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By its own admission, the department loses most of its court cases – the costs of which are borne by the taxpayer. From Moneyweb.

Dzmitry Dzenisiuk was deployed to SA in 2014, with his wife joining him under a spousal visa. Both applied for visa extensions in February 2021. Image: Moneyweb

The Department of Home Affairs (DHA) has been blocked by the Pretoria High Court from deporting a foreign worker and his wife, both of whom had been refused visa extensions, based on its failure to properly consider the documents supplied in their visa applications.

This is the latest in a string of court losses notched up by Home Affairs.

In the latest ruling, the high court ruled that the decision not to renew the visa of two foreign nationals must be set aside and returned to Home Affairs for reconsideration.

Dzmitry Dzenisiuk was deployed by Czech company IBA to SA in 2014 by way of an inter-company transfer visa. His wife accompanied him under a spousal visa. Both applied for visa extensions in February 2021.

In May 2021, Home Affairs rejected Dzenisiuk’s application for renewal of his Critical Skills Working Visa on the grounds that there was no proof the employer was registered in SA.

That was clearly in error, as the company registration number was reflected on the visa application forms.

When Dzenisiuk appealed the decision, Home Affairs came back with a different objection, that “according to the company registration provided by you, you are the only listed director, and you are applying as a managing director”.

“The shifting of the goalpost is apparent from the response to the initial appeal,” noted Acting Judge Reinhard Groenewald.

DHA displays dogged determination

Dzenisiuk made a further appeal, providing evidence that he is one of two directors in the company but is not a shareholder.

Undeterred, Home Affairs fired back, accusing him of misrepresentation and stating that he was in fact the owner of IBA and had contravened the Immigration Act.

This, too, was wrong and the DHA’s “failure to properly consider the relevant facts” ultimately led it to “the wrong conclusions,” reads the judgment.

The decision by Home Affairs that either IBA or Dzenisiuk [the applicants] had contravened the Immigration Act would likely have a bearing on any future visa applications by Dzenisiuk.

The applicants argued that no distinction was made between the legal personality of the company and its shareholders, and also ignored the difference between a director and a shareholder.

“Considering the facts of the matter, including the shifting of goal posts by [Home Affairs], as well as the apparent failure to fully consider both relevant circumstances and the apparent oversight in respect of the correct status of [Dzenisiuk’s] employer, it follows that the decisions must be reviewed and set aside,” says the judgment.

The visa applications were ordered back to Home Affairs for reconsideration, and Dzenisiuk and IBA were given 10 days to supplement the applications with any documents deemed appropriate.

No deportation would be allowed until the applications were finalised.

‘Radical overhaul’ of the migration system

In November last year, Home Affairs published a white paper proposing a radical overhaul of citizenship, immigration and refugee protection.

The paper laments the stream of negative press against the department and concedes that it has been defeated in most court cases and slapped with court orders of which it has not been aware.

“This must change as the fiscus cannot afford more,” says the paper, which was widely condemned by human rights group for its proposal to limit the rights of migrants.

ReadOverhaul of border control and immigration laws on its way

Despite its admitted lack of success in the courts, Home Affairs seems determined to plough on with a litigation strategy that has not been in its favour.

Home Affairs also headed for ConCourt

The DHA is headed to the Constitutional Court to appeal another ruling against it for terminating the Zimbabwe Exemption Permit (ZEP) system, which the Pretoria High Court found to be unlawful and unconstitutional.

The DHA and Home Affairs Minister Aaron Motsoaledi’s appeal against that ruling had already been dismissed by both the high court and the Supreme Court of Appeal, in part because there was no consultation with the 178 000 permit holders likely to be affected and the department’s decision did not follow proper procedures. The last avenue of appeal for Home Affairs is the ConCourt.

ConCourt slaps Home Affairs minister and DG with personal cost order
Zim permits: Helen Suzman Foundation takes on Motsoaledi in ConCourt

The ZEP Holders Association, representing many thousands of ZEP holders, argues that government’s new-found zeal for targeting immigrants is an ANC pre-election ploy aimed at appealing to xenophobic elements within the country. This is denied by Home Affairs.