Immigration Litigation & Legal Services
Our law firm is prominent, is highly sought after and specialised in the provision of immigration-related legal services to individuals and organisations who are facing an ordeal with our Department of Home Affairs typically in a number of common areas.
Legal Services we Offer
- Challenges and Representations on Immigration Appeals against refusals of visas and permanent residence permits
The Department of Home Affairs has been refusing greater volumes of visa and permanent residence permit applications over the last two years than in its last ten years of operation.
Many of the refusals are without legal substance and unlawful (often simply edited refusal letters without direct relevance to the application submitted). To the recipient of a refused application it can be a daunting prospect receiving a refused application. It does not mean that if you are refused such refusal is correct in law and may well be overturned on appeal.
At Craig Smith & Associates we are often called up and mandated by foreigners who have received refusals to advise them of their rights.
This is a technical exercise and requires the legal ability to appreciate the constructs, legal interpretation and proper application of the Immigration Act and its Regulations. Only then would such refusal be suitably assessed as to prospects of success.
Our role would be to prepare appeals for our clients throughout South Africa and abroad and put the Department of Home Affairs on the ‘back foot’ so to speak to substantiate their decision. This is often where the refusal is overturned and our clients’ receive their visas or residence permits.
- Court Litigation – High Court Interventions to expedite delays and refusals
With the formal appeal process and general delays by the Department of Home Affairs in the adjudication and finalisation of temporary or permanent residence applications, and or appeals, there is a general frustration by foreign applicants in resolving long-awaited decisions.
At Craig Smith & Associates we are highly adept and vigorous in our challenges to the Department in finalising long outstanding delays.
We are briefed throughout South Africa and abroad literally everyday by foreign people who are aggrieved by unwanted delays and outstanding appeals whether through Pretoria or the South African offices abroad, to provide relief to those frustrated applicants who feel helpless in waiting for adjudication.
What we do is prepare Court papers to expedite these delays thereby forcing the Department to make a decision under extreme timelines. Assuming the paperwork was complete on submission, in most cases a successful outcome will be received.
Since the court work is based on application proceedings, there is no oral evidence or attendance by such applicant required at court apart from our attendances, which makes the procedure non-invasive and practical.
- Challenges and Representations on Immigration Appeals against the Declaration of Undesirability and Disqualification to return to South Africa for a defined period
In terms of the new immigration laws, any foreigner who departs South Africa with an expired visa will be declared undesirable. It matters not if the foreigner had legitimate grounds causing the overstay or not – the imposition of a ban by the immigration officer at the airports or order posts is obligatory. This is still on our agenda to overturn this practice. See Johnson and Others versus Minister of Home Affairs.
This practice has also created much fear in the minds of those foreigners departing South Africa who may have overstayed no matter what led to the overstay. This is in our view unconstitutional.
What makes matters worse is that the law will disqualify the foreigner who is banned from one year to five years depending on the length of the overstay. The consequences of such ban may impact on marital partners, minor children, persons with property in South Africa and of course a mark against one’s name by being refused return which may present difficulties in other travel aspirations to other destinations.
At Craig Smith & Associates we regularly act in the interests of the foreign persons to overturn the ban or disqualification and will consult and advise our clients to remove or lift such ban. We are very successful in this regard and are responsible for bringing this matter before the Constitutional Court in Johnson & Others versus Minister of Home Affairs.
- Immigration Legalisation overstays, Deportation and Detention interventions – attend on Home Affairs and Magistrates Courts
The current enforcement climate is rife with the Department of Home Affairs seeking to arbitrarily and unlawfully, arrest or order foreigners to depart whose status may be in dispute.
We are often called upon to assist in overstay matters where the foreigner may have overstayed his or her visa for some reason and we will assist in the attendances to remedy this issue to allow the foreigner relief to remain in South Africa.
Then there are more serious matters in terms of section 34 of the Immigration Act 13 of 2002, as amended, where any arrested and detained foreigner person would have the right to be brought to the Magistrate’s Court where the arrest took place and review the lawfulness of the manner in which the entry, search, interrogation, arrest and detention was conducted. Our intervention will often result in the release of the detained foreigner.
Craig Smith & Associates are the undoubted leaders in the attendances on the deprivation of liberty involving detention and deportation matters.
Our law firm regularly appears in such court proceedings and continues to be the ‘go-to’ law firm in these review proceedings to allow for the immediate release of the detained foreign person.
