Turnaround times: ID, Temporary- & Permanent Residence

http://www.pmg.org.za/node/29273

QUESTION 1105 / NW1227E

DATE OF PUBLICATION: Friday, 01 April 2011

INTERNAL QUESTION PAPER NO 10 of 2011
Ms A T Lovemore (DA) to ask the Minister of Home Affairs:



(1)        With reference to her Department’s 2011/12 to 2013/14 Strategic Plan, why has (a) the turnaround time for issuing permanent residents’ permits increased from 6 month in the 2009/10 financial year to 8 months in the 2010/11 financial year, (b) the turnaround time for issuing temporary residence permits increased from 4 weeks in the 2009/10 financial year to 16 weeks in the 2010/11 financial year and (c) the turnaround time for the second issuing of identity documents increased from 40 days in the 2009/10 financial year to 47 days in the 2010/11 financial year;



(2)        why does the Strategic Plan not indicate any improvement on the 2009/10 turnaround times referred to for the years 2011/12 to 2013/14?



NW1227E



REPLY:



(1)(a)&(b)           In November 2010 the Department undertook a process to completely transform, and stabilise the issuance of permits to foreign nationals. It must, however, be known that we have to take into account security, as well, and not, just, speed.



(1)(c)                 With respect to identity documents, relatively, small fluctuations in turnaround times are to be expected. This is, usually, due to short-term operational challenges, or the introduction of new processes, such as those aimed at strengthening security. The overall trend, regarding turnaround times, over the medium, has been upwards.



(2)                    The Department adjusted the turnaround times in the 2011/12 to 2013/14 Strategic Plan to 8 months for permanent residence permit applications, and 16 weeks for temporary residence permit applications, respectively, as a result of the new centralised adjudication process.



                        Similarly, the turnaround times of identity documents have, also, been adjusted in the Department’s 2011/12 to 2013/14 Strategic Plan, as a result of specialised operational procedures, and security enhanced processes. Therefore, it is due to the current procedures, and in the interest of ensuring maximum quality, and security enhancement.

Backlogs: Update

Home Affairs Update

After having cleared some of its backlog around mid-year, the Department is now back to an average processing time of 4-6 months for temporary residence (with the exception of corporate worker permits, which are “expedited” and processed within 2-3 months), and about 12-18 months for permanent residence.
The occurrence of errors in permits that are being issued remains problematic. Errors range from incorrectly spelt names, wrong employer names being inserted, incorrect categories of permits being used, permit types being confused amongst family members (e.g. the father receives a study permit, whilst the 5-year-old daughter receives a permit to work as the CEO of company XYZ), permits being given incorrect validity periods, etc. The process to rectify these errors regularly takes significantly longer than the original applications (currently 9 months and more).
Earlier this month, the Department’s entire Head Office has (yet again) moved premises and returned to its location in the centre of Pretoria. The move is still on-going and has obviously brought many processes to a standstill and made officials even less accessible.
About one month ago, a policy change seems to have been implemented, in terms of which “section 11(2)” permits (short-term authorisations to work) were to be issued with greater caution and no longer available to certain industries (e.g. models and call centres). This has caused concern amongst some of our clients. Whether this policy change will be made into an official directive from Home Affairs’ Head Office is unclear at this stage. Excluding certain industries altogether from this permit category appears highly questionable from a legal perspective and is likely to be challenged. However, increased problems should be expected over the coming months and professional advice should be sought before applying.

http://www.imcosa.co.za/en/news/160-year-end-immigration-update.html

Permanent Residents, Overstays

QUESTION 2943 / NW3414E

DATE OF PUBLICATION: Friday, 23 September 2011
INTERNAL QUESTION PAPER NO 30 of 2011

Mr G B D Mc Intosh (Cope) to ask the Minister of Home Affairs:



(1) Whether her Department keeps a record of (a) persons who have permanent residence status (b) the nationalities of persons entering and leaving the Republic, (c) persons who do not leave within the time permitted for the visit; if not, why not; if so, (i) how many foreign nationals have not left within the permitted time and (ii) from what countries do they mostly come;



(2) whether her Department conducts surveys or research to form estimates of the
(a) numbers and (b) nationalities of non-citizens who are in the Republic without permission; if not, why not; if so, what are the relevant details;



(3) whether her Department has requested Statistics SA to seek information during the upcoming National Census relating to the nationalities of people occupying accommodation in the Republic; if not, why not; if so, when is it expected that the information will be available to her Department?

NW3414E



REPLY:



(1)(a) Yes. The Department of Home Affairs keeps record of persons who have been granted permanent residence status in the Republic of South Africa (RSA).



(1)(b) Yes. The records of the nationalities of persons entering and leaving the RSA are kept and recorded on the Enhanced Movement Control System (EMCS).



(1)(c)(2)(a)(2)(b) Yes. The records of persons who do not leave within the time permitted for their visit are kept and are recorded as “Over Stayed” in the EMCS. Upon departure from a Port of Entry, the EMCS detects a person who has exceeded the period of his, or her permitted stay, and will, immediately, indicate this to the immigration official processing the departure, and a penalty is raised against a person.



No. The Department has not conducted surveys, or research to form estimates of the numbers, and nationalities of non-citizens, who are in the Republic without permission. The Inspectorate Unit will be conducting an audit of those who have not left, and are listed on the EMCS, as overstayers. This will enable the Unit to form a picture, as to why these individuals have remained in South Africa.



(3) No. The Department has not requested StatisticsSA to seek information, during the upcoming National Census, relating to the nationalities of people occupying accommodation in the Republic.

http://www.pmg.org.za/node/26575

Measuring Tools for compliance and performance

QUESTION 3214 / NW3826E


DATE OF PUBLICATION: Friday, 21 October 2011
INTERNAL QUESTION PAPER NO 33 of 2011


Mrs A T Lovemore (DA) to ask the Minister of Home Affairs:






(1) With reference to her Department’s 2010/11 Annual Report and the references reported therein where compliance could not be measured due to an absence of a measuring tool, why measuring tools were not developed in her Department prior to targets being set;






(2) whether any measuring tools have been developed in each case since the tabling of the report; if not, why not; if so, what are the relevant details of each such tool?






NW3826E


REPLY:






In respect of Asylum Seeker Management:






(1) The National Immigration Information System (NIIS) was developed, and implemented to enable the Department of Home Affairs to manage asylum business data, and information, effectively, and efficiently. Challenges were, however, experienced with regards to the processing of new data, in respect of reporting, and business processes.






(2) As indicated in my Budget Vote speech, the enhancement and integration of the NIIS is vital, and critical to enable the Department to measure performance, in regard to the management of Asylum Seekers.






The Department is, currently, working on optimizing its measuring tools, through the enhancement of the NIIS. Enhancements in the NIIS include:






§ Automated status change within NIIS


§ Track and Trace (Audit trail)


§ Pre-screening, or verification module


§ Registration module


§ Refugee Status Determination module


§ Appeal and Review modules


§ Refugee Identity Documents module


§ Refugee Travel Documents module


§ Data and Report Management module


§ Integration of the NIIS into the National Population Register, the Enhanced Movement Control System, and Case Management Solution of the Department’s Inspectorate






In respect of Permits:






(1) A basic report generating measuring tool in EXCEL was developed, and implemented, in order to report on performance indicators for Visa applications, Temporary and Permanent Residence Permit applications. However, during an audit on the performance in the 2009/10 financial year, the Auditor General rejected the reporting tool, sighting it as unreliable, since evidence could be manipulated.






(2) A Track & Trace reporting tool for Temporary and Permanent Residence Permit applications was already developed in 2009, but, only, rolled out to all Permitting Offices (Large Offices) by June 2010, hence, the reason why an annual report, with reliable Permit statistics, could not be generated, according to the required standard. The new reporting tool called Track and Trace is, now, available within the Permitting environment. It can provide details on the number of applications submitted during a specific period, for specific categories of permits, the nationality of applicants, etc.






