Chapter 2 - Citizenship
There are some people who come here for purposes of work, and they are called immigrants and migrants. There are others who are here to seek asylum and refugee status. This will be dealt with in the section, Refugees.
The Immigration Act (No 13 of 2002) deals with immigration and migration. It repeals the Aliens Control Act of 1991 as well as the Aliens Control Amendment Act (No76 of 1995) and regulates the admission of people to South Africa and their right to live and work here. The Act uses a licensing fee to manage the process of allowing foreigners to work and live in South Africa. It also regulates the movement of migrant workers in certain sectors such as mineworking and agricultural work.
Remember that there is no 'right' for a non-South African to be given a permit to come to South Africa, or to live and work here. It is always a permission which may be granted or refused. People who apply for the permission have the right to administrative justice. This means they have the right to be given reasons, in writing, why permission was not given.
If a person is granted permission to live in South Africa on a permanent basis, they are entitled to most of the rights which apply to 'everyone' in the Bill of Rights.
If they are given permission to remain in South Africa on a temporary basis, such as a work permit, they are protected by some but not all of the rights. It will be many years before the courts have made enough rulings in individual cases to give us certainty as to what rights protect such temporary residents.
The Immigration Act says that every person who is not a South African citizen and who wants to come to South Africa must come in through a legal 'port of entry.' That means a border crossing by road or railway, or an airport, or a sea port where there is proper border control with immigration officials and police persons as well as customs officials. This is applicable for entering and departing the Republic. People who enter otherwise are illegally present in the country and if they are found they will be deported.
In order to come legally to South Africa a person must have a valid passport from her/his country or a certificate applied for and issued by the Department. Such a person must also have some kind of permit to enter South Africa. If it is not the case, his/her passport must be valid for not less than 30 days after expiry of intended stay. There are two kinds of permits: permanent residence/immigration permits and temporary residence permits (legislation makes provision for no less than 13 types of temporary residence permits).
This permit allows a person to live permanently in South Africa, while remaining a citizen of another country. According to the Immigration Amendment Act this permit can be issued on condition that the holder is not prohibited (because of disease, outstanding conviction, previous deportation, association with terrorism or possession of fraudulent permits/passport) and not undesirable (declared incompetent, unrehabilitated insolvent, fugitive from justice or previous criminal convictions).In some instances such as in the instance of a scarce skill, a person who wants such a permit should apply before coming to South Africa. Sometimes a person who is here on a temporary work permit will be allowed to apply for an immigration permit while she or he is already here. The other permits that people are on they are on must still be valid.
There are four ways of obtaining a permanent residence permit. If the person:
The application forms are available at any South African embassy or consulate, or direct from the Department of Home Affairs in Pretoria.
The fee for submitting an application for a Permanent Residence permit is R1520. Contact the local Department of Home Affairs office to confirm that this fee is still correct or for more information. When the application is received by Home Affairs, it is sent to a regional committee of the Immigrants Selection Board in the province where the applicant wishes to live. The members of these regional committees and of the Board as a whole are not officials of any government department, but are independent individuals. The committee will investigate the application.
The applicant must be:
The committee will give special consideration to the following applications, but there is still no 'right' to be granted the permit:
The Constitutional Court has said South Africans have a right to live in the country that they were born in with the partner of their choice. This means the government cannot refuse to give immigration permits to foreign-born spouses (husbands or wives) of South African citizens.
The Court has also said that the Department of Home Affairs may not refuse to issue work permits to foreign-born spouses of South African citizens unless they have a very good reason. Therefore - spouses and dependants of South African citizens do not pay for an immigration application (Permanent Residence).
Life partners in common law or gay relationships should receive the same treatment as married applicants. Because they don't have marriage certificates, they have to supply affidavits stating they are life partners with their applications.
If the committee grants the permit, it may make it a condition that the person works and lives in the province concerned for at least 12 months.