- Immigration Refusals to Enter and Detentions at South African International Airports
The Department of Home Affairs, through its Inspectorate, is always on the lookout to refuse entry to a foreigner based on grounds that his or her status is invalid or illegal.
At Craig Smith & Associates we are engaged by family or interested parties to approach the Department and put such immigration officials on risk of potential unlawful conduct.
We would make urgent representations to the Minister of Home Affairs to stay removal proceedings and possibly approach the High Court to grant the right of such foreigner to enter South Africa upon review of the decision by the immigration officer.
In many cases the immigration officer fails to follow procedures and respect substantive rights, which would render the refusal unlawful and thus grant the right to enter South Africa.
- Magistrates Court litigation on criminal detention and charges relating to immigration laws
The Department of Home Affairs has the right to charge foreign persons or locals, where applicable, in terms of section 49 of the Immigration Act.
In some cases, the said Department will alone, or engage with the Police, and effect an arrest with a view to charging someone with a criminal offence in terms of the Immigration Act.
If a foreigner is charged criminally, bail may become an issue to secure the immediate release of the accused person and there are times where the prosecution will simply oppose bail because he or she is a foreigner with doubtful paperwork. The law should not discriminate against foreigners in this regard but regrettably the State often opposes bail since they consider the foreigner to be a flight risk. This is not so.
At Craig Smith & Associates we are called upon to secure the release of the accused person and uphold their rights in any criminal proceedings. See recent bail attendance for US celebrity actor and rapper – Mos Def.
In this matter Craig Smith was briefed by most well-known apartheid struggle family in South Africa to appear for Mos Def to secure release on immigration charges. Bail was opposed and we secured his release after posting bail.
- Constitutional Litigation – High Court litigation to challenge constitutionality of immigration laws
It is no secret that our immigration laws are quite often in conflict with the Constitution and many foreigners find themselves subjected to visa or permit refusals or unwanted enforcement conduct that falls foul of the Constitution.
We are experienced in all constitutional challenges that may impact on the rights of foreign persons.
Our most recent matters that have related to the Constitution being that of Stewart & Others versus Minister of Home Affairs and Johnson & Others versus Minister of Home Affairs. See Media page for more info. In the matter of Johnson the matter went all the way to the Constitutional Court in affirming the correct legal position.
The reality is that if any conduct or law is in conflict with our Constitution, such aggrieved foreigner person can assert his or her fundamental rights and challenge domestic laws or conduct that fall foul of our Constitution to have it set aside on the basis that such law or conduct is considered unacceptable in a free and democratic society and be set aside.
CASE STUDIES OF LEGAL INTERVENTIONS
Below you will find different scenarios of the Legal Service we offer to give you more insight into how we would go about supporting situation. Click on a case study that best fits your need for more details.
- OUTSTANDING VISAS & RESIDENCE PERMITS – EXCESSIVE DELAYS
A temporary or permanent residence application has been submitted and taken in by the Department of Home Affairs but it is taking a long time to be finalized.
- Foreign applicant applied for a temporary residence, receives a receipt of submission of the application and the permit is still pending after more than 2 months.
- Foreign applicant applied for a permanent residence, receives a receipt of submission of the application and the permit is still pending after more than 8 months.
Our immigration law firm provides cost-effective and professional High Court interventions against the Department of Home Affairs to finalize any outstanding temporary or permanent residence applications with unparalleled success.
Legal Action – Tactical Urgent or Non-Urgent High Court Litigation
We will require you to merely sign off court papers prepared by our law firm that set out the factual matrix in a carefully constructed manner together with the legal remedies relied upon to compel the Department of Home Affairs to provide the delayed outcome.
You do not go to court but are merely expected to be available to sign off the court documents. It is simple as that.
- REJECTION OF APPLICATION FOR TEMPORARY OR PERMANENT RESIDENCE
We have noticed that foreign applicants are being refused more than ever before. There is nothing worse going to collect an outcome which is negative and this can lead to overstays, loss of work opportunities, unwanted return back to your country of origin and even separation from loved ones
- Foreigner applies for either temporary or permanent residence and finally receives a letter of rejection advising that the application is denied with written reasons.
- The reasons are in many instances vague, which prompts further confusion and uncertainty.
- An appeal must be lodged within 10 working days in a specific manner otherwise the decision stands.
Since time is of the essence we will need to see the letter of refusal and copy of papers submitted to the Department of Home Affairs.