A more reliable reporting tool for Visa, Temporary, and Permanent Residence Permit applications submitted abroad, remains a challenge, due to the lack, and reliability of Information Technology systems at some South African Missions abroad. However, the Department of Home Affairs is addressing this situation with the assistance of the Department of International Relations and Cooperation.

http://www.pmg.org.za/node/26575

Prevention and Combating of Trafficking in Persons Bill

Prevention and Combating of Trafficking in Persons Bill: Department of Home Affairs submissions and further deliberations

Created 17 Nov 2011 - 12:53
Meeting Report Information
Date of Meeting:
14 Nov 2011
Chairperson:
Mr L Landers (ANC)
Documents handed out:

Department of Home Affairs Proposals [1]

Children’s Act No 38 of 2005 Chapter 18 [2]
Prevention & Combating of Trafficking In Persons Bill Working Draft [3]
Prevention and Combating of Trafficking in Persons Bill [B7-2010] [4]



Summary:
The Portfolio Committee on Justice and Constitutional Development met with officials from the Department of Home Affairs to discuss provisions on the Prevention and Combating of Trafficking in Persons Bill (the Bill) that were of direct concern. The Department of Home Affairs in its submission proposed that this Bill, taking into consideration the Immigration Act and Refugee Status Act, should have the objective of either re-uniting victims with their families or returning them to their countries of origin. Trafficking suggested that a person was removed unwillingly from his or her own country and Department of Home Affairs was of the view that such persons should be assisted in going back to their own countries and re-united with their families. Where victims were cooperating with law enforcement officials then the Minister of Department of Home Affairs, in terms of Section 31(2)(b) of the Immigration Act, and subject to any terms or conditions, may grant such a victim the right to stay in the country for a specified or unspecified period, without actually granting permanent residence. At the end of this period such a person would be re-united with his or her family and sent back to their country of origin. The rights that the cooperating victim would be entitled to would include the right to education, health care, housing and other rights set out in the Bill of Rights, but not the right to vote. Where a victim refused to cooperate then s/he had to be repatriated. A victim of trafficking should be given a three month visitor’s visa for reflecting and recovering. It was the view of the Department of Home Affairs that there was no need for the Immigration Act or Refugee Act to be amended through the Bill, but that there should instead merely be reference made to Section 31(2)(b) of the Immigration Act.

The Department of Home Affairs proposed that Clause 17 should be deleted, as the exemption mentioned there would be granted in terms of Section 31(2)(b) of the Immigration Act. A Member of the Committee pointed out that if the Department of Home Affairs’ request  was granted then the Sections in the Children’s Act that were copied into Clause 17 would also have to be deleted. Another Member expressed his concern that if Clause 17 was removed then there would be no provision that dealt with child trafficking because the whole of Chapter 18 of the Children’s Act was being repealed in the Prevention and Combating of Trafficking in Persons Bill. The Committee agreed that clause 17(1) should remain, but not clauses 17(2) and 17(3).

The Department of Home Affairs proposed that circumstances when a victim could be issued with a visitor’s visa could be inserted in the Regulations. It was also proposed that the recovery and reflection period must not exceed 90 days. Clause 21(2)(b) should be deleted because of the removal of the ‘letter of recognition’, since this clause referred specifically to persons who were issued with the letter as provided for in Clause 16(10). The Committee outlined its original thinking on Clause 21. The reference to the letter of recognition was deleted because the Committee wanted the 90 day period to commence the moment the letter of recognition was issued. The intention under Clause 21(2)(b) was that where an applicant had submitted false information, or his/her letter of recognition was withdrawn then the 90 day protection would fall away. The Committee wanted to tighten Clause 21(2)(b) so that those who did not qualify for the 90 day protection could not abuse it. A Member asked what would happen if the Department of Home Affairs took too long to issue a visitor’s permit, questioned whether time periods were needed and enquired about the status of the person during the processing of the permit. It was pointed out that it was not desirable for victims of trafficking to be considered to be illegal foreigners as well. Under Clause 21(5) it was agreed that  the words ‘granting of a non-renewable recovery and reflection period’ should be removed and replaced with ‘issued with a visitor’s visa’.

The Department of Home Affairs was of the view that the whole of Clause 23 should be deleted as no permanent residence should be granted to a victim of trafficking. The Committee responded that it had wanted to provide for victims who had testified, and because of that testimony their lives were in danger from the trafficking syndicate in their country of origin. It was agreed that Option 1 and 2 would be considered by the Department of Home Affairs and Justice and Constitutional Development. The Department of Home Affairs proposed, under Clause 31, that everything should remain except for Clause 31(1)(b), instead reference should be made to Section 31(2)(b) of the Immigration Act. Clause 31(1)(b)(iii) should read ‘to facilitate the issuance of travel documents’ as opposed to ‘to issue travel documents’.  The Committee proposed that where it was not safe for a child to be returned to their country of origin after the assessment under Clause 31, then Section 31 of the Immigration Act should apply, and the Director General of the Department of Social Development should make the necessary application to the Minister of Home Affairs. The Committee noted the National Prosecuting Authority’s complaints that the Department of Home Affairs processes took too long, and explained that an expeditious mechanism was needed to keep a person in the country, when his or her testimony was required, that the necessary permits or visas must be issued speedily, and that if that person was no longer needed, the permits could fall away. The Department of Home Affairs further proposed that the word ‘suspected’ should be removed under Clause 33(a)(i), but the Committee noted that this word was used because the clause applied to South Africans who had been trafficked to another country,  whose exact status was not known. It was agreed that that the technical issues in the Schedule would be dealt with after the other provisions, proposal and amendments in the Bill were finalised.

Minutes:
Department of Home Affairs comments on the Prevention and Combating of Trafficking in Persons Bill
Mr Mkuseli Apleni, Director General, Department of Home Affairs, noted that the delegation from the Department of Home Affairs (DHA) had been mandated by the Minister of Home Affairs to attend this meeting.

The DHA believed that the Prevention and Combating of Trafficking in Persons Bill (the Bill) should, in light of the Immigration Act and Refugee Status Act, have the objective of either re-uniting victims of trafficking with their families or returning them to their countries of origin. Trafficking suggested that a person was removed unwillingly from his or her own country and DHA was of the view that such person should be assisted in going back to the home country and reunited with his or her family.  Where victims were cooperating with law enforcement officials then the Minister of Home Affairs could, in terms of Section 31(2)(b) of the Immigration Act, and subject to any terms or conditions, grant such a victim the rights to reside in South Africa for a specified or unspecified period, without granting permanent residence. At the end of this period such a person would be re-united with his or her family and sent back to the country of origin. The rights that the cooperating victim would be entitled to would include the right to education, health care, housing and other rights in the Bill of Rights, except the right to vote. Where a victim refused to cooperate then he or she had to be repatriated. A victim of trafficking who was reflecting and recovering should be given a three month visitor’s visa. Section 32 of the Immigration Act allowed the Minister to grant a foreigner or a category of foreigners the rights of permanent residency for a specified or unspecified term, with certain conditions where special circumstances existed.

It was the view of the DHA that there was no need for the Immigration Act or Refugee Act to be amended via the Prevention and Combating of Trafficking in Persons Bill. The DHA proposed that  instead there should reference to Section 31(2)(b) of the Immigration Act. There had to be cooperation between the various stakeholder departments, including the development of protocols and a Memorandum of Understanding (MOU). There should be guidelines for the granting of temporary residence and return of victims.

Clause-by-Clause Deliberations
Clause 17
Mr Johan Erasmus, Chief Director: Legal Services, DHA, said that Clause 17 should be deleted as the exemption mentioned there would be granted in terms of Section 31(2)(b) of the Immigration Act.

Mr J Jeffery (ANC) said that children were a different category, and were provided for in terms of existing legislation specifically the Children’s Act of 2005. Given that the provisions of the Children’s Act had been in existence of six years, it may not be ideal to abolish them. In any event if DHA were to be granted its request then the sections in the Children’s Act would have to be deleted.

