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Chapter 2 - Citizenship

Immigrants and migrants

Laws governing non-citizens

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. The idea is that if someone is willing to pay more to employ a foreigner than they would to employ a South African, then that foreigner is needed.

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.

See CITIZENSHIP, Refugees

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 / immigration permit

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).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 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. The fee may have gone up – but contact the local Home Affairs office 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.

A temporary residence permit

This kind of permit allows a person to 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:

• 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.

• 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.

• 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.

• business permit (this may be issued to foreigners who contemplate investment in the South African economy by establishing a business or investing in an existing business)
• exchange permit (this may be issued to foreigners not older than 25 years of age who wish to participate in cultural, economic or social exchange programmes)
• crew permit
• relative’s permit (this may be issued to the immediate family of a South African citizen)
• retired person permit (this may be issued to a person who wishes to retire in South Africa)
• corporate permit (this may be issued to a corporate applicant which will allow him/her to employ a predetermined number of skilled/semi-skilled/unskilled workforce)
• study permit (this may be issued as long as no foreigner displace a South African citizen at local educational institution and proof of sufficient funds is necessary)
• medical permit
• workseeker's permit (this is designed for a person who has applied for a job from her or his own country, and has to come to South Africa for an interview and to negotiate an employment contract. It is clearly not designed to allow anyone to come to look for a job).

Refugees

The Refugees Act 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 or because they belong to a certain social group
• their lives would be in danger because of a war or serious disruption of public order

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/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.

Once the person has made an application for asylum he/she will receive an asylum seeker permit. If a person has been issued with this permit, then any permit issued under the Aliens Control Act becomes null and void. The asylum permit can be extended from time to time.

The government can withdraw the asylum seeker permit 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.

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/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/she requests this.

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 Aliens Control Act after living in South Africa for 5 years after the date that he/she was given asylum
• can get an identity document and passport
• can look for work
• can use the basic health care services and primary education facilities