We will immediately assess the facts against the law and determine whether the refusal is correct in law and advise on whether to pursue the refusal or not. There is no sense in pursuing a refusal when the decision is correct in law.
We will prepare a well-crafted and articulate appeal setting out the law against the facts.
We will set out the correct legal position and put the Department of Home Affairs to terms should they fail to reverse the decision within 30 days.
- EXCESSIVE DELAY IN APPEAL AGAINST REJECTION OF APPLICATION FOR TEMPORARY OR PERMANENT RESIDENCE
A foreign applicant submits and internal review request or appeals and no response is forthcoming and finalization is required.
Thirty days has elapsed since the date of submission of the appeal to the Department of Home Affairs.
Much like the excessive delays in making a decision pursuant to a temporary or permanent residence submission, the same legal solution applies when the Department of Home Affairs fails to make a decision on the submission of an internal appeal after 30 days.
Our immigration law firm provides cost-effective and professional High Court interventions against the Department of Home Affairs to finalize any outstanding temporary or permanent residence appeal applications with unparalleled success.
Legal Action – Tactical Urgent or Non-Urgent High Court Litigation
We will require you to merely sign off court papers prepared by our law firm that set out the factual matrix in a carefully constructed manner together with the legal remedies relied upon to compel the Department of Home Affairs to provide the delayed outcome on the appeal application.
You do not go to court but are merely expected to be available to sign off the court documents. It is simple as that.
- LEGALIZATION OF OVERSTAY – AUTHORISATION TO REMAIN IN SOUTH AFRICA AND OBTAIN A FORM 20
- A foreign person overstays his or her visa and wishes to remain in South Africa and apply for a new status.
- There are grounds of ‘good cause’ that will excuse the overstay and allow such foreign person the right to remain in South Africa and submit a new application without leaving South Africa or being deported or arrested.
Our lawyers will attend on the Inspectorate who are authorized to enforce the immigration laws to represent individuals who have been arrested or are fearful of being arrested due to either overstays or visa contraventions.
At Craig Smith & Associates we will consider the merits of the overstay and prepare a well articulated set of representations reflecting the factual background and legal principles at play in ‘explaining away’ such overstay.
We will attend on the Inspectorate or immigration officer concerned and make submissions and present the written ‘good cause’ to facilitate prospective or continued legal status in South Africa.
We will act in accordance with section 32 and regulation 30 of the Immigration Act and its associated Regulations and craft the factors that will go the core of the overstay and excuse such conduct.
There are times that this process may be expedited by proceeding to the High Court if the delays are beyond 30 days.
The difficulty in this process is in the event that the legalisation is refused and the foreigner is requested to either be prosecuted or ordered to leave South Africa. That is a matter that will then require further attendances.
- DEPARTING SOUTH AFRICA ON EXPIRED VISA – DECLARED UNDESIRABLE
In many instances foreign persons are urgently required to depart South Africa even though their visas may have expired or they are still waiting for a status in South Africa.
As indicated above, it matters not what the grounds may be that resulted in the overstay and departure. Moreover, it makes no difference if the foreigner is 1 day old or 100 years years old or if the overstay is one hour or 10 years.
The fact is, the immigration officer, on departure is obliged in terms of section 50, read with section 30, of the Immigration Act to act in a manner and impose a ban on the foreigner.
We would request that the foreigner who receives a document declaring him or her undesirable or disqualified from re-entering South Africa sends us the following:
- Copy of his Identity Page of Passport
- Copy of the visa that has expired
- Copy of the Form 19 or document declaring undesirability
- Reasons for the departure and overstay
- Any other mitigating factors such as medical notes, marriage or birth certificates of family
We would immediately assess the merits of the case by looking into the grounds why such foreign person overstayed and departed.
Our Department of Home Affairs allows an appeal to the Director-General within 10 days of the receipt of the Form 19 ban. It matters not whether you appeal to the Director-General or the Minister within the 10 days. However, if the 10 days have elapsed since receipt of the ban then you must appeal to the Minister.
We will assist in the preparation and submission of the appeal.
It is vital that the grounds of the overstay are carefully presented. Ignorance or excuses that are within one’s control are often ignored by the Department of Home Affairs. Thus, we would recommend you contact our law offices to discuss the grounds to have the ban lifted. We are successful in every matter thus far.