Dr M Oriani-Ambrosini (IFP) said that the difficulty with Clause 17 was that it provided an additional ground for a refugee status. It was not one of the grounds in the Refugee Act and Geneva Convention. The solution that DHA was proposing was difficult, as the exemption that existed in the Immigration Act was very difficult to obtain. A further problem was that it allowed for an assessment that DHA was not equipped to make. He therefore proposed that the provision should remain, but that the Court be asked to grant an order whereby the child was allowed to remain in the Republic, with set terms and conditions, having due consideration to the Immigration Act.

Mr Jeffery said that his reading of the Refugees Act was that it did not apply to trafficked victims in general. It would thus seem that the provisions in the Children’s Act which were the same as those in the Bill were wrong. It was possible to delete clause 17 if section 290 of the Children’s Act remained. 

Dr Oriani-Ambrosini said that he saw a difficulty with the coordination between DHA and the Department of Social Development (DSD), as the latter was not responsible for repatriation and the former was not equipped to make assessments of children, or even adults. A mechanism had to be developed that combined the powers of DHA with the assessment capabilities of the other departments.

Ms D Schäfer (DA) said that Section 31 only dealt with the repatriation of persons, and not the current status of persons who were covered by the Act.

Mr S Swart (ACDP) said that he was concerned that if clause 17 was removed, then there would be no provision that dealt with child trafficking. The whole of Chapter 18 of the Children’s Act was being repealed in this legislation.

The Chairperson asked the delegation from DHA to take note of what had been said by the Members.

Mr Jeffery asked if a child victim of trafficking could make an application under the Refugee Act. He thought that the original clause 17(1) could remain, but reiterated that in this case there may be a problem with the Children’s Act. If a child victim was a witness in a case, then Clause 22 and 23 would apply. He asked if there was a lacuna in the law and if anything had to be done to fill it. There was no argument presented to say that child victims should be provided for, and should be able to stay. Clauses 17(2) and 17(3) did not apply because they were linked to the Refugees Act, which did not cover child victims of trafficking. 

Mr Apleni said that DHA would support the proposal for the retention of Clause 17(1).

Mr Erasmus said that it may well be that any application under clause 17(2) and 17(3) could be refused.

Mr Swart said that he agreed that this was an assisted application that may not succeed. He agreed with Mr Jeffery’s suggestion to delete clauses 17(2) and 17(3).

Clause 21
Mr Erasmus said that the DHA’s suggestion on clause 21 was contained in the document submitted by DHA. It was important to note that in DHA’s submission there was reference to a visitor’s visa in accordance with Section 11(1)(b)(4). The circumstances setting out when a victim could be issued with a visitor’s visa could be inserted in the Regulations. DHA also proposed that the recovery and reflection period must not exceed 90 days. Clause 21(2)(b) should be deleted, because of the removal of the ‘letter of recognition’, as this clause referred specifically to persons who were issued with the letter as provided for in Clause 16(10).

Mr Jeffery said that the reason why the reference to the letter of recognition was deleted was that the Committee wanted the 90 day period to commence immediately the letter of recognition was issued. The intention under Clause 21(2)(b) was that where an applicant had submitted false information, or where his or her letter of recognition was withdrawn,  then the 90 day protection would fall away. The Committee wanted to tighten Clause 21(2)(b) so that those who did not qualify for the 90 day protection could not abuse it.

Mr Swart referred to Clause 21(1) and asked if the word ‘must’ or ‘may’ should be used. The Committee also had to look at protocol and decision making so that the process on the ground may be swift and decisions were issued quickly.

Dr Oriani-Ambrosini said that at times victims would need certain undertakings, such as studying or finding a new job in order to recover, and this would not be possible through a visitor’s visa. A person who had been through so much trauma when trafficked could not be forced to leave and then face more trauma in the rebuilding of his or her life. The Committee had to consider this from a humanitarian perspective.

Mr Jeffery said that the Committee had agreed on the position that foreign victims of trafficking had to leave the country. The only category who would be required to stay would be those victims who were  assisting law enforcement authorities. The issue of victims studying and working was thus not applicable. DHA seemed to want to have provisions inserted in existing categories and not have new provisions introduced. The visitor’s permit was, for the most part, acceptable. The reflection and recovery period was set out for victims to consider whether or not they would assist law enforcement authorities, not other purposes.

Ms Amanda Ledwaba, Director: Law Enforcement,  DHA, said that she agreed with Mr Jeffery, and said that in the majority of cases a victim of trafficking would want to be re-united with his or her family and returned to their country of origin.

Ms Schäfer asked what would happen if the DHA took too long to issue a visitor’s permit. She wondered whether a time period for this should be specified. She asked what the status of the person would be during the processing of the permit.

Mr Erasmus said that if such a person was undocumented then he or she was regarded as an illegal foreigner in terms of the Immigration Act.

Ms Schäfer said that this was not desirable for victims of trafficking, and this issue would have to be addressed.

The Chairperson reiterated that the Committee was worried about the DHA’s delays in processing applications.

Mr Erasmus said that this was an administrative issue, which was usually not catered for in legislation.

Mr Apleni added that this was why the DHA wanted protocols and agreements in place between the various stakeholder departments.

Dr Oriani-Ambrosini said that this was not merely an administrative issue. There was a possibility that a foreign victim may be deported whilst his or her application was being progressed, if he or she did not have the necessary papers to stay in the country.

Mr Jeffery said that the Committee had already discussed this issue and reached consensus on it. With regard to the possible delays in processing from DHA’s side, he suggested that no discretion should remain with the Director General of the DHA and therefore the wording used should be “must”.

Ms Ledwaba said that the current position was that any person who had applied for a permit may not be deported until a decision had been taken and the outcome of the application has been notified.

Ms Schäfer asked if this was set out in legislation.

Ms Ledwaba replied in the affirmative.

The Chairperson asked in which piece of legislation this provision was to be found.

Adv Tsiyetsi Sebelemetja, Director: Drafting and Legal Services, DHA, said that the specific provision would be provided later to the Committee

Mr Apleni said that the discretion of the Director General of DHA should remain. The Bill could then say that a person may not be deported until she or he had been notified of the decision on the application. There may be circumstances where the Director General may have to apply his or her mind to issues.

Mr Jeffery said that the word ‘may’ could be used but then there must be a cross reference to the Immigration Act, so that a person may not be deported until informed of the outcome of their application.

Ms Schäfer said that she was still concerned about the wording. She wondered if the Director General of DHA should have the discretion to refuse, even if law enforcement officials had indicated that they needed a particular victim to remain in the country.

Mr Jeffery said that this was a policy matter and he had some sympathy for the view of the DHA. He thought that “must” was quite proscriptive, and did not cater for unknown circumstances. If the Director General of DHA made a mistake then this could still be challenged. Generally, there was no harm if it was discretionary.

Dr Oriani-Ambrosini said that it would make sense for a letter of recognition to be issued because that letter set out everything that would identify the victim, and it provided an indication of status as well.

Ms Ledwaba said that she did not see how a letter of recognition that was issued by DSD, which did not fall under the Immigration Act, could legalise a person’s stay in the country.

Mr Jeffery said that a letter of recognition did not give a right to stay, but only gave entitlement to certain rights and services. The Committee had been clear on the point that those who were trafficked should be repatriated, and that this Bill should not be used for illegal foreigners to stay in the country. It should be remembered that a letter of recognition was also issued to locals. All this confusion around the letter of recognition meant that perhaps Clause 21(2)(b) should be deleted.

Mr Erasmus asked if the Letter of Intent should be a requirement for the application of a visitor’s visa, and said that if it was not, then the letter of recognition should be done away with.

Mr Jeffery said that the letter of recognition was something in which essentially the DHA had no interest. It gave a victim no rights under the Immigration Act, but merely catered for rights to services.

Adv Sebelemetja agreed with Mr Jeffery. The deletion of Clause 21(2)(b) would not necessarily do away with the letter of recognition, as it was still provided for under Clause 16, which related to DSD and not DHA services.

