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Is it time to ask the Constitutional Court to examine the workings of Home Affairs?

Source: Tourism Update, 04/06/2017

One of the key issues not raised in all the discussions around the
changes in South Africaâ€™s Immigration laws since mid-2014, relates to
the general processes and conduct of the Department of Home Affairs in
the execution of its duties. These duties include receiving and
adjudicating applications submitted through Visa Facilitation Services
(VFS), an outsourced company which is only meant to handle the
logistics of this process at their front offices in nine provinces.
They have no legal right or mandate with respect to offering advice in
any form.

The SASSA Constitutional Court Case, which saw the Judges of the
Highest Court in the land intervene in a looming crisis with respect
to the incapacity of the Ministry of Social Development to deliver and
pay social grants to 11 million people, has a striking parallel. The
Constitution and the social development legislation prescribe roles
and responsibilities which, in general terms, empowers and provides
the framework for the Minister to exercise her role and it sets out
certain responsibilities. These are set in law and can only be
exercised, or delegated, as prescribed by the law.

In the case of Home Affairs, the Minster has responsibility for
Immigration and can only delegate his responsibilities to another
party/person within the sphere of the State. In the case of VFS, it is
a private company advising at and through its offices, often
incorrectly, on Immigration matters. Home Affairs is basically
inaccessible and unresponsive on key issues related to documents and
decisions which impact on applications which people have to submit.
The Ministerâ€™s authority has been unlawfully delegated and is being
exercised by an unauthorised party. Directives, which applicants
require in order to have information for their applications, are
generally not available and the attitude of the department is that
they are not required to make this information available.

Immigration is complex in many cases and South Africaâ€™s scheme has its
convolutions. The law is not cohesively written and sometimes what you
read in the Immigration Act and regulations â€œainâ€™t as advertisedâ€ as
many a bargain hunter has found out after buying a cheap product. The
roles of the Act and regulations in prescribing the framework and
requirement are interchangeable and often read like a series of
afterthoughts. Then there are directives, which are not accessible,
and court cases. Add to that the interpretations of various staff
members at various levels and at Consulates abroad and one would swear
that you had wandered on to a remake of the Tower of Babel.

Lawyers and practitioners represent applicants and in fact people are
entitled to representation in terms of our Constitution. Home Affairs,
at all of its offices and VFS offices, effectively denies people this
right. When challenged, they might relent, but it is clear that there
is a high level disdain for the right of representation and a culture
of obstruction. In many cases there is blatantly unconstitutional
advice and decision making, which denies people the right to family
life, the right to do business and a host of other rights in the
Constitution.

It is quite common to receive decisions from Home Affairs and Labour
that have no rational, logical or fair basis. To say that people can
complain or appeal is trite â€" if the basic service is not offered on a
systematic basis and it takes 6-12 months to get a similarly poor
decision, then the system has broken down and the courts have to
become involved.

Then there are decisions by courts in respect of immigration matters
which Home Affairs simply ignores. In the Dabone matter, the courts
decided that asylum seekers and refugees could apply for other
prescribed visas inside South Africa, with reduced requirements. Home
Affairs has overridden this case and refuses to accept applications.
In the Stewart matter, the judge clearly stated that conditions, which
provide the framework once a person has status (eg. work, study, visa)
may be changed inside the country. In many cases, Home Affairs denies
applicants the right to do this. VFS implements these decisions,
unlawfully, as their â€œsystemâ€ which will not allow these applications
to be accepted.

VFS charges R1 350 per application and had a minimum of R200m in
turnover inside South Africa and probably another R200m turnover
through applications submitted at SA missions abroad in the last year.
None of these fees are prescribed and these are therefore unlawful. I
cannot find a trace of competitive tenders or bids which cover this
arrangement. It is effectively a monopoly contract which has been
extended to many SA Missions in many countries.

A key State department function has been unlawfully outsourced to a
private company for additional non prescribed fees. Representation is
denied to applicants and representatives are openly vilified. The same
department overrides court decisions and issues decisions which are
fundamentally against the Constitution of the country.

Isnâ€™t it time for the judges to summon the authorities to account for
this state of affairs?

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