Constitutional Court win paves the way for immigration progress

Source: Samigration, 02/02/2019

Darbandi, representing the Mulowayi family from DRC, took their
case to the Western Cape high court and then the Constitutional
Court after their application for citizenship was rejected on the
grounds that regulations stated they had to be resident in South
Africa for 10 years before they could apply. She argued that
regulations prescribing a 10-year period of residence before a
foreigner can apply for citizenship were contrary to the
Citizenship Act, which prescribes only a five-year period.
Darbandi applied to the Constitutional Court, effectively for
confirmation of an order of the Western Cape high court, declaring
regulation 3(2)(a) of the Regulations on the South African
Citizenship Act, 1995 invalid and setting aside the regulation.
She explains that the regulations were not aligned with section
5(1)(c) of the Act, which states: “The Minister may, upon
application in the prescribed manner, grant a certificate of
naturalisation as a South African citizen to any foreigner who
satisfies the Minister that (c) he or she is ordinarily resident
in the Republic and that he or she has been so resident for a
continuous period of not less than five years immediately
preceding the date of his or her application.”
Darbandi says the Constitutional Court’s finding is good news for
foreigners seeking South African citizenship, and removes one of
the hurdles in the way of immigration.
“There are encouraging signs of reform in South African
immigration law and processes, and the department of home affairs
appears to be supporting these positive developments,” she says.
However, more progress needs to be made if South Africa is to
succeed in its efforts to attract up to 800 000 high-level foreign
skills and large numbers of foreign investors to the country,
Darbandi says.
“We can’t be a ‘closed border country’ if we want the economy to
grow. While this Constitutional Court finding is a step in right
direction, making the regulations less restrictive and South
Africa more appealing to foreigners, all stakeholders need to work
together to make visa and immigration regulations and processes
less restrictive.”
Darbandi has long campaigned for uniform application of visa and
immigration policies, and for a more open approach to immigration
in general. As a founding member of a new Task Team for
Immigration Reform, which is backed by Business Leaders South
Africa, she aims to continue working to address shortcomings in
the current system, which, she says, still forces too many people
to suffer wrongful outcomes, delays and various injustices.
“Immigration has been found to have a measurable positive impact
on GDP growth, yet our laws, and the inconsistent way in which
regulations and policies are enforced, are closing our borders to
foreign investors and skilled foreign workers who could both
address our in-country skills gaps and support much-needed
knowledge transfer,” Darbandi says.