Ms Lowesa Stuurman, Researcher, South African Law Reform Commission, said that there had to be a distinction made between the situation where a foreigner was a victim of trafficking, and an assessment where a person was found not to have been a victim of trafficking. A victim of trafficking would have to be repatriated, as provided for in Clause 31.

Ms Ledwaba agreed with Ms Stuurman.

Clause 21
Mr Erasmus said that the next submission from DHA was that Clause 21(4) should be deleted.

Mr Swart said that, in relation to Clause 21(4), the question was whether DSD could finalise its investigation within 90 days. There may be a need to extend this period.

The Chairperson said that clause 21(4) essentially covered a request from DSD to the Director General of DHA, for an extension where the investigation was not concluded in the stipulated time, and nothing was automatic.

Mr Erasmus said that in that case a proviso should then be included in Clause 21(1) for the extension.

Adv Sebelemetja informed the Committee that the visitor’s permit could be extended for a further three months, but not beyond six months.

Mr Jeffery said that the wording should be changed from “three months” to “six months” or “a further 90 days”.

Adv Marshal Mokgatle, Deputy Director, National Prosecuting Authority, asked DHA if the time periods should be the same for a victim of trafficking and an illegal foreigner.

Mr Erasmus said that the legislation for DHA provided for a three month renewable period, which would also not extend further than six months. It was not possible to make the pieces of legislation different.

Mr Jeffery referred to Clause 21(2) and Clause 31, and said that he was worried that these clauses provided that two Directors General, heading different departments, would be conducting similar investigations.

Mr Erasmus proposed that, under Clause 21(5), the words ‘granting of a non-renewable recovery and reflection period’ should be removed and replaced with ‘issued with a visitor’s visa’.

Mr Lawrence Bassett, Chief Director: Legislative Policy, Department of Justice and Constitutional Development, agreed that this would make sense.

Mr Bassett also noted that at the last meeting the drafters were requested to delete clause 21(5)(a), and asked if perhaps DHA wanted to add something on this.

Ms Stuurman suggested that clause 21(5)(a) should be retained, so that it would not be used by law enforcement officials as a bargaining tool to force victims to assist in investigations

Mr Erasmus agreed that it could remain.

Clause 23
Mr Erasmus said that DHA was of the view that the whole clause should be deleted, as no permanent residence should be granted to a victim of trafficking.

Mr Jeffery said that the Committee wanted to provide for victims who had testified and, because of that testimony, their lives would be threatened by the trafficking syndicates in their country of origin. The new Clause 23 provided that the National Director of Public Prosecutions (NDPP) may apply to DHA, on behalf of such a person.

The Chairperson pointed out that ‘may’ was used and therefore this was discretionary.

Mr Apleni said that he would not like to be obstructive, but felt obliged to point out that the DHA was in the process of de-linking the issuing permanent residence from the number of years that a person had been lawfully living in the country. DHA wanted to have a discretion to question why a person was needed in the country, despite what they were doing here, and to ascertain what benefit would accrue to the country by having such a person. If victims wanted to apply in terms of Section 31(2)(b) of the Immigration Act, then there was no problem.

Mr Jeffery explained that clause 23 would be deleted and the Committee was only considering Option 1 and 2 on the next page.

Mr Erasmus said that DHA would then consider the options, together with the drafters, and come back to the Committee on this point.

Clause 27
Mr Erasmus said that the words ‘and the visitor’s visa contemplated in Section 21(1)’ should be inserted after the word ‘recognition’.

Clause 31
Mr Erasmus proposed that everything should remain in this Clause, except for Clause 31(1)(b), where instead there would be a reference to Section 31(2)(b) of the Immigration Act. Clause 31(1)(b)(iii) should be reworded to read: ‘to facilitate the issuance of travel documents’, as opposed to using ‘to issue travel documents’. 

Adv Sebelemetja said that DHA would facilitate where all factors had been considered and it was safe for the child to be returned to his or her country of their country of origin.

Dr Oriani-Ambrosini said that the Committee and the departments may not have properly considered the conditions that victims faced. Some child victims of a very young age were trafficked and forced into prostitution. In such circumstances the discretionary power of the Minister was not ideal, especially given the DHA’s history on performance. A clear process where social workers and DSD were involved should be provided for in the Bill.

Mr Apleni said that DHA would facilitate the issuing of travel documentation, based on the assessment by the Director General of DSD, since assessments had nothing to do with DHA.

Mr Jeffery said that where it was not safe for a child to be returned to his or her country of origin, after the assessment under this clause, then Section 31 of the Immigration Act should apply and there should be an application made by the Director General of DSD to the Minister of DHA.

Mr Swart said that he agreed with this proposal. He suggested that the drafters consult on the best wording.

Mr Bassett asked if the suggestion was that clause 31(1) in the Bill should be linked with Section 31(2)(b) of the Immigration Act.

Mr Jeffery confirmed that this was correct.

Mr Erasmus said that DHA would work with the Department of Justice drafters, to draft the necessary wording.

Mr Jeffery referred to Section 31(2)(b) of the Immigration Act and said that the National Prosecuting Authority (NPA) had complained that the process took too long, from the side of DHA.

Ms Ledwaba replied that this was an administrative problem, and the NPA should explain where the requests were being delivered. She pointed out that she had received requests herself, although they should have been delivered to the Minister of Home Affairs. The proposed Memorandum of Understanding and protocol arrangements should correct this problem.

Mr Jeffery said that if this was an administrative issue, it should be the responsibility of the Director General, not the Minister, who was the political head. The Director General should, in addition, have the power as the process would be speedier.

Mr Erasmus said that delegation by the Minister to the Director General was provided for in legislation.

Mr Apleni added that DHA was in the process of making many changes to try to speed up processes. The DHA was included in this Bill. If law enforcement officials needed someone to be in the country to assist in an investigation, then this must be fast tracked.

Ms Kamogele Lekubu-Wilderson, Director: Victim Support and Specialised Court Services, Department of Justice and Constitutional Development, suggested that instead of protocols there could be provisions inserted in the Regulations for the fast tracking of applications from the NPA and South African Police Services (SAPS).

Mr Jeffery said that he was not convinced by DHA’s arguments. He thought that the Committee must ensure that it provided for an expeditious process in the primary legislation and not in the Regulations, protocols or MOUs. He asked that DHA should look further at the possibilities.

Mr Apleni agreed that DHA would reflect further on the matter.

Mr Swart said that if the main concern with Clause 31(2)(b) was with the delays and if the Committee was attempting to resolve this through visitor’s permits, he was worried that certain rights may be taken away from the victims. If the NPA was having problems with delays, in relation to the issues covered in clause 31(2)(b), then it was likely that the issuing of visitor’s permits might also be delayed. The Committee had to address the issue of delays, and this could perhaps be done in the Regulations. It was an administrative issue.

Mr Erasmus referred to Section 11(1)(b)(iv) of the Immigration Act, and said that this provided for a person to stay for three years. The DHA could not go beyond this period, and this was where the Section 31(2)(b) exemption was applicable. If a case went beyond three years then this would be a problem. That was the reason why the DHA preferred the exemption.

Mr Jeffery said that the Committee wanted an expeditious mechanism that would enable South African Police Services (SAPS) and the NPA to keep a person in the country if he or she was needed for the investigation or prosecution. The Committee also needed an expeditious mechanism for the issuing of the necessary permits or visas.  The Committee further wanted to ensure that when that person was no longer needed, his or her ability to stay would fall away.

Mr Erasmus noted all these points.

Clause 33
Mr Erasmus said that the DHA proposed that the word ‘suspected’ should be removed from Clause 33(a)(i).

Mr Jeffery said that the clause was in relation to South Africans who have been trafficked to another country and the word ‘suspected’ was used because it would not be clear whether they were victims or not. The requirements were set out in the Palermo Protocol.