If the permit is refused, the applicant may ask the Central Board to review the provincial committee's decision but it does not have to. Legal advice is definitely necessary to see if there can be any court challenge to the decision.
Withdrawal of a permanent residence permit can take place in circumstances including the following:
A temporary residence permit allows a foreigner who is not the holder of a permanent resident permit to enter and stay in South Africa for a limited time.
A person who wants such a permit should apply before coming to South Africa. Application forms are available at any South African embassy or consulate, or direct from the Department of Home Affairs in Pretoria. An application fee will be charged. If the permit is refused there is no review procedure.
There are many different kinds of temporary permits which can be applied for. These are described in the Immigration Act, Sections 11 to 23.
The Refugees Act (No 130 of 1998) says that South Africa cannot refuse to allow a foreigner into the country or force them to return to their own country if in their own country:
Definitions of asylum seekers and refugees
A refugee is a person from another country who has fled to South Africa to escape war or persecution, and who has been granted refugee status under the Refugee Act, No. 130 of 1998.
An asylum seeker is a person from another country who has fled to South Africa to escape war or extreme violence, and who is formally seeking refugee status, but has not yet been granted it.
An undocumented foreign national is a person from another country who has entered South Afirca and who is in the country illegally, because they have not engaged with any formal processes to legalise their residence - or they have not engaged successfully. The person is undocumented in South Africa, however they may have documentation in their country of origin.
If a person or their dependants falls into one of these categories then they could be regarded as refugees. But, a person does not qualify to be a refugee if he or she has committed a serious non-political crime. People who are fleeing from economic hardship (no employment) or natural disasters (like floods or earthquakes) are not recognised as refugees in terms of the Refugees Act.
Applying for asylum (Section 22)
At the place where the person seeking asylum enters South Africa, he or she will be granted a transit permit which is valid for 14 days, in terms of the Immigration Act. A person who wants to apply for asylum must go to the Refugee Reception Office during this time to submit an Eligibility determination form (form BI-1590). You have the right to be assisted in English when making an application. Once the person has made an application for asylum he or she will receive an Asylum Seeker Permit. This is often referred to as a Section 22 permit. If a person has been issued with this permit, then any other permit issued under the Immigration Act becomes null and void. The Asylum Seeker Permit can be extended from time to time, and will be valid for up to 6 months and then can be renewed.
The government can withdraw the asylum seeker permit (Section 22) if:
If a permit has been withdrawn the person seeking asylum can be arrested and detained until their application for asylum has been finalised.
When the government is deciding on an application for asylum they must explain the procedures to the person and tell them what their rights and duties are.
The Refugees Act says asylum seekers are not allowed to work or study. The South African Human Rights Commission challenged the Refugees Act which states that asylum seekers are not allowed to work or study. As a result the Department has instructed all Refugee Reception Offices to endorse the Section 22 permits allowing asylum seekers to work or study.
Refusing an application for asylum
If an application for asylum is rejected the person must be given the reasons in writing within 5 days of the refusal. If asylum is refused on grounds that the application is 'manifestly unfounded, fraudulent or abusive', the Standing Committee for Refugees will review the decision to refuse asylum. Such a case does not go to the Appeal Board.
An asylum seeker can lodge an appeal with the Appeal Board once he or she has been told that the application has been refused. The applicant must be allowed to bring a legal representative to the Appeal Board hearing if he or she requests this.
Rights of asylum seekers
An asylum seeker:
Applying for a refugee permit (Section 24)
The applicant will be interviewed for their Refugee Status Application. They may bring witnesses, or a person who is able to speak English to assist them to tell their story. They must also bring supporting documents such as:
They will be notified about the outcome of their application within 180 days.
What happens if an application for refugee status is declined?
The person will be given 30 days to submit an appeal to the Refugee Reception Office or to leave the country. In the appeal the person must state reasons why he or she should not go back to their home country.
A person can appeal on the basis that:
What happens if the application for refugee status is approved?
Rights and duties of refugees
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