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Chapter 2 - Citizenship

Immigrants and migrants

Laws governing foreign nationals

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.

Rights of non-citizens

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.

THE SOUTH AFRICAN CONSTITUTION AND BILL OF RIGHTS, Section 33: Just Administrative Action

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.

Legal entry and stay in South Africa

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).

Permanent residence

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:

1. has been the holder of a work permit for five years and has received an offer for permanent employment.
2. has been the spouse of a citizen or permanent resident for five years.
3. is a child under the age of 21 born of permanent resident.
4. is a child of a South African citizen.

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:

• of good character
• a 'desirable inhabitant' of South Africa
• not likely to take a job for which there are enough South Africans available

The committee will give special consideration to the following applications, but there is still no 'right' to be granted the permit:

• someone who is the aged or destitute or disabled dependant of a permanent resident, provided that the permanent resident concerned has enough money to support the dependants.
• the husband or wife of a South African citizen or a permanent resident.
  A person who is applying because he or she is married to a South African or a permanent resident does not have to pay the application fee.

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:

• if convicted of any listed offences
• has been absent from the Republic for more than three years unless exempted
• has not taken up residence in the Republic within one year of the issuance
  

Temporary residence permits

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.

1. Visitor's Permit or tourist visa

This is the easiest permit to get. We want and need tourists because it is a growing sector of our economy so Home Affairs issues these permits (visas) readily. These visitor's permits cannot be changed to any other kind of temporary permit. South Africa has visa agreements with certain countries, like the United Kingdom or the United States, which allow residents of these countries to just arrive at South Africa borders and ask for a visitor's permit. The visitor's permit is granted for a period up to 3 months. It may be issued for a longer period for visitors who have financial security and are engaged in specific activities such as research or charitable work.

2. Diplomatic permit

This is issued to an ambassador, minister of a foreign state, career diplomat, or consular officer.

3. Study permit

This is for a foreigner wishing to study for a period longer than 3 months, and who can satisfy prescribed conditions.

4. Treaty permit

This is issued to a foreigner conducting activities in South Africa in terms of an international agreement to which South Africa is a party.

5. Business permit

This is issued to a foreigner who is purchasing, investing in, or establishing a business in South Africa. It can also be granted to members of such foreigner's immediate family. Prescribed financial contributions apply.

6. Crew permit

This is issued to a foreigner who is a member of a crew of a ship. The crew member has to remain in a predetermined area in terms of this permit.

7. Medical treatment permit

This is issued to a foreigner who intends to receive treatment in South Africa for longer than three months.

8. Relatives permit -

This is issued to the immediate family of a citizen or resident,

9. Work Permit

This is very difficult to get unless the employer can prove that every effort has been made to find a South African to fill the position.

• Quota Work Permit - The foreigner must fall within a specific professional category; these are proclaimed by the Minister annually.
• General Work Permit - this is only valid for the duration of the contract of employment, and certification of continued employment needs to be submitted annually.
• Exceptional Skills Permit - Foreign National applicant skills and qualifications which are deemed beneficial to SA development. Valid for 3 years only. This can include the family of the person holding exceptional skills.
• Intra-company transfer work permit may be issued to a foreigner required to work in the Republic for a period no longer than 2 years. They are restricted to work for the particular company referred to in the permit.

Foreign spouses of South African citizens are no longer charged a fee for a work permit and it may be applied for in South Africa. The work permit is issued on proof of the existence of the marriage and a work offer. The applicant should have applied for Permanent Residence. This service is currently free of charge.

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.

10. Corporate Permits
    • A 'corporate permit' is applied for by a 'corporate applicant.' (The employer), and permits the employer to employ foreigners for a documented purpose, and for specified period of time.
    • The employer, whom is applying for a 'Corporate Permit,' MUST prove that he or she has previously searched for workers in South Africa, and was unsuccessful in finding the required amount of workers, in order to receive the permit.
    • Unskilled workers will need Temporary Residence Permits to enter the country, under a Corporate Permit.
    • Skilled workers will need to apply for General Work Permits, under a Corporate Permit.
11. Retired person's permit

This is issued to a foreigner who wishes to retire in the Republic, provided they have proof of a pension from their country of origin or a minimum prescribed net worth. This is issued for a four year period and can be renewed.

12. Exchange permit

This is only issued to foreigners not older than 25 years of age who wish to participate in cultural, economic or social exchange programmes)

Asylum Seekers and Refugees

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:

• they would be persecuted because of their race, religion, nationality, political opinion because they belong to a certain social group for example because of sexual orientation.
• their lives would be in danger because of a war or serious disruption of public order.

Some of the people from other countries who are among us are 'asylum seekers' - they are people who have fled from their own countries because of political conflict or war. They are asking for refugee status in South Africa so that they can have some protection, while they wait for the time when it is safe for them to go home again. The Refugees Act of 1998 and regulations apply to refugees living in South Africa.

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.

See CITIZENSHIP, Refugees

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.

See Resources for a list of organisations that will assist with details of where to go to apply for asylum and what to take along

The government can withdraw the asylum seeker permit (Section 22) if:

• the applicant goes against any of the conditions on the permit
• they find that the application is not based on the truth
• the application for asylum has been rejected

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.

See Resources for names of organisations that will assist with refugee and asylum problems.

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:

• Has the right to healthcare, and access to public health care services
• Has the right to look for work. If employed, the Basic Conditions of Employment Act will apply, and the person must be paid a minimum wage.
• Cannot be refused access to education. As a holder of either a Section 22 or a Section 24 permit, a child is entitled to access to education at public schools.

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:

• Birth Certificates
• Photographs
• Personal records
• Research done about conditions in their home country, including newspaper articles

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:

• The correct procedure for processing the application was not followed;
• The facts on the application were not taken into consideration;
• The person who interviewed him or her was biased.

What happens if the application for refugee status is approved?

• If the application is successful, the person will be granted refugee status and a Section 24 permit that is valid for two years;
• He or she will immediately be issued with a Refugee ID in terms of Section 30 of the Refugee Act;
• This Section 24 permit must be renewed at the Refugee Reception Office 90 days before the expiry date.

Rights and duties of refugees

A refugee

• has all the rights contained in the Bill of Rights, except rights specifically reserved for citizens, for example the vote
• can apply for an immigration permit in terms of the Immigration liens Control Act after living in South Africa for 5 years after the date that he or she was given asylum
• can get an identity document and passport
• can look for work and the Basic Conditions of Employment Act applies if employed.
• can use the basic health care services and primary education facilities
• may apply for social assistance grants, mainly the Disability Grant and Foster Child Grant.

See Chapter 7: Social Grants