Ms Stuurman said that she was concerned that a foreign country would repatriate a South African citizen, based on that country’s own processes, which may not be adequate for declaring that a person was indeed trafficked. If the word “suspected” was deleted, then by default that would mean that a person was a victim, despite any flaws in the assessment process. Such a person would also have access to benefits that were in fact meant for real victims of trafficking.

Mr Erasmus proposed the insertion of ‘parents or legal guardian’ instead of ‘child protection organisation’ under Clause 33(a)(iii).

Mr Jeffery said that the reason for the use of ‘child protection organisation’ was that parents may be involved in the trafficking themselves.

Clause 44(5)
Mr Erasmus said that Clause 44(5)(a)(i) and (ii) should be deleted as there was no need to publish directives, and this would be costly.

Mr Jeffery said that the provision was included because the public had to have access, and there was a lot of public interest in the Bill.

Adv Sebelemetja said that the DHA’s Directives were accessible if requested. Publication in the Gazette would cost R1 000 per page.

The Chairperson said that in this case they should at least be published on the DHA website.

Adv Sebelemetja agreed.

Schedule 1
Mr Bassett said that the technical issues in the Schedule would be dealt with after the other provisions, proposal and amendments in the Bill were finalised.

The Committee agreed that this would be acceptable.

The meeting was adjourned.

·         Justice and Constitutional Development
Copyright © Parliamentary Monitoring Group, South Africa

Source URL: http://www.pmg.org.za/node/29758
Links:
[1] http://www.pmg.org.za/files/docs/111115dhasubmissions_0.pdf
[2] http://www.pmg.org.za/files/docs/111115childrenact.pdf
[3] http://www.pmg.org.za/../../../../../../files/docs/111102workingdraft.doc
[4] http://www.pmg.org.za/../../../../../../files/bills/100316b7-10.pdf


From:

http://www.pmg.org.za/report/20111115-deliberations-prevention-and-combating-trafficking-persons-bill

Permanent Residency to become Discretionary?

Mr Apleni said that he would not like to be obstructive, but felt obliged to point out that the DHA was in the process of de-linking the issuing permanent residence from the number of years that a person had been lawfully living in the country. DHA wanted to have a discretion to question why a person was needed in the country, despite what they were doing here, and to ascertain what benefit would accrue to the country by having such a person. If (human trafficking) victims wanted to apply in terms of Section 31(2)(b) of the Immigration Act, then there was no problem.

http://www.pmg.org.za/report/20111115-deliberations-prevention-and-combating-trafficking-persons-bill

Residence Permit System in Chaos

SA residence permit system 'in chaos'

By: Amanda Visser2011-05-22 13:19
Pretoria - The department of home affairs' residence permit system is in total disarray.

That is the principal reason for an urgent application lodged against the department, its minister and its director general in the Western Cape High Court.

The application has been submitted by a Cape firm of attorneys, Eisenberg & Associates, two individuals and another immigration company, Visa One.

Gary Eisenberg from the firm of attorneys said the application was being submitted on behalf of 108 applicants who had all been waiting for longer than six months for their permanent residence permits to be processed.

In the court papers he said that applications had previously always been handled within six months. Now they simply disappeared or were never heard of again.

In February this year Eisenberg had also turned to the court because of delays with temporary residence permits.

That action had been instituted after it had come to light that 70% of more than 400 applications for temporary permits had vanished.

In a sworn statement Eisenberg said that the department appeared to be either unwilling or unable to do anything to trace the applications.

Some of the applications had been submitted five years ago. That was, he said, with respect, a travesty of justice and an embarrassment for South Africa.

In the court documents Eisenberg said that the struggle with permanent residence permits had been characterised by a total lack of support or even simple interest.

The court documents state that, from July 2010 to the present, innumerable email messages and other correspondence, as well as several telephone messages, had failed to elicit any reaction.

A total of 108 outstanding applications for permanent residence made up the court application.

The two individuals who have joined the court application are Yung-Li Yen from Taiwan and Fokelina Wijngaarden from Holland.

Yen is a fisherman who first came to South Africa in 1974. In October 1992 he married his South African bride, Narriman, from Cape Town.

The first of their three daughters was born in 1986. In 2007 he applied for his permanent residence permit after being advised by department staff to do so.

Wijngaarden and her life partner, Jan Koornneef, had opted for retirement in South Africa. Koornneef’s application (which was basically the same as hers) was processed six months after submission, but Wijngaarden has been waiting for two years.

The court papers ask the court to set a deadline for the processing of the outstanding applications.

The applicants claim an application unprocessed after six months is “unreasonably overdue”.

Eisenberg and the other applicants have asked for their application to be heard on June 28.

Leon Isaacson, chairperson of the Forum for Immigration Practitioners (Fipsa), told Sake24 that there had been a definite increase in overdue applications.

- Sake24

http://m.news24.com/fin24/Economy/SA-residence-permit-system-in-chaos-20110522

Immigration Laws: Changes

IMCOSA Newsletter
Immigration Laws: Changes


Change in South Africa Immigration Laws One Step Further - 09 September 2011

The much-debated and –criticized amendments to the immigration laws are now one step closer to coming into effect. The Immigration Amendment Act, No 13 of 2011, was published on Friday, 26 August 2011 and is now law.

A number of points remain a major concern, including:


· Removal of section 46, which provides that advocates, attorneys and registered Immigration Practitioners may represent applicants before the Department of Home Affairs. The concern is that the removal of section 46 will lead to the legitimization of corrupt and unethical "consultants", taking away from foreigners the tool to differentiate bone fide practitioners from illegitimate ones, putting them at risk of being exploited and defrauded.


· Application in person: The proposed section will require all applications to be submitted in person, where applications can currently be lodged via courier or through attorneys, advocates and immigration practitioners or their staff. It is a common occurrence for counter staff at offices of Home Affairs and at foreign missions to give poor or incomplete advice. Furthermore, there are language and cultural hurdles to be overcome. Immigration Practitioners have been shouldering the negative and tedious parts of the immigration process for their clients in order to ensure that the latter's experience of moving to South Africa is a positive one, and we are now working on the various means of ensuring that the immigration process into South Africa remains as smooth and efficient as possible also under new legislation.


· Effective abolishment of exceptional skills permit and replacement of quota by the critical skills permit: South Africa will be losing an important tool to attract highly valuable individuals, we are however investigating best possible alternatives in general and on a case-to-case basis.


In terms of section 27 of the Amendment Act, this piece of legislation will come into effect on the day to be determined by the president and published in the government gazette. It is to be assumed that this will only be once the Immigration Regulations, which provide the detail of the law (including specific requirements and procedures) have been finalised. No draft of such Regulations has yet been made public, and rumour has it that not much work has been done on this up to now.


It may therefore take anything from two weeks to two years until the law becomes effective (the last amendments of 2005 have still not) and IMCOSA will keep you updated on the progress.






http://imcosa.co.za/en/news/149-immigration-laws-changes.html

More backlogs? 400 contract workers not reinstated

Lapsing of contracts: DG wants answers

July 6 2011 at 08:43am
By Mogomotsi Magom and Ntando Makhubu

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INDEPENDENT NEWSPAPERS

Director-general of Home Affairs Mkuseli Apleni addresses the media about the administration of the department. Picture: Sizwe Ndingane

Senior managers at the Department of Home Affairs’ Pretoria offices will have to explain why they let contract workers continue performing their duties when their contracts had ended.

It has come to light that about 400 contract workers whose contracts expired last Thursday were allowed to continue working last Friday and on Monday after their contracts had expired.

Some claimed they had been asked to carry on working as their contracts would be extended, as they had been in March.

The workers, mostly based at the department’s Watloo offices, said they were stopped from working only on Tuesdday and told to leave the premises when they reported for duty.

Home Affairs director-general Mkuseli Apleni said if it was proven that workers were allowed to work while out of contract, the senior managers responsible would have to explain how this happened.

“If it is true, that means some managers did not comply with the contracts the department had signed with the contract workers.

