, and a revised immigration bill currently being drafted, that categories of visas and permits currently in existence may be on their way out, placing holders of these visas and permits in a precarious position.

We are also seeing a growing number of rejections of critical skills visa applications, freelance work applications by foreign spouses of South Africans, and work authorisations for foreigners with a retired persons visa. These rejections, often for nonsensical reasons — for example, department staff stating that they could not get hold of an applicant’s employer — strip people of their right to work. Because appeals take so long to process, many applicants risk losing their jobs, adding to the unemployment problem at a time when the government should be accelerating the labour market and helping grow the economy. This situation will result in a flood of applications and appeals when the department resumes full service again.

Hope for South Africans

However, while challenges remain for foreign-born people seeking to live and work in South Africa; there is a glimmer of hope for South African-born people hoping to work abroad and remain South African citizens. Currently, South Africans are frequently stripped of their South African citizenship without warning if they apply for citizenship of another country.

A recent court case launched by the Democratic Alliance (DA) challenges this, arguing that section 6(1)(a) of the Citizenship Act 88 of 1995 is inconsistent with the constitution because certain clauses of the act deprive citizens who have assumed foreign citizenship of their right to vote, hold a South African passport and retain citizenship. The minister of the department of home affairs countered that South Africans could retain their South African citizenship – and thus have dual citizenship – if they complied with the steps laid out in the Act.

The Act states that individuals will automatically lose their citizenship unless they apply for a letter of retention to keep their South African citizenship, and specifically excludes dual citizenship by minors and/or by marriage. As South Africans confronted by job losses and a difficult economic environment increasingly look to other countries for opportunities, they should be able to retain their citizenship while abroad – if they follow the processes. For those who were summarily stripped of citizenship, there is a hope that while judgement in this case was reserved, if the DA should win, they could be permitted to reclaim their citizenship in future.

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Stefanie de Saude Darbandi
Stefanie de Saude Darbandi is the immigration and citizenship law specialist at De Saude Darbandi, a firm that specialises in South African immigration and nationality law

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