High court orders Home Affairs to issue her documents without delay. From Moneyweb.
A UK-born citizen has been granted permanent residence in SA six years after applying and being subjected to repeated bureaucratic obstacles and a failed appeal.
The Pretoria High Court ordered the Department of Home Affairs (DHA) to issue permanent residency to the immigrant “forthwith”.
“After years of unjustified delays, refusals, bureaucratic dead ends and frustration, the applicant has now been vindicated on all fronts,” says Jaco Brits, head of immigration at Xpatweb, which acted on her behalf. Home Affairs was also ordered to pay the costs of the court case.
The DHA refused the initial application, as well as the subsequent appeal application in October 2022. Brits says Home Affairs likewise also failed to process her Retired Person’s Visa renewal, submitted in February 2023. This renewal was crucial to maintain her legal stay in SA while awaiting a decision on her permanent residency.
In the end, the court made the rare decision to demand that she be granted permanent residence.
Normally, courts take a softer approach by insisting Home Affairs make a decision on contested applications.
Read: Home Affairs given 30 days to issue visa to UK accounting professional
In this case, the court made the decision, instructing the minister and director-general of Home Affairs to issue both a Retired Person’s Visa and a Permanent Residence Permit.
This brings finality for the woman after years of uncertainty, adds Brits.
The court ruling provides further protection to the immigrant, allowing her to enter, reside, work in, and leave SA freely. The DHA is prohibited from taking any action that could result in her arrest, detention, or deportation.
Litigation often the only way to go
Brits says litigation is often the only way to resolve unduly long delays.
“Many applicants are left in limbo due to government administrative inaction or irrational rejections. In this case, it’s clear the DHA officials involved did not apply their minds, and this court ruling vindicates this.”
Immigration lawyers complain that DHA’s campaign to clear the more than 300 000-strong visa backlog inherited from the previous administration has come with a high rejection rate and a consequent surge in appeals. Many of these appear irrational, with applicants being asked for documents not required in law, such as DNA tests alongside birth certificates.
‘Slight improvement’
Immigration attorney Stefanie De Saude-Darbandi notes a “slight improvement” in the high rejection rate by the DHA.
“There are still more rejections than there should be, and the appeals aren’t prioritised at all.”
The campaign to clear the visa backlog has had some perverse outcomes. Processing times are sometimes extended, while rejection rates remain high, says another immigration attorney, Steven De Andrade.
Read: Home Affairs slammed over visa rejection rate despite clearing backlog
“It is clear litigation has become a necessary legal route for applicants facing unreasonable delays in visa or permanent residence adjudication flowing from the historic backlog inherited from the previous administration,” says Brits.
Home Affairs Minister Leon Schreiber is doing miraculous work at the department, according to immigration attorneys, but the task ahead of him is massive due to the chaos inherited from previous minister Aaron Motsoaledi.
One wealthy German immigrant contacted by Moneyweb says he spent R300 000 on legal fees to secure permanent residence after the DHA failed to process his application. Home Affairs was instructed to process his application, which was eventually granted.
Listen/read:
ActionSA slams ZEP extension as Schreiber defends legal process
‘It’s a disgrace’ what’s happening at SA Tourism – Southern Sun chief
Chinese and Indian visitor numbers slump despite visa reforms
In 2023, the DHA reported more than 1 000 active litigation matters related to immigration services, while its total legal bill in the 2024 financial year came to R150 million, according to the Portfolio Committee on Home Affairs.
A high percentage of these legal costs arose from visa rejections and delays resulting in reviews under the Promotion of Administrative Justice Act.
The recent launch of online e-visas, coupled with backlog task teams, aim to cut litigation by 50%.