“The contracts clearly state that June 30 was their last day in the service of the department and they were not supposed to work beyond that,” Apleni said.

The workers claimed to have been unfairly dismissed by the department, and said they should have been given sufficient notice before their contracts were terminated.

Requesting anonymity for fear of victimisation, they explained that when their contracts came to an end at the end of last month, they were asked to continue working because there was still a big workload.

One said: “They promised us three-month contracts to last until the projected end of the project in September, but they also said we should expect an extension after that - until December, because of the huge workload.”

On Friday and Monday they went about their normal duties, which included processing applications for Zimbabwean nationals who wished to live and work in South Africa, but when they arrived at work on Tuesday, they said, they were told to stop working and to leave immediately, because they no longer had contracts with the department.

“We were told to hand in state equipment and to take all our belongings, or risk being thrown out by security (guards) if we did not leave.”

They said the workload consisted of more than 147 000 untouched files which were waiting for outstanding requirements like fingerprints, letters from employers and passports, and an additional pile of completed files waiting for approval.

“We should have been given a month’s notice, because we have families to support, bills and installments to pay – what will we do now?” another asked.

Apleni said the department had advertised a total of 558 posts and had received more than 143 000 applications for the positions.

Only 104 contract workers were retained for the permanent positions, and more contract workers would be released from the department leading up to the July 31 deadline for processing applications by Zimbabweans wishing to stay and work in South Africa. - Pretoria News

http://www.iol.co.za/news/politics/lapsing-of-contracts-dg-wants-answers-1.1094094

Divorce, the Foreign Spouse and Home Affairs

The expat’s right of residence in SA, based on the spousal relationship, is a very delicate creature. In terms of Home Affairs’ practice, as soon as the relationship ends, the temporary residence permit is deemed to end

Source: Chris Watters, Bedfordview

Those amongst us who studied Latin may recall the story that, many years ago, a young Trojan warned the elders of his community to be cautious about people who left gifts strewn around deserted Mediterranean beaches. Foreign nationals who are the spouses of South African citizens [or persons who have permanent residence] would do well to be guided by such advice. It’s not that Mediterranean nationals are to be avoided in spousal relationships but that the estranged South African spouse could well be bringing news that is every bit as tragic as the Trojan Horse turned out to be for some people in Troy.

In terms of the Immigration Act, the spouse of a SA citizen (which term includes a person who has obtained permanent residence in South Africa) qualifies to be granted temporary residence - and more particularly for a temporary relative’s permit. This category of temporary residence permits is usually issued for a year at a time and are subject to the spousal relationship surviving. If the foreign spouse wishes to be employed, the usual requirements for such authorisation - such as that the post has been duly advertised - fall away.

For purposes of the Immigration Act, the term “spouse” includes anyone who is in a bona fide, permanent, cohabitive relationship that is monogamous. To be a qualifying “spouse,” the expat does not need to be married to the SA partner. 

The only benefit or advantage that exists in being formally married - again, for purposes of the Immigration Act - is that it will often be easier to satisfy the Department of Home Affairs that such spousal relationship does in fact exist.

And if/when the relationship or marriage is five years old or more, the expat spouse also qualifies to apply for permanent residence. If permanent residence is granted, that status is granted on condition that the relationship must survive a further three years.

On the face of it, one can see why then some people, who want to settle in SA, will resort to all manner of devices to secure a spousal relationship.  

But the expat’s right of residence in SA, based on the spousal relationship, is a very delicate creature. In terms of Home Affairs’ practice, as soon as the relationship ends, the permit is deemed to end. And so it happens, not infrequently, that one of the first things the SA spouse will do once either party has walked out, is she or he will phone Home Affairs to report that the relationship has ended and to seek their support to have the expat spouse removed from South Africa. The Department’s officials tend to react to such advisories with alacrity which can lead to the expat spouse first being detained pending their deportation.

In the case of married couples, the fact that the marriage persists (for now) may be irrelevant. What matters is whether the couple are still living together in a bona fide relationship. So all too often, the expat can become liable to arrest, detention and eventual removal, according to the Department, long before the marriage is formally ended by divorce. 

A very sensitive problem that has not been addressed by the Immigration Act [and has not yet been considered by the courts] is what happens if the separation has been forced by an abusive SA spouse. This could leave the abused expat spouse facing the tragic dichotomy of either being removed from the country or being forced to return to the situation of abuse. And that vulnerability could as easily extend to the expat spouse fears attending custody or maintenance hearings to avoid arrest and detention by Home Affairs’ officials some of whom see it as their duty to support the SA spouse, right or wrong.    In one matter, the previous Minister of Home Affairs admitted that she saw this as her duty even though, in that matter, it was the expat spouse who ended up needing a protection order.   And it has also been argued in custody battles that the expat spouse should not get custody precisely because they are either vulnerable to removal and/or they no longer have a right of residence.

A further challenge for the Immigration Act arises when the couple disagree on whether the relationship has in fact ended irrespective of whether the couple are married or not. What is the status of the relationship, for purposes of immigration enforcement, if one of the parties sees the separation as being a trial separation or he or she is committed to trying to save the marriage through counselling or trying to mend the relationship themselves. In practice, officials of the Department of Home Affairs tend to react to the perspective or assessment of the SA spouse. As a long line of authority has held or implied that deportation requires that an official must take a decision to deport - which implies that there be some form of hearing to deport a person - the same ‘limitation’ applies to any decision to detain the expat spouse pending such deportation. 

The Immigration Act is however clear on one thing: in this context Home Affairs may only detain a person to establish either who he or she is and/or their residence status [which is limited to a 48-hour period], or in order to deport the expat who has no right to remain in the country.  

The Department does not have the authority to detain a person solely because he or she is in the country without a valid permit.   In addition, in Ulde v Minister of Home Affairs 2009(4) SA 522 (SCA) the SCA held, at paragraph [7], that the Department’s power to detain must be exercised “in favorem libertate.”

Another challenge for the Immigration Act and for estranged expat spouses, is what happens if children are involved - particularly if the child is a SA citizen. The child has a constitutional right to family life and to parental care - irrespective of its nationality. Whilst one would expect that the Department should be slow to remove the expat spouse [unless that was in the best interests of the child], there is the threat of removal that unfairly impacts on the expat spouse. 

The Immigration Act does not have a category of temporary residence permit that directly permits the expat spouse to be in the Republic to “accompany” his or her child or children. The closest the Act comes to achieving this is the relative’s permit. But this category of temporary residence permit is issued to “a foreigner who is a member of the immediate family of a citizen.”  It has been argued that it is straining the language of the Act considerably to hold that the child’s mother is a member of the child’s family. 

In addition, the Regulations to the Act require that to qualify for a relative’s permit, the SAC has to have disposable income of not less than R5000,00 per month to support the foreign relative! Whereas such prescribed requirements can be waived by the Department’s Head Office [which waivers rarely take less than six weeks to get, if approved] if there is “good cause”, section 18(2) of the Act says that “the holder of a relative’s permit may not conduct work.”  This requirement cannot be waived by the Department. This means that the expat spouse would be unable to provide for him- or herself and their dependants which must surely be unconstitutional.

This is not to say that the expat spouse is without remedies as he or she moves through the dissolution of a spousal relationship. There are protections but these are largely to be found rather in the Bill of Rights than in the Immigration Act - which Act badly needs to be amended in this regard. Perhaps the promised national debate on morality will also address the needs of the vulnerable expat spouse such that they can be protected against their Trojan Horses.

http://www.roylaw.co.za/home/article/divorce-the-foreign-spouse-and-home-affairs/pageid/immigration-law

Home Affairs and its backlogs – More of the Emperors' clothes?

****If you are having problems that are not being adequately addressed, phone the Home Affairs DG on his cellphone.  Read more here.****

Article by Chris Watters
George Eliot is accredited with posing the question: ‘What do we live for, if it is not to make life less difficult to each other.’ It appears that someone at Home Affairs missed the ‘George Eliot Day’ during their studies.

