Foreign parents barred from SA

Source: Rand Daily Mail, 04/02/2016

Section 27(g) of the Immigration Act entitles a foreigner to permanent
residence in SA if he or she has a relative within the first step of
kinship (including children and parents) who is a South African
permanent resident or citizen. Regardless, home affairs has decided to
withhold that right from foreign parents and their children.


The immigration regulations impose on the South African relative an
obligation to sponsor the foreign applicant financially. It is not
ordinarily possible for a minor child to undertake any obligation to
its parent, let alone assume a financial obligation of support.


Therefore, any permanent residence application made on this
basis is refused by home affairs.


Home Affairs Minister Malusi Gigaba made these regulations even though
they clearly limit the rights of family unity. This raises the
question whether the minister consulted with the Immigration Advisory
Board, as he was obliged to do in terms of the act, before making
these regulations.


It is intriguing that the regulations, before the most recent
amendments to the act in May 2014, did not require minor children to
sponsor their parents for permanent residence.


The act, however, allows a foreigner to apply to the minister for a
waiver from any regulatory requirement for "good cause". A foreign
parent of a minor South African child must, therefore, first apply to
the minister for a waiver from the financial sponsorship obligation
imposed on the child.


Such an application can take up to six months to be decided. If the
minister grants such waiver, the parent can then apply for permanent
residence, which may take another 18 months to be adjudicated. This is
the unwarranted laborious two-step process that parents of minor
dependent children must endure.


We have recently witnessed a steady pattern of refusals to grant such
waivers on the basis that the minister could not find "good cause".
The courts have rarely defined the term "good cause" to avoid
constraining the discretion exercised by administrative decision
makers. The High Court in Cape Town in 2003 defined "good cause" to be
"dependent on the exercise of the court of a judicial discretion on
the basis of all the circumstances of a particular case so as to
achieve fairness between the parties".
"Good cause" simply means "a good reason", a particularly low onus, to
be carried by the applicant. It is trite that the minister, or his
lawful delegate within home affairs, must take into consideration
constitutional imperatives in deciding whether good reason exists for
the granting of regulatory waivers. At least "fairness between the
parties" must be sought to be achieved.


Section 28(2) of the Constitution requires that, in any matter
concerning a child, the child`s best interests are of paramount
importance.


Section 28(1)(b) enshrines the right of children to parental and
family care and section 10 of the Constitution protects the right to
dignity of all people. The right to dignity has been defined by the
Constitutional Court to include the right for a family and for spouses
to live together without any undue interference by the state.


The Constitutional Court has ruled that "section 28 requires the law
to make best efforts to avoid, where possible, any breakdown of family
life or parental care that may threaten to put children at increased
risk. Similarly, in situations where rupture of the family becomes
inevitable, the state is obliged to minimise the consequent negative
effect on children as far as it can."


This is a settled principle in international law, supported by Article
19 of the African Charter on the Rights and Welfare of the Child and
Articles 9 and 18 of the United Nations Convention on the Rights of
the Child. These provisions are the source of section 28(1)(b) of the
Constitution.


Notwithstanding existing constitutional norms, our immigration system
as applied by home affairs is in jeopardy of bringing the rule of law
into crisis.


The section 27(g) debacle is not an isolated phenomenon. It is allied
to the rights of foreign parents, or foreign children of South African
parents and foreigners married to South Africans, to remain in SA
after their temporary visas have lapsed.


It occurs frequently in ordinary life that temporary residence visas
lapse mistakenly or for compelling reasons.


No matter the degree of effort invested and inconvenience suffered by
foreigners who find themselves illegally resident in SA and who
voluntarily present themselves to home affairs to regularise their
status, they are too often prohibited from remaining in SA to file
their new temporary residence applications domestically, as well as to
await the outcomes of those applications in this country.


My law firm represents a growing number of illegal foreigners who are
not in a position to leave their families behind, some having just
given birth to children who are South African citizens, in order to
make their new visa applications from uncooperative foreign missions
and to await the outcome of those applications abroad for months on
end.


Home affairs has refused to allow those people to file their
applications locally.


In practical terms, senior officials in home affairs are responsible
for these decisions. SA no longer has an immigration policy, with
border security seeming to be the principal driver and preoccupation
of home affairs in its application of the Immigration Act and its
regulatory scheme.


This makes it impossible for many foreign parents permanently to live
with their South African minor children.


What is the purpose of such policies? What benefit does denying such
rights to parents and their children bring to SA?


Are we seeing xenophobia more ruthlessly manifest without any rational
reason?


Are the immigration officials who are responsible for refusing to
grant these waivers even aware of the existence of these legal
mandates?


It is as if home affairs management has simply lost its mind, as in a
Kafkaesque play, where the minds of decision makers are poisoned with
the cruelty of unbridled power. In the end, the value of our
Constitution and its Bill of Rights to our public administration must
be deeply questioned.