Immigration Act upended by legal chaos

Source: Mail & Guardian, 31/05/2019

The Immigration Act of 2002 first came into operation on April 7 2003,
with amendments on July 1 2005, and then on May 26 2014. This is the
country’s single piece of immigration legislation and, all told, the
Immigration Act �` together with its regulations �` amounts to 362
pages. The specific requirements for each category of temporary and
permanent residence applications are listed in the regulations.
Yet, in reality, there exist 125 laws: one for each of the 124 South
African foreign missions where immigration applications are submitted,
and one for the department of home affairs.
It takes a little patience to compare the consular websites of South
Africa’s 124 foreign missions where immigration applications are
submitted.
When doing so, you will note that the list of requirements for
specific visa categories in South Africa’s Immigration Act and its
regulations are almost always divergent from the list posted on
foreign missions’ websites.
South Africa’s foreign mission in Paris, for instance, requires that
critical skills visa applicants present a contract of employment and
their employer’s latest tax returns and company registration
documents. This is not the case at the United Kingdom’s foreign
mission, nor in South Africa itself. Zimbabwean critical skills visa
applicants are routinely required to present their birth certificates,
whereas this is not required by other nationalities. Applying for a
retired person visa in Milan requires proof of valid medical cover,
yet this requirement is categorically reserved for study visas. The
South African embassy in Toronto insists that foreign spouses applying
for a visa with authorisation to work in South Africa must first have
been in possession of a relative visa. This differs from the
Immigration Act.
These differences are detectable from mission to mission, and it is
only a question of degree as to how significant they are. The
consequence is that applications complying definitively with the
Immigration Act are rejected for noncompliance with the whims of the
consular missions and their staff.
The South African white paper on immigration reform, adopted by the
Jacob Zuma Cabinet in 2017, indicates in a footnote on page 35 that
only 30 missions out of 124 are serviced by home affairs officials.
This effectively means that at most locations where foreigners lodge
their applications abroad, the adjudicators on applications
contemplated by South Africa’s Immigration Act are either officials
from the department of international relations and co-operation �` or
perhaps even staff that are local to the communities in which those
missions exist.
International relations department officials can hardly be regarded as
expert in the substance of our immigration legislation. They are not
educated in immigration law, they have no grasp of South African
immigration policy and no knowledge of jurisprudence on the
interpretation of the Act. How, then, can consular officials clueless
on our immigration rules be expected to decide which foreigners may
obtain work, business or retired person visas?
People applying for business visas at foreign missions, including
foreign investors, are therefore forced to deal with employees who
have neither knowledge of the Immigration Act nor the inclination to
determine complex applications for immigration benefits in terms of
the Act.
It is not uncommon for foreigners who make compliant applications to
have some manner of adverse information contained on their police
clearance certificates. Rarely does this render them “prohibited
persons”, nor people who are subject to be declared undesirable, but
it does require that they are subject to closer scrutiny in terms of
the Immigration Act.
In these and other cases where foreign missions lack adequate
knowledge and expertise to address complex cases such as these,
applicants are instead exposed to walls of deafening ignorance. They
often face adjudicatory authority so arbitrary and subjective that
their applications are destined for a road to nowhere.
South Africa’s immigration system must �` like all systems �` be applied
consistently. Instead, we see chaos by design. Those responsible for
the management of foreign missions are alive to this secret, because
administrative appeals filed as a consequence of a rejection at a
mission rarely see the light of day within any reasonable timeframe.
In the old days under Nelson Mandela and Thabo Mbeki, foreign missions
such as those in Bern, London, New York, Washington DC, The Hague and
Berlin used to be showcases of South Africa’s moral high ground and
its hunger for foreign direct investment and talent.
The original thrust of ANC policy in 1994 was to partake in the
international competition for investment and global competitiveness.
What has happened to this? What can explain the degradation of South
Africa’s consular missions into bastions of xenophobia?