The only challenge can be that the Department of Home Affairs, in representing the Director-General or Minister, can take a long time in finalizing such matters. Thus, we would recommend a two-pronged attack:
Submit well prepared and meticulous legal document challenging the ban
If the appeal is beyond a reasonable time or very urgent we would follow up the ban with possible court action to expedite the outstanding decision on the ban.
In this way we can virtually guarantee success in achieving the desired result save for matters that are completely advised against by our law firm.
- OVERSTAYS AND BEING CHARGED AS A CRIMINAL OFFENCE
A foreign person is unsuccessful in a legalisation claim and is referred to the Magistrates Court for prosecution and appear in terms of section 56 of the Criminal Procedure Act and charged in terms of section 49(1)(a) of the Immigration Act pay a fine.
An immigration officer will prepare a notice to appear in court and pay a fine as an admission of guilt where the fine will be less than R5000.
The immigration officer will take the foreign person’s fingerprints in lieu of the appearance in the Court.
Upon the scheduled attendance, the foreign person will be prompted by the immigration officer to pay the fine. The immigration officer will stress that once the payment of the fine is made, he or she will obtain the necessary paperwork to apply for a status in South Africa.
Be very careful as the admission of guilt will attract a criminal record which will count against the foreign person for the rest of his or her life as in the case of any other criminal offence. It will have a massive impact on future travel and character assessments for work or other opportunities in the future.
At all costs do not fall prey to the immigration officer’s apparent sense of kindness. This is not so. You are being subjected to criminal conviction and will be a mark against you for the rest of your life.
Contact our law firm to be apprised of your rights and the prospects of success. We will attend on your behalf and provide legal representation in the criminal courts.
We will represent you on your first appearance and ensure that you are safely defended.
We will ensure that the aspect of continued detention is guaranteed whether as bail or right to be released on warning.
We will make representations to the senior state prosecutor with a view to withdrawing the charges against you.
Should the representations be turned down we will represent you in any trial.
Our considered legal view on a charged for an overstay is that it is in most cases unsustainable by the state prosecuting authorities as the Department of Home Affairs has incorrect and unlawfully criminalized an overstay, which is not a criminal offence.
- WAIVER OR EXEMPTION WRITTEN REQUESTS
- Certain foreign key individuals are sought to take office in South Africa to oversee important organisational strategies and interventions and the hence the need to acquire a work visas and in meeting all the typical work visa requirements is considered problematic under the immigration laws and therefore waiver relief is sought to reduce some of the more cumbersome, onerous or sensitive requirement for such work visa applications.
- Client is able to present good cause to acquire permanent residence based on a special circumstance.
- Client wished to conduct business with large foreign staff numbers without a corporate permit and certain key personnel require work permits without supplying all the legal requirements for good cause.
- Client wishes to establish a business but does not have the financial equivalent of R5 million to invest into the business and a waiver is sought to condone the non-compliance of the monetary requirements.
Our South African immigration lawyers will take instructions and make carefully articulated and well reasoned legal submissions on our letterhead on your behalf to the Waiver Section of the Department of Home Affairs in order to achieve relief against having to meet full compliance with all the legal requirements under the immigration laws.
Prepare professional and well-formulated Waiver or Exemption Request and submit to Waiver Section of the Department of Home Affairs in Pretoria.
- CIVIL LITIGATION – DAMAGES CLAIM FOR COMPENSATION AGAINST DEPARTMENT OF HOME AFFAIRS
A foreigner who feels abused or civilly wronged by Home Affairs and he or she wishes to ascertain his or rights of prospects of success and extent of damages as a result of such conduct by Home Affairs with a view to litigation.
We are one of the leading specialist immigration law firms to prepare and pronounce on legal opinions relating to the immigration laws to suitably inform any prospective litigant who is considering instituting legal action against the Department of Home Affairs for damages sustained due to wrongful action by the said Department.
We may either proceed on a contingency basis or agreed fee to litigate against the Department of Home Affairs for monetary damages claims.
Legal Opinion and Advice on merits.
Institute legal action in Magistrates or High Court for Damages Claim.
- CORPORATE RELOCATION AND STRATEGIC CONSULTING
Client wishes to relocate a branch of formally establish a large office in South Africa with the intention of employing large numbers of foreign staff to enter, work and depart South Africa in the most efficient manner.
We would take instructions and advise large corporate or commercial entities wishing to locate and establish offices in South Africa and provide a cost effective and comprehensive strategy document to facilitate the smooth and seamless introduction of foreign workforce in South Africa.
Prepare and present Strategic Immigration Plan with Permitting Solutions
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