Amidst considerable fanfare it was announced very recently that the backlog for permit applications had been cleared, a story that the media carried repeatedly, to the considerable delight of many a frustrated expat waiting for his or permit. When more than one attorney subsequently pointed out to the Department that this was not exactly correct, officials directed their attention, ironically, to the ‘small print’ of the full media release.

And there buried in the detail was the advisory that people should not start hassling the Department for their permits before 20 April, to allow the Department time to get the permits from Pretoria to Johannesburg and for administrative matters to be attended to. Quite aside from what is it that takes three weeks to get done once the application has been adjudicated, and how long it takes a courier to get from Pretoria to Johannesburg even in rush hour traffic, surely Home Affairs could have timed their announcement better or even just corrected those apparently misleading media reports?

But that small print tells a very different story. Firstly, as far as the client base is concerned, the backlog has not been cleared. It makes no difference to the customer that his or her permit has been “adjudicated” somewhere in Pretoria if it is not in his or her passport. And secondly, advising people not to contact the call centre before then implies that there will in fact be applications that will not have been finalised by that date.

That expectations are going to be frustrated is in fact inevitable. The story is told, for example, that during March, Head Office officials descended on the Johannesburg Regional Office and collected many applications that had been lying there without being sent on to Pretoria. These were removed without allocating ‘track and trace’ numbers to the individual files. As a result attorneys cannot track their clients’ applications. And attorneys active in the field report that they are still being called and told to send duplicates of their applications because the paperwork has been lost by the Department. In one matter where the attorney was trying to track his client’s file, there was an exchange with the call centre that could have been scripted by Franz Kafka. Head Office had already twice asked for a copy of the application to be faxed through to them, which had been done. Then whilst trying to track its further progress, the attorney was told that Johannesburg had not however recorded that the file had left Johannesburg and, until Johannesburg did so, the file was not in Pretoria even if it was in Pretoria and the call centre would not answer questions about the application until that happened!

But there is another side, and very cynical component, to this so-called purging of the backlog. Under pressure to clear the backlog, attorneys are reporting that little short of shocking and irrational decisions are being taken with applications being refused for farcical and arbitrary reasons. That way, even if the application then has to return to the Department by way of an appeal, it is no longer part of the backlog.

The same thing happened several years ago when there was a huge backlog in permanent residence applications and also when there was a back-up in refugee applications. This is not clearing the backlog. It merely creates a new one and people are still kept waiting much to the increasing frustration of the customer and other interested parties such as employers.

It’s possibly too much to hope that the Minister or the Director General reads George Eliot during their spare time.

As a footnote, it was noteworthy that the Department of Home Affairs was not asked to comment on the arrival of Radovan Krejcir’s mother at OR Tambo last week. According to media reports, an ‘anonymous’ security official claimed that airport officials had been “duped” by Mrs Krejcirova having had the gall to arrive on her own passport and without a disguise (presumably her Klingon costume was at the drycleaners). In doing so it was claimed that security officials, with all their training for and experience of the soccer world cup etc, had apparently been sold a dummy – perhaps one of the oldest tricks in the book, whether its chess pieces, football players or contraband you are moving! Personally, I think someone forgot to take his anti-paranaoia medication last week.
http://www.polity.org.za/print-version/home-affairs-and-its-backlogs-more-of-the-emperors-clothes-2011-04-11

SA issues over 65 000 work permits

Compiled by the Government Communication and Information System
Date: 16 Aug 2011
Title: SA issues over 65 000 work permits

Cape Town - The Department of Home Affairs' issuing of works permits to Zimbabwean nationals, under its recent Zimbabwe Dispensation Project, has inflated the number of work permits issued by the department to foreigners, with over 65 000 issued in the first quarter of this fiscal year.

Briefing a joint meeting for the National Assembly's labour and home affairs portfolio committees, the Department of Home Affairs Deputy Director-General of Immigration, Jackie McKay, said 59 363 of the permits issued between April and June this year were part of the department's Zimbabwe Dispensation Project, which came to an end last month.

In the last financial year, 135 000 work permits were issued to foreign nationals.

The remainder of permits issued during this time were: 672 corporate work permits, 699 exceptional skills permits, 3 202 general work permits, 1 252 permits that fall under the quota system and 1 719 work permits in terms of the provisions of Section 19 (5) of the Immigration Act (which provides for intra-company transfers).

McKay said the challenge his department faced with low-skilled work seekers was that many were opportunists that applied for asylum-seeker permits, as it didn't cost anything and allowed one to work in the country legally.

However, he said the department is looking at overhauling the entire asylum-seeker process and had appointed more members to the department's standing committee on refugees to ensure that work in this area went ahead.

He was quick to point out that the UN High Commissioner for Refugees regularly commended the country for its good treatment of refugees.

In answer to DA member Ian Ollis, on why so many work permits were issued to low-skilled workers rather than to those that were highly skilled, McKay said a study needed to be undertaken on migration trends to better understand the kind of foreign work seekers entering South Africa.

McKay said most unskilled work seekers came to South Africa through Mozambique and Zimbabwe - often arriving in neighbouring countries before crossing South Africa's porous borders.

McKay referred all questions that MPs had on the country's porous borders to the Department of Defence, which oversees border security.

According to figures from the Africa Centre for Migration and Society's Forced Migration Studies Programme, there are about 1.6 million to two million foreigners (3-4% percent of the population) living in South Africa, with about 1 million to 1.5 million of these being Zimbabweans.

McKay also pointed out that the Department of Home Affairs' lack of integration of systems often meant that individuals could be resident in different regimes within the department's databases, sometimes under different names enjoying multiple benefits under assumed identities.

He attributed this to the fact that the department didn't take biometric information from foreign work seekers and it only did so for those seeking asylum.

But he questioned whether making finger-printing of foreign workers mandatory would be a good idea, as it could make South Africa a less favourable destination for foreign workers, he said.

Turning to the amendments to the Immigration Act, MacKay said these are largely aimed at revising provisions relating to visas for temporary stays; introduction of permits for low-skilled and unskilled immigrants; revising provisions relating to permanent residence and to allow for advanced processing of travellers as was undertaken during last World Cup.

The amendment calls for temporary residence permits to in the future be referred to as "visas", but that the term "permanent residence permits" would remain.

"The reason for this is that the word permit is interpreted generally - even by our courts - as denoting 'long-term' stay in South Africa, where as the word 'visa' internationally denotes that you visit the country for a temporary, or short period only," he said.

The amendment also calls for a new permit, called the critical skills permit, to replace the existing exceptional skills and quota work permits. The department would then be required to publish a list of critical skills that the department needs.

He said the department is drafting an immigration review policy and would be holding consultations with other departments and hold public hearings.

It is hoped that these discussions would lead to further amendments of the Immigration Act, he said.

The Department of Labour's Deputy Director-General of Public Employment Services,
Sam Morotoba, said the country's labour laws don't discriminate against any migrant workers, but pointed out that the country didn't have regulations addressing specifically migrants.

Morotoba said the department had received legal advice that at present, companies could still easily challenge the department in court over the legality of a permit.

He said Section 9 of the proposed Employment Services Bill - which is presently at Nedlac - would provide a better legal basis for the department on addressing migrants.

The bill proposes that employers must first advertise a position locally and consider those applicants that the department has provided them for through the Employment Services Portal (which the bill has mooted) and then back this up with the relevant evidence presented to the department, if they wish to take on foreign workers.

Meanwhile, a study by Parliament's research unit, made available to committee members today, pointed out that a number of studies showed the benefits of labour migration - with one study revealing that in 1990, more than a third of engineers and other IT professionals living in the US were born elsewhere. - BuaNews
http://www.buanews.gov.za/news/11/11081615051002

Complaint statistics to Home Affairs call centre

****if you have problems that are not being adequately address, contact the Home Affairs DG on his cell.  Read more here. ****

 

Home Affairs: Is the turnaround strategy working?

Annette Lovemore, Shadow Minister of Home Affairs
14 August 2011

In 2008, the Department of Home Affairs introduced a turnaround strategy to remedy the numerous problems that characterise its service delivery. The Department utilised 142 consultants to effect this strategy, at a cost of R899.2 million. The Democratic Alliance (DA) has been informed, unofficially, that the total cost of the strategy has been in the region of R3.2 billion.

In some instances, the turnaround strategy has proved to be relatively successful. However, the DA is concerned that dysfunctionality is still prevalent. The Public Service Commission recently presented its research into service delivery by the Department to the Portfolio Committee on Home Affairs. The Commission found that the number of clients who felt that they experienced no problems with Home Affairs’ service has substantially decreased (from 78.1% in 2006/07 to 57.1% in 2009/10).

Of the 42.9% of clients who experienced problems, only 12.5 % lodged complaints. (The majority felt that it was not worthwhile to complain, or did not know how to lodge a complaint.)

The Department’s Customer Service Centre (CSC) received 1 074 528 calls between April and November 2009 (the last period for which accurate statistics are available). If this represents the full 12.5% of those who experienced problems, the implication is that approximately 11.4 million people experienced service delivery problems during 2009.

If the Public Service Commission’s research is accurate, and the level of satisfaction has dropped, the current figure is likely to be even higher than this.

The DA is concerned, not only about the apparent decline in satisfaction with service delivery, but about the increase in particular problems being dealt with by the CSC.

The following information, with respect to the nature of calls fielded by the CSC staff, was supplied in a reply received this week to a question posed by the DA to the Minister:


                                                                   2008/09            2009/10             2010/11

Identity Documents: Duplication               9 056                32 377               35 091

Birth Certificates Application Status         31 461               81 590              10 5417

Death Certificates Application Status        2 217                6 637                8 920

Marriage Certificates Application Status    6 108               15 924               17 638

Rectification: Personal Details                    18                    631                   4 479

Work Permits                                              4                    167                    20 868



These numbers are alarming, and deserving of serious attention by the Minister.

The Home Affairs Portfolio Committee will be interacting closely with the Department and its provincial management teams regarding their performance in the upcoming parliamentary sessions, and the DA will utilise these opportunities to interrogate the efficacy of the turnaround strategy, and whether its high cost is justified. With the information currently available, it does not appear as if South Africans have received a return on the investment of public funds in the Department of Home Affairs.

http://da.org.za/newsroom.htm?action=view-news-item&id=9663

Home Affairs clears backlog

Permanent residency: 4 601 approved, 1 943 rejected.  30% rejection rate
Temporary residency: 64 589 approved,  5 627 rejected. 8% rejection rate.
Total rejections = 7570
3302 "special cases" probably refers to appeals because the department's numbers of rejections and approvals equals the total number of applications.   Therefore 44% (almost half) of the total rejections are being appealed - and will probably be appealed successfully as the department is known for rejecting applications for reasons that are not in line with the immigration act.   The numbers also indicate that the adjudication in the permanent residency section is not being done properly if there is such a high rejection rate.



Compiled by the Government Communication and Information System
Date: 30 Mar 2011
Title: Home Affairs clears permit backlog
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Pretoria - The Department of Home Affairs has cleared the backlog in permits for foreign nationals who had applied for permanent and temporary residency in South Africa.

Home Affairs Director-General Mkuseli Apleni said measures taken to eliminate the backlog that had developed over the past couple of years had been successful, and the time frame by which the department had committed itself to clear the backlog - the end of the current financial year, 31 March - had been met.

"Applications received up until the end of January 2011 have therefore been adjudicated and permits have been dispatched to the various regional offices. Applications made in February and March this year are currently being processed, the outcomes of which will be communicated to applicants in due course," he said.

In its efforts to address the backlog, the department centralised the process of adjudicating permits. The adjudication is now done at a central hub in Pretoria instead of regional offices.

Additional human resources and IT capacity, as well as the use of effective and efficient project and operations management methods also contributed to resolving the backlog, he said.

"It was necessary to centralise the adjudication of permits so that the department could assume full control of the process while increasing its efficiency, effectiveness and accountability. The possibility for bribery and corruption in the process has therefore been significantly reduced," Apleni explained.

After the applications from the regional offices were consolidated, the permit backlog stood at 56 302.

This included the backlog that had accumulated before November 2010. New applications received up to the end of January 2011 stood at 23 751, putting the total number of applications received at 80 053.

Breaking down the figures further, Apleni said the department adjudicated 6 535 permanent residence permits from foreign nationals, of which 4 601 were approved and 1 934 rejected.

With regards to temporary residence permits, 70 216 permits were adjudicated with 64 589 approved and 5 627 rejected.

There were 3 302 "special cases" for both types of permits, where the application will have to be reviewed - a process that includes further consultations with the client.

"Although all permits for applications up to the end of January 2011 have been dispatched to the respective offices, applicants must allow a grace period of 14 working days (20 April 2011) from the end of March before they lodge enquiries with the contact centre," he added.

With regards to the processing of applications from Zimbabwean nationals wanting to regularise their stay in South Africa, Apleni said this was process was still being finalised.

After consultations with the Zimbabwean government, the department had agreed to finalise the process by 31 July 2011.

Apleni said the department had adjudicated 119 009 of the more than 275 000 applications from Zimbabwean nationals.

A further 156 753 applications still had to be adjudicated.

The department estimates that it would take 53 working days to complete the adjudication, at the rate of 3 000 adjudications per day.

Of the applications that are still to be adjudicated, 116 960 of them had outstanding information - which included passports, fingerprints and other supporting documents.

The department would be communicating with these applicants requesting them to furnish their outstanding documents or information.



Reported by: South African Government News Service

http://7thspace.com/headlines/377400/south_africa_home_affairs_clears_permit_backlog.html

fast-tracking at the expense of quality

The department is saying one thing, but the reality is something else - my attorney has advised that the department (Pretoria hub) is not talking to members of the public/attorneys.  The reports should also get input from applicants and their attorneys.  Fast-tracking applications will inevitably result in a compromise in quality of adjudications.  The question is how many of these applications are being rejected for reasons that are not in line with the immigration act, only to be successfully appealed at a later date...

Home affairs ‘making headway’ in permit backlogs

LOYISO LANGENI

Published: 2011/02/22 07:14:27 AM

CENTRALISING the process for foreigners to apply to the Department of Home Affairs for a variety of permits had reduced the backlog from 38039 to 13677 outstanding applications, the department said yesterday.

The delay in processing work permit applications in particular has in some quarters damaged SA’s reputation as an attractive destination for scarce skills from abroad. Permit applications lodged with the department’s regional offices took months, and in some cases years, to process due to the absence of a coherent and sophisticated IT system.

The applications — for study permits, work permits, business permits, and temporary and permanent residence permits — did not include applications by undocumented Zimbabweans under the special dispensation, which required them to apply before the end of last year.

"Through centralisation (in Pretoria), the d epartment has assumed full control and accountability over all permit applications submitted at all our regional offices across the country," department director-general Mkuseli Apleni said yesterday.

"In this regard we also have implemented a filing system where all permits are held according to provinces, offices, category and date."

Mr Apleni said the backlog should be completed by next month as the department dealt with 1600 applications a day on average . An in-house courier service has also been established by the department to accept and dispatch all permit applications in time to their recipients.

Other innovations include upgrading the department’s IT system to allow applicants to track their applications online.

The turnaround time for processing a temporary residence permit is now four weeks, and six months for a permanent residence permit.

So far, t he department has processed 66000 of the 275000 applications by Zimbabweans who have applied to legalise their status in SA. The department plans to address this deficit by the end of June.

Home Affairs Minister Nkosazana Dlamini-Zuma is meeting her Zimbabwean counterpart in Pretoria today to discuss the plight of undocumented Zimbabwean nationals in SA.

Ms Dlamini-Zuma will also give feedback about the special dispensation for Zimbabwean nationals to legalise their stay.

http://www.businessday.co.za/Articles/Content.aspx